3–17–04 Wednesday Vol. 69 No. 52 Mar. 17, 2004

Pages 12539–12780

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1 II Federal Register / Vol. 69, No. 52 / Wednesday, March 17, 2004

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2 III

Contents Federal Register Vol. 69, No. 52

Wednesday, March 17, 2004

Agriculture Department Defense Department See Commodity Credit Corporation See Air Force Department See Forest Service See Army Department See Rural Housing Service See Defense Logistics Agency See Rural Utilities Service See Engineers Corps NOTICES Air Force Department Meetings: RULES National Security Education Board, 12645 Privacy Act; implementation, 12540–12541 National Security Education Board Group of Advisors, 12644–12645 Army Department See Engineers Corps Defense Logistics Agency NOTICES NOTICES Patent licenses; non-exclusive, exclusive, or partially Privacy Act: exclusive: Computer matching programs, 12645 Gated auscultatory device, 12645 Skin temperature feedback for microclimate cooling, Economics and Statistics Administration 12645 NOTICES Meetings: Barry M. Goldwater Scholarship and Excellence in Decennial Census Advisory Committee, 12640–12641 Education Foundation NOTICES Employment and Training Administration Meetings; Sunshine Act, 12640 NOTICES Adjustment assistance: Centers for Disease Control and Prevention Anacom Medtek, 12713 NOTICES Meetings: Energy Department Scientific Counselors Board, 12697–12698 See Federal Energy Regulatory Commission NOTICES Children and Families Administration Consumer products; energy conservation program: NOTICES Fisher & Paykel Appliances Ltd.; waiver from clothes State median income estimates for four-person families washer test procedures, 12646–12647 (2005 FY), 12698–12700 Grants and cooperative agreements; availability, etc.: Extreme scale scientific computation; operating and Coast Guard runtime systems research, 12648–12651 RULES Drawbridge operations: Engineers Corps New Jersey, 12541–12542 NOTICES Navigation aids: Environmental statements; notice of intent: Alternatives to incandescent lights and standards for new Yuba County, CA; Yuba River Basin Project, 12646 lights in private aids; correction, 12541 Ports and waterways safety: Environmental Protection Agency New Tacoma Narrows Bridge Construction Project, WA; RULES safety zone Hazardous waste program authorizations: Correction, 12542 Arizona, 12544–12547 PROPOSED RULES Pesticides; tolerances in food, animal feeds, and raw Drawbridge operations: agricultural commodities: Florida, 12601–12603 Pesticide tolerance fees; collection suspension, 12542– 12544 Commerce Department PROPOSED RULES See Economics and Statistics Administration Air pollutants, hazardous; national emission standards; and See International Trade Administration air pollution; standards of performance for new See National Oceanic and Atmospheric Administration stationary sources: See Patent and Trademark Office Electric utility steam generating units, 12603–12604 Superfund program: Commodity Credit Corporation National oil and hazardous substances contingency NOTICES plan— Grants and cooperative agreements; availability, etc.: National priorities list update, 12604–12612 Farm and Ranch Lands Protection Program, 12632–12637 NOTICES Air programs: Commodity Futures Trading Commission State implementation plans; adequacy status for NOTICES transporation conformity purposes— Meetings; Sunshine Act, 12644 Alaska, 12651

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Meetings: Federal Energy Regulatory Commission Association of American Pesticide Control Officials, State RULES FIFRA Issues Research and Evaluation Group, 12652 Outer Continental Shelf Lands Act: Exposure Modeling Work Group, 12652–12653 Service reporting requirements; CFR part removed, Pesticide, food, and feed additive petitions: 12539–12540 Circle One Global, Inc., 12659–12664 E.I. DuPont de Nemours & Co., 12664–12670 Federal Highway Administration Falcom Lab LCC, 12670–12676 NOTICES Interregional Research Project (No. 4), 12676–12687 Environmental statements; availability, etc.: Pesticide programs: District of Columbia, 12730–12731 Risk assessments— Environmental statements; notice of intent: Arsenic, etc., 12653–12655 Forsyth County, NC, 12731–12732 Pesticide registration, cancellation, etc.: Watauga and Caldwell Counties, NC; rescission, 12732 Atofina Chemicals, Inc., et al., 12655–12658 Bayer CropScience LP, 12658–12659 Federal Maritime Commission Pesticide registration service fees; list, 12771–12780 NOTICES Pesticides; emergency exemptions, etc.: Agreements filed, etc., 12696 Pyriproxyfen, etc., 12687–12688 Ocean transportation intermediary licenses: Toxic and hazardous substances control: ARC Global Logistics, Inc., et al., 12696 New chemicals— Districargo, Inc., 12696–12697 Receipt and status information, 12688–12693 Water supply: Federal Motor Carrier Safety Administration Public water supply supervision program— NOTICES Maryland, 12693–12694 Motor carrier safety standards: Driver qualifications— Executive Office of the President Allen, Percy B., et al.; vision requirement exemptions, See Science and Technology Policy Office 12732–12733

Farm Credit Administration Federal Railroad Administration NOTICES NOTICES Standardized loan data, systematic collection; comment Orders: request, 12694–12696 Automatic train control and advanced civil speed enforcement system; requirements for Northeast Corridor railroads; amendment, 12733–12734 Federal Aviation Administration PROPOSED RULES Federal Reserve System Airworthiness directives: NOTICES Aerospatiale, 12589–12591 Banks and bank holding companies: Airbus, 12596–12598 Formations, acquisitions, and mergers, 12697 BAE Systems (Operations) Ltd., 12585–12587, 12592– 12594 Financial Management Service Bombardier, 12587–12589 See Fiscal Service Dornier, 12594–12596 Fokker, 12580–12585 Fiscal Service NOTICES Advisory circulars; availability, etc.: NOTICES Turbine engines; initial maintenance inspection test, Surety companies acceptable on Federal bonds: 12730 Clearwater Insurance Co.; name change, 12736 Fish and Wildlife Service Federal Communications Commission RULES RULES Endangered and threatened species: Common carrier services: Critical habitat designations— Jurisdictional separations reform and referral to Federal- La Graciosa thistle, 12553–12569 State Joint Board, 12548–12553 PROPOSED RULES Television broadcasting: Endangered and threatened species: Digital cable products; commercial availability of Critical habitat designations— navigation devices and compatibility between cable Topeka shiner, 12619–12631 systems and consumer electronics equipment, 12547 NOTICES PROPOSED RULES Agency information collection activities; proposals, Radio frequency devices: submissions, and approvals, 12708–12709 Broadband power line systems, 12612–12618 Radio stations; table of assignments: Food and Drug Administration Illinois, 12618–12619 PROPOSED RULES Medical devices: Federal Deposit Insurance Corporation Gastroenterology-urology devices— PROPOSED RULES External penile rigidity, device classification, 12598– Transactions with affiliates; filing procedures, 12571–12580 12601

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NOTICES Labor Department Agency information collection activities; proposals, See Employment and Training Administration submissions, and approvals, 12700 See Mine Safety and Health Administration Reports and guidance documents; availability, etc.: Medical devices— Maritime Administration External penile rigidity devices; Class II special NOTICES controls, 12701–12702 Agency information collection activities; proposals, submissions, and approvals, 12734 Forest Service NOTICES Mine Safety and Health Administration Environmental statements; notice of intent: NOTICES Lincoln National Forest, NM, 12637 Agency information collection activities; proposals, submissions, and approvals, 12713–12714 General Services Administration NOTICES National Aeronautics and Space Administration Acquisition regulations: NOTICES Not Mission Capable Supply Label (OF 83); form Meetings: cancellation, 12697 Aerospace Safety Advisory Panel, 12714

Health and Human Services Department National Highway Traffic Safety Administration See Centers for Disease Control and Prevention NOTICES See Children and Families Administration Motor vehicle theft prevention standards; exemption See Food and Drug Administration petitions, etc.: See National Institutes of Health General Motors Corp., 12734–12736 NOTICES Meetings: National Institutes of Health Blood Safety and Availability Advisory Committee; NOTICES correction, 12697 Meetings: National Cancer Institute, 12702 Homeland Security Department National Institute of Child Health and Human See Coast Guard Development, 12704–12705 National Institute of Diabetes and Digestive and Kidney Housing and Urban Development Department Diseases, 12702–12703 NOTICES National Institute of Environmental Health Sciences, Agency information collection activities; proposals, 12702 submissions, and approvals, 12707–12708 National Institute of Mental Health, 12704 National Institute on Alcohol Abuse and Alcoholism, Interior Department 12703–12704 See Fish and Wildlife Service Scientific Review Center, 12705–12707 See National Park Service National Oceanic and Atmospheric Administration Internal Revenue Service RULES NOTICES Fishery conservation and management: Meetings: Alaska; fisheries of Exclusive Economic Zone— Taxpayers Advisors Panels, 12736 Pacific cod, 12569–12570 Pollock, 12570 International Trade Administration NOTICES NOTICES Meetings: Antidumping: National Sea Grant Review Panel, 12642–12643 Pasta from— Permits: Italy and Turkey, 12641 Marine mammals, 12643 Petroleum wax candles from— China, 12641–12642 National Park Service Countervailing duties: NOTICES Pasta from— Meetings: Italy, 12642 Cape Krusenstern National Monument Subsistence Resource Commission, 12709 International Trade Commission Chesapeake and Ohio Canal National Historical Park NOTICES Advisory Commission, 12709–12710 Import investigations, 12711–12712 Delaware Water Gap National Recreation Area Citizen Advisory Commission, 12710 Justice Department Gates of Arctic National Park Subsistence Resource See Justice Programs Office Commission, 12710 Great Sand Dunes National Park Advisory Council, 12710 Justice Programs Office Kobuk Valley National Park Subsistence Resource NOTICES Commission, 12711 Agency information collection activities; proposals, National Preservation Technology and Training Board, submissions, and approvals, 12712–12713 12711

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Nuclear Regulatory Commission NOTICES NOTICES Self-regulatory organizations; proposed rule changes: Regulatory guides; issuance, availability, and withdrawal, American Stock Exchange LLC, 12719–12720 12717 Chicago Board Options Exchange, Inc., 12720–12724 Applications, hearings, determinations, etc.: Chicago Stock Exchange, Inc., 12724 Sequoyah Fuels Corp., 12715–12716 International Securities Exchange, Inc., 12724–12727 Westinghouse Electric Co., 12716–12717 National Association of Securities Dealers, Inc., 12727– 12730 Patent and Trademark Office Applications, hearings, determinations, etc.: NOTICES Covanta Energy Corp., 12718 Agency information collection activities; proposals, Drew Industries Inc., 12718–12719 submissions, and approvals, 12643–12644 SCBT Financial Corp., 12719

Personnel Management Office Transportation Department NOTICES See Federal Aviation Administration Meetings: See Federal Highway Administration Federal Prevailing Rate Advisory Committee, 12717– See Federal Motor Carrier Safety Administration 12718 See Federal Railroad Administration Public Debt Bureau See Maritime Administration See Fiscal Service See National Highway Traffic Safety Administration Rural Housing Service Treasury Department NOTICES See Fiscal Service Grants and cooperative agreements; availability, etc.: See Internal Revenue Service Multi-family and single family housing programs, 12737– 12750 Section 514 Farm Labor Housing Loans and Section 516 Separate Parts In This Issue Farm Labor Housing Grants for Off-Farm Housing, 12637–12638 Part II Section 515 Rural Rental Housing Program, 12638–12639 Agriculture Department, Rural Housing Service, 12737– Section 533 Housing Preservation Program, 12639 12750 Section 538 Guaranteed Rural Rental Housing Program, 12639 Part III Rural Utilities Service Securities and Exchange Commission, 12751–12770 NOTICES Agency information collection activities; proposals, Part IV submissions, and approvals, 12639–12640 Environmental Protection Agency, 12771–12780 Science and Technology Policy Office NOTICES Meetings: Reader Aids President’s Council of Advisors on Science and Consult the Reader Aids section at the end of this issue for Technology, 12694 phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws. Securities and Exchange Commission To subscribe to the Federal Register Table of Contents PROPOSED RULES LISTSERV electronic mailing list, go to http:// Investment companies: listserv.access.gpo.gov and select Online mailing list Portfolio managers of registered management investment archives, FEDREGTOC-L, Join or leave the list (or change companies; disclosure requirements, 12751–12770 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.

12 CFR Proposed Rules: 303...... 12571 324...... 12571 14 CFR Proposed Rules: 39 (8 documents) ...... 12580, 12582, 12585, 12587, 12589, 12592, 12594, 12596 17 CFR Proposed Rules: 239...... 12752 249...... 12752 270...... 12752 274...... 12752 18 CFR 330...... 12539 385...... 12539 21 CFR Proposed Rules: 876...... 12598 32 CFR 806b...... 12540 33 CFR 66...... 12541 117...... 12541 165...... 12542 Proposed Rules: 117...... 12601 40 CFR 180...... 12542 271...... 12544 Proposed Rules: 60...... 12603 63...... 12603 300 (3 documents) ...... 12604, 12606, 12608 47 CFR 15...... 12547 36...... 12548 76...... 12547 Proposed Rules: 15...... 12612 73...... 12618 50 CFR 17...... 12553 679 (3 documents) ...... 12569, 12570 Proposed Rules: 17...... 12619

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Rules and Regulations Federal Register Vol. 69, No. 52

Wednesday, March 17, 2004

This section of the FEDERAL REGISTER Background and Discussion certain actions from this requirement as contains regulatory documents having general 2. On April 10, 2000, the Commission not having a significant effect on the applicability and legal effect, most of which human environment.8 The removal of are keyed to and codified in the Code of issued a rule requiring all entities that move natural gas on or across the Outer regulations here qualifies for such an Federal Regulations, which is published under exclusion.9 Therefore, no environmental 50 titles pursuant to 44 U.S.C. 1510. Continental Shelf to report certain information regarding their affiliations, analysis is necessary, and none has been done. The Code of Federal Regulations is sold by rates, and conditions of service.2 On the Superintendent of Documents. Prices of January 11, 2002, the United States Regulatory Flexibility Act Certification new books are listed in the first FEDERAL District Court for the District of REGISTER issue of each week. 5. The Regulatory Flexibility Act of Columbia determined that the 1980 (RFA) 10 generally requires a Commission lacked authority under the description and analysis of final rules DEPARTMENT OF ENERGY OCSLA to promulgate such reporting that will have significant economic 3 requirements, a determination impact on a substantial number of small 4 Federal Energy Regulatory subsequently affirmed. In view of the entities. The Commission is not Commission courts’ finding, the Commission is required to make such analyses if a rule removing the reporting requirements set would not have such an effect.11 The 18 CFR Parts 330 and 385 forth in part 330 of Subchapter O of its Commission found that promulgation of regulations. the regulations at issue would not have [Docket No. RM99–5–000; Order No. 639– B] Information Collection Statement a significant economic impact on small entities and certifies that the removal of 3. There is no need for Office of these regulations will not have a Regulations Under the Outer Management and Budget (OMB) Continental Shelf Lands Act Governing 5 significant economic impact on a review under Section 3507(d) of the substantial number of small entities. the Movement of Natural Gas on Paperwork Reduction Act of 1995,6 Facilities on the Outer Continental Accordingly, no regulatory flexibility since this final rule eliminates analysis is required. Shelf information collection and Issued March 8, 2004. recordkeeping requirements. The Document Availability AGENCY: Federal Energy Regulatory removal of the OCSLA reporting 6. In addition to publishing the full Commission, Energy. requirements reduces the Commission’s text of this document in the Federal FERC–545 data collection burden by ACTION: Final rule. Register, the Commission provides all 1,760 hours and eliminates the $88,000 interested persons an opportunity to SUMMARY: The Federal Energy annual cost. view and/or print the contents of this Regulatory Commission (Commission) is Environmental Analysis document via the Internet through removing certain regulations FERC’s Home Page (http://www.ferc.gov) promulgated under the Outer 4. The Commission is required to and in FERC’s Public Reference Room Continental Shelf Lands Act following a prepare an Environmental Assessment during normal business hours (8:30 a.m. judicial determination that the or an Environmental Impact Statement to 5 p.m. Eastern time) at 888 First Commission lacked authority to issue for any action that may have a Street, NE., Room 2A, Washington DC the regulations. significant adverse effect on the human 20426. environment.7 However, the EFFECTIVE DATE: The rule is effective 7. From FERC’s Web site on the Commission has categorically excluded March 17, 2004. Internet, this information is available in the eLibrary (formerly FERRIS). The full FOR FURTHER INFORMATION CONTACT: 2 Regulations Under the OCSLA Governing the text of this document is available on Gordon Wagner, Office of the General Movement of Natural Gas on Facilities on the Outer eLibrary in PDF and Microsoft Word Counsel, Federal Energy Regulatory Continental Shelf, Order No. 639, 65 FR 20354 format for viewing, printing, and/or Commission, 888 First Street, NE., (Apr. 17, 2000), FERC Statutes and Regulations, Regulations Preambles July 1996–December 2000 downloading. To access this document Washington, DC 20426, (202) 502–8947. ¶31,097 (2000); Order on Reh’g, Order No. 639–A, in eLibrary, type the docket number SUPPLEMENTARY INFORMATION: 65 FR 47294 (Aug. 2, 2000), FERC Statutes and Regulations, Regulations Preambles July 1996– excluding the last three digits of this Before Commissioners: Pat Wood, III, December 2000 ¶31,103 (2000), Order Denying document in the docket number field Chairman; Nora Mead Brownell, Joseph Clarification, 93 FERC ¶61,274 (2000); Order and follow other directions on the T. Kelliher, and Suedeen G. Kelly. Denying Clarification, 93 FERC ¶61,274 (2000); search page. Order on Request for Confidential Treatment, 96 Introduction FERC ¶61,296 (2001); Order Clarifying Prior Order, 8. User assistance is available for 97 FERC ¶61,040 (2001). eLibrary and other aspects of FERC’s 1. The Federal Energy Regulatory 3 Chevron U.S.A., Inc. v. FERC, 193 F. Supp. 2d Web site during normal business hours. Commission (Commission) is removing 54 (D.DC 2002). For assistance, contact FERC Online certain regulations promulgated under 4 Williams Companies v. FERC, 345 F.3d 910 (DC Support at the Outer Continental Shelf Lands Act Cir. 2003). [email protected] or toll (OCSLA) 1 following a judicial 5 5 CFR 1320.11. 6 44 U.S.C. 3507(d). determination that the Commission 8 7 Order No. 486, Regulations Implementing the 18 CFR 380.4(a)(2)(ii). lacked authority to issue the regulations. National Environmental Policy Act, 52 FR 47897 9 18 CFR 380.4. (Dec. 17, 1987), FERC Stats. & Regs. Preambles 10 5 U.S.C. 601–612. 1 43 U.S.C. 1301–1356. 1986–1990 ¶30,783 (1987). 11 5 U.S.C. 605(b).

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free at (866) 208–3676, or for TTY, DEPARTMENT OF DEFENSE Public Law 96–511, ‘‘Paperwork contact (202) 502–8659. Reduction Act’’ (44 U.S.C. Chapter 35) Department of the Air Force Effective Date It has been certified that Privacy Act 32 CFR Part 806b rules for the Department of Defense 9. The removal of the OCSLA impose no information requirements reporting regulations is effective beyond the Department of Defense and immediately, pursuant to 5 U.S.C. [Air Force Instruction 37–132] that the information collected within the Department of Defense is necessary 533(b). The Commission is issuing this Privacy Act; Implementation as a final rule without a period for and consistent with 5 U.S.C. 552a, public comment, because under 5 U.S.C. AGENCY: Department of the Air Force, known as the Privacy Act of 1974. 533(b), notice and comment procedures DoD. Section 202, Public Law 104–4, are unnecessary where a rulemaking ACTION: Final rule. ‘‘Unfunded Mandates Reform Act’’ concerns only agency procedure and It has been certified that the Privacy practice or where the agency finds SUMMARY: The Department of the Air Act rulemaking for the Department of notice and comment unnecessary. The Force is adding an exemption rule for provisions of 5 U.S.C. 801 regarding Defense does not involve a Federal the system of records F071 JTF A, mandate that may result in the Congressional review of final rules do entitled ‘‘Computer Network Crime Case expenditure by State, local and tribal not apply to this final rule, because this System’’. The exemptions [(j)(2) and governments, in the aggregate, or by the rule concerns agency procedure and (k)(2)] increase the value of the system private sector, of $100 million or more practice and will not substantially affect of records for law enforcement and that such rulemaking will not 12 the rights of non-agency parties. purposes. significantly or uniquely affect small The proposed rule was published on List of Subjects governments. December 9, 2003, at 68 FR 68578. No 18 CFR Part 330 comments were received; therefore, the Executive Order 13132, ‘‘Federalism’’ Department of the Air Force is adopting It has been certified that the Privacy Reporting and recordkeeping the rule as published below. Act rules for the Department of Defense requirements. EFFECTIVE DATE: February 10, 2004. do not have federalism implications. The rules do not have substantial direct 18 CFR Part 385 FOR FURTHER INFORMATION CONTACT: Mrs. effects on the States, on the relationship Anne Rollins at (703) 601–4043 or DSN Administrative practice and between the National Government and 329–4043. procedure, Electric utilities, Penalties, the States, or on the distribution of Pipelines, Reporting and recordkeeping SUPPLEMENTARY INFORMATION: power and responsibilities among the requirements. Executive Order 12866, ‘‘Regulatory various levels of government. By the Commission. Planning and Review’’ List of Subjects in 32 CFR Part 806b Linda Mitry, It has been determined that Privacy Privacy. Acting Secretary. Act rules for the Department of Defense I Accordingly, 32 CFR part 806b is to be are not significant rules. The rules do I In consideration of the foregoing, amended as follows: not (1) Have an annual effect on the under the authority of U.S.C. 825h, the economy of $100 million or more or Commission amends 18 CFR Chapter I as PART 806b—AIR FORCE PRIVACY adversely affect in a material way the ACT PROGRAM follows: economy; a sector of the economy; I SUBCHAPTER O—REGULATIONS UNDER productivity; competition; jobs; the 1. The authority citation for 32 CFR THE OUTER CONTINENTAL SHELF LANDS environment; public health or safety; or part 806b continues to read as follows: ACT (OCSLA)—[REMOVED] State, local, or tribal governments or Authority: Pub. L. 93–579, 88 Stat. 1896 (5 communities; (2) Create a serious U.S.C. 552a). I 1. Subchapter O, consisting of part 330, inconsistency or otherwise interfere I is removed and reserved. with an action taken or planned by 2. Appendix D to part 806b is amended another Agency; (3) Materially alter the by adding paragraph (e)(8) to read as PART 385—RULES OF PRACTICE AND follows: PROCEDURE budgetary impact of entitlements, grants, user fees, or loan programs, or Appendix D to Part 806b—General and the rights and obligations of recipients I Specific Exemptions 2. The authority citation for part 385 thereof; or (4) Raise novel legal or policy * * * * * continues to read as follows: issues arising out of legal mandates, the (e) * * * Authority: 5 U.S.C. 551–557; 15 U.S.C. President’s priorities, or the principles (8) System identifier and name: F071 JTF 717–717z, 3301–3432; 16 U.S.C. 791a–8225r, set forth in this Executive order. A, Computer Network Crime Case System. 2601–2645; 31 U.S.C. 3701, 9701; 42 U.S.C. Public Law 96–354, ‘‘Regulatory (i) Exemption: (A) Parts of this system may 7101–7352; 49 U.S.C. 60502; 49 App. U.S.C. Flexibility Act’’ (5 U.S.C. Chapter 6) be exempt pursuant to 5 U.S.C. 552a(j)(2) if 1–85 (1988). the information is compiled and maintained It has been certified that Privacy Act by a component of the agency, which I 3. In § 385.2011, paragraph (b)(6) is rules for the Department of Defense do performs as its principle function any removed. not have significant economic impact on activity pertaining to the enforcement of criminal laws. Any portion of this system of [FR Doc. 04–5761 Filed 3–16–04; 8:45 am] a substantial number of small entities records which falls within the provisions of because they are concerned only with BILLING CODE 6717–01–P 5 U.S.C. 552a(j)(2) may be exempt from the the administration of Privacy Act following subsections of 5 U.S.C. 552a(c)(3), systems of records within the (c)(4), (d), (e)(1), (e)(2), (e)(3), (e)(4)(G), (H), 12 See 5 U.S.C. 804(3)(B) (2002). Department of Defense. and (I), (e)(5), (e)(8), (f), and (g).

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(B) Investigatory material compiled for law investigative process. It is the nature of law FOR FURTHER INFORMATION CONTACT: For enforcement purposes, other than material enforcement for investigations to uncover the questions on this correction notice, call within the scope of subsection 5 U.S.C. commission of illegal acts at diverse stages. or e-mail Dan Andrusiak, Office of Aids 552a(j)(2), may be exempt pursuant to 5 It is frequently impossible to determine to Navigation (G–OPN), U.S. Coast U.S.C. 552a(k)(2). However, if an individual initially what information is accurate, is denied any right, privilege, or benefit for relevant, timely, and least of all complete. Guard, at telephone 202–267–0327, or which he would otherwise be entitled by With the passage of time, seemingly [email protected]. Federal law or for which he would otherwise irrelevant or untimely information may SUPPLEMENTARY INFORMATION: be eligible, as a result of the maintenance of acquire new significance as further the information, the individual will be investigation brings new details to light. Need for Correction provided access to the information exempt to (H) From subsection (e)(8) because the The final rule, as published, the extent that disclosure would reveal the notice requirements of this provision could identify of a confidential source. present a serious impediment to law contained a telephone number in 33 Note: When claimed, this exemption enforcement by revealing investigative CFR 66.01–5 in which two digits were allows limited protection of investigative techniques, procedures, and existence of transposed. The correct telephone reports maintained in a system of records confidential investigations. number is (800) 368–5647. (I) From subsection (f) because the agency’s used in personnel or administrative actions. Correction of Publication Any portion of this system of records which rules are inapplicable to those portions of the falls within the provisions of 5 U.S.C. system that are exempt and would place the § 66.01–5 [Amended] 552a(k)(2) may be exempt from the following burden on the agency of either confirming or subsections of 5 U.S.C. 552a(c)(3), (d), (e)(1), denying the existence of a record pertaining I In rule FR Doc. 03–29650 published on (e)(4)(G), (H) and (I), and (f). to a requesting individual might in itself December 8, 2003, (68 FR 68235), make (ii) Authority: 5 U.S.C. 552a(j)(2) and (k)(2). provide an answer to that individual relating the following correction. On page 68238, (iii) Reasons: (A) From subsection (c)(3) to an on-going investigation. The conduct of in the third column, in the introductory because the release of accounting of a successful investigation leading to the text of § 66.01–5, remove the telephone disclosure would inform a subject that he or indictment of a criminal offender precludes number ‘‘(800) 368–5674’’, and, in its the applicability of established agency rules she is under investigation. This information place, add ‘‘(800) 368–5647’’. would provide considerable advantage to the relating to verification of record, disclosure subject in providing him or her with of the record to that individual, and record Dated: March 9, 2004. knowledge concerning the nature of the amendment procedures for this record David S. Belz, investigation and the coordinated system. Rear Admiral, U.S. Coast Guard, Assistant investigative efforts and techniques (J) From subsection (g) because this system Commandant for Operations. employed by the cooperating agencies. This of records should be exempt to the extent would greatly impede criminal law that the civil remedies relate to provisions of [FR Doc. 04–6034 Filed 3–16–04; 8:45 am] enforcement. 5 U.S.C. 552a from which this rule exempts BILLING CODE 4910–15–P (B) From subsection (c)(4) and (d), because the system. notification would alert a subject to the fact * * * * * that an open investigation on that individual DEPARTMENT OF HOMELAND is taking place, and might weaken the on- Dated: March 11, 2004. SECURITY going investigation, reveal investigative L.M. Bynum, techniques, and place confidential Alternate OSD Federal Register Liaison Coast Guard informants in jeopardy. Officer, Department of Defense. (C) From subsection (e)(1) because the [FR Doc. 04–5978 Filed 3–16–04; 8:45 am] 33 CFR Part 117 nature of the criminal and/or civil investigative function creates unique BILLING CODE 5001–06–M [CGD01–04–020] problems in prescribing a specific parameter in a particular case with respect to what Drawbridge Operation Regulations: information is relevant or necessary. Also, DEPARTMENT OF HOMELAND Hackensack River, NJ information may be received which may SECURITY relate to a case under the investigative AGENCY: Coast Guard, DHS. jurisdiction of another agency. The Coast Guard ACTION: Notice of temporary deviation maintenance of this information may be from regulations. necessary to provide leads for appropriate 33 CFR Part 66 law enforcement purposes and to establish SUMMARY: The Commander, First Coast patterns of activity that may relate to the [USCG–2000–7466] Guard District, has issued a temporary jurisdiction of other cooperating agencies. (D) From subsection (e)(2) because RIN 1625–AA55 deviation from the drawbridge operation collecting information to the fullest extent regulations for the Newburyport US1 possible directly from the subject individual Allowing Alternatives to Incandescent Bridge, mile 3.4, across the Merrimack may or may not be practical in a criminal Lights, and Establishing Standards for River between Newburyport and and/or civil investigation. New Lights, in Private Aids to Salisbury, Massachusetts. Under this (E) From subsection (e)(3) because Navigation temporary deviation the bridge need supplying an individual with a form operate only one bascule leaf for bridge AGENCY: Coast Guard, DHS. containing a Privacy Act Statement would openings from March 15, 2004 through tend to inhibit cooperation by many ACTION: Final rule; correction. individuals involved in a criminal and/or April 2, 2004. The southeast bascule leaf civil investigation. The effect would be SUMMARY: The Coast Guard published in may remain in the closed position to somewhat adverse to established the Federal Register of December 8, navigation. This temporary deviation is investigative methods and techniques. 2003 a final rule concerning private aids necessary to facilitate emergency (F) From subsections (e)(4)(G), (H), and (I) to navigation and the use of light- structural repairs at the bridge. because this system of records is exempt emitting diodes (LEDs). The final rule, DATES: This deviation is effective from from the access provisions of subsection (d). as published, contained an incorrect March 15, 2004 through April 2, 2004. (G) From subsection (e)(5) because the requirement that records be maintained with telephone number. This document FOR FURTHER INFORMATION CONTACT: John attention to accuracy, relevance, timeliness, corrects that error. McDonald, Project Officer, First Coast and completeness would unfairly hamper the DATES: Effective March 17, 2004. Guard District, at (617) 223–8364.

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SUPPLEMENTARY INFORMATION: The DEPARTMENT OF HOMELAND ENVIRONMENTAL PROTECTION Newburyport US1 Bridge has a vertical SECURITY AGENCY clearance in the closed position of 35 feet at mean high water and 42 feet at Coast Guard 40 CFR Part 180 mean low water. The existing [OPP–2004–0084; FRL–7349–7] drawbridge operation regulations are 33 CFR Part 165 listed at 33 CFR 117.605(a). Pesticide Tolerance Fees; Suspension of Collection The bridge owner, Massachusetts [CGD13–03–025] Highway Department (MHD), requested AGENCY: Environmental Protection a temporary deviation from the RIN 1625–AA00 Agency (EPA). drawbridge operation regulations to ACTION: Final rule. facilitate emergency structural Safety Zone Regulations, New Tacoma maintenance, the replacement of the Narrows Bridge Construction Project; SUMMARY: EPA is amending its concrete filled grid deck on the Correction regulations governing payment of fees southeast bascule leaf, at the bridge. The for tolerance petitions and related AGENCY: southeast bascule leaf must remain in Coast Guard, DHS. activities to reflect the statutory requirement that the fees for tolerance the closed position to perform these ACTION: Temporary final rule; petitions and related tolerance activities repairs. The north bascule leaf will open correction. will not be collected during the period fully for the passage of vessel traffic beginning on October 1, 2003, and during these repairs. SUMMARY: The Coast Guard published in ending September 30, 2008. Under new The Newburyport US1 Bridge has not the Federal Register of February 5, legislation signed by the President on received any requests to open during the 2004, a temporary final rule concerning January 23, 2004, the collection of such month of March for the past seven years. the safety zone for the new Tacoma fees is prohibited until after September Narrows Bridge construction project. The bridge owner did not provide the 30, 2008. Collection is expected to The wording in § 165.T13–016 required thirty-day notice to the Coast resume on October 1, 2008. EPA is Background and Purpose is being Guard for this deviation; however, this issuing this final rule without notice corrected to accurately reflect the deviation was approved because the and opportunity for public comment location of the new piers. This repairs are necessary repairs that must because there is good cause to do so document makes the clarification. within the meaning of the be performed with undue delay in order Administrative Procedure Act (APA). to assure the continued safe reliable DATES: The temporary final rule DATES: operation of the bridge. reinstated and revised in the Federal This final rule is effective March 11, 2004. Under this temporary deviation the Register (69 FR 5465) was effective on FOR FURTHER INFORMATION CONTACT: Jean Newburyport US1 Bridge may keep the February 6, 2004. This correction is effective on March 1, 2004. M. Frane, Field and External Affairs southeast bascule leaf in the closed Division (7506C), Office of Pesticide position from March 15, 2004 through FOR FURTHER INFORMATION CONTACT: Programs, Environmental Protection April 2, 2004. The north bascule leaf LTJG. Tyana Thayer c/o Captain of the Agency, 1200 Pennsylvania Ave., NW., will continue to open for the passage of Port Puget Sound, 1519 Alaskan Way Washington, DC 20460-0001; telephone vessel traffic according to the existing South, Seattle, Washington 98134, (206) number: (703) 305–5944; fax number: drawbridge operation regulations which 217–6222. (703) 305–5884; e-mail address: require a one-hour advance notice by [email protected]. calling the number posted at the bridge. SUPPLEMENTARY INFORMATION: The Coast Guard published a document in the SUPPLEMENTARY INFORMATION: This deviation from the operating Federal Register on February 5, 2004 I. General Information regulations is authorized under 33 CFR (69 FR 5465). In that document, the 117.35(b), and will be performed with location described in Background and A. Does this Action Apply to Me? all due speed in order to return the Purpose was inaccurate. This correction You may be potentially affected by bridge to normal operation as soon as amends the regulatory text published on this action if you register pesticide possible. February 5, 2004. In rule FR Doc 04– products for food or feed uses, or submit Dated: March 5, 2004. 2514 published on February 5, 2004 (69 petitions for pesticide tolerances. Vivien S. Crea, FR 5465), make the following Additionally, this action may be of correction. On 69 FR page 5465, column interest to agricultural producers, food Rear Admiral, U.S. Coast Guard, Commander, manufacturers, or other pesticide First Coast Guard District. 3 in Background and Purpose remove the word ‘‘north’’ and add in its place manufacturers. Potentially affected [FR Doc. 04–6032 Filed 3–16–04; 8:45 am] categories and entities may include, but the word ‘‘south.’’ BILLING CODE 4910–15–P are not limited to: Dated: March 1, 2004. • Crop production (NAICS 111) Danny Ellis, • Animal production (NAICS 112) • Food processing (NAICS 311) Captain, U.S. Coast Guard, Captain of the • Port, Puget Sound. Pesticide manufacturers (NAICS 32532) [FR Doc. 04–6033 Filed 3–16–04; 8:45 am] This listing is not intended to be BILLING CODE 4910–15–P exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American

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Industrial Classification System II. Current Tolerance Fees petition, or petition-associated tolerance (NAICS) codes have been provided to Under the Federal Food, Drug, and activity covered by section 408(m)(1) of assist you and others in determining Cosmetic Act (FFDCA) (21 U.S.C. 346a), FFDCA. whether this action might apply to EPA establishes pesticide tolerances and IV. Good Cause Exemption under the certain entities. To determine whether exemptions from the requirement of a APA you or your business may be affected by tolerance for pesticide chemical EPA has determined that notice and this action, you should carefully residues in food and feed. Under section examine the provisions in Unit II. If you comment on this amendment to the 408(d) of FFDCA, tolerances are tolerance fee regulations is not required. have any questions regarding the established upon the petition of Under the APA (5 U.S.C. 553(b)(3)(B)), applicability of this action to a interested parties, such as pesticide a rule is exempt from notice and public particular entity, consult the person producers or user groups. Under section comments requirements ‘‘when the FOR FURTHER INFORMATION listed under 408(e) of FFDCA, EPA may also agency for a good cause finds (and CONTACT. establish tolerances on its own incorporates the finding and a brief initiative. B. How Can I Get Copies of this statements of reasons therefor in the Section 408(m) of FFDCA requires Document and Other Related rule issued) that notice and public EPA to establish a fee system to support Information? procedure thereon are impracticable, the tolerance program. Prior to the 1996 unnecessary, or contrary to the public 1. Docket. EPA has established an enactment of amendments to the FFDCA interest.’’ official public docket for this action under the Food Quality Protection Act, Section 501(d)(2) of the Consolidated under docket identification (ID) number this same authority was found in section Appropriations Act of 2004 suspends OPP–2004–0084. The official public 408(o) of FFDCA. Under that prior the collection of fees under the docket consists of the documents authority, EPA issued regulations authority of section 408(m)(1) of specifically referenced in this action, establishing fees for pesticide petitions. FFDCA. Accordingly, this rule is merely any public comments received, and The primary fee regulations are located a housekeeping measure that conforms other information related to this action. in 40 CFR 180.33, and are referred to in the regulatory text to the statute. Although a part of the official docket, § 180.31 (pertaining to temporary Because the requirement is imposed by tolerances) and in § 180.32 (pertaining the public docket does not include statute, the revisions to the regulatory to amendment and repeal of tolerances). Confidential Business Information (CBI) text do not have any substantive effect. The fee regulations are updated Since the tolerance fee prohibition is or other information whose disclosure is annually to reflect the cost of statutory, public comment could not restricted by statute. The official public government salary increases. change the result dictated by the statute, docket is the collection of materials that In general, under § 180.33, fees are and is therefore unnecessary and is available for public viewing at the prescribed for the submission and impracticable. In addition, delay in Public Information and Records review of petitions for a permanent issuing this rule amending the existing Integrity Branch (PIRIB), Rm. 119, tolerance or exemption, temporary regulations could result in confusion on Crystal Mall #2, 1921 Jefferson Davis tolerance or exemption, or amendment the part of potential petitioners as to Hwy., Arlington, VA. This docket or repeal (revocation) of a tolerance. what fees are required. Notice and facility is open from 8:30 a.m. to 4 p.m., Fees are also prescribed for the filing of comment would therefore be contrary to Monday through Friday, excluding legal objections to a tolerance or exemption, the public interest. Accordingly, EPA holidays. The docket telephone number and for the costs of preparing a record has concluded that notice and comment is (703) 305–5805. for judicial review of an Agency order. on this rule would be impracticable, 2. Electronic Access. You may access Sections 180.31 and 180.32 cross- unnecessary, and contrary to the public this Federal Register document reference the fees in § 180.33. interest, within the meaning of 5 U.S.C. 553(b)(3)(B). electronically through the EPA Internet III. New Registration Service Fees and under the ‘‘Federal Register’’ listings at EPA also believes that there is good Suspension of Collection of Current cause to make this rule effective http://www.epa.gov/fedrgstr/. A Tolerance Fees frequently updated electronic version of immediately, rather than effective 40 CFR part 180 is available at http:// On January 23, 3004, President Bush within 30 days, within the meaning of www.gpoaccess.gov/ecfr/, a beta site signed into law the Consolidated 5 U.S.C. 553(d)(3). For the reasons currently under development. Appropriations Act of 2004. This bill stated above, EPA has determined that included provisions entitled the it is unnecessary, impracticable and An electronic version of the public ‘‘Pesticide Registration Improvement contrary to the public interest to delay docket is available through EPA’s Act of 2003,’’ which amends the Federal revisions to the text of the regulations to electronic public docket and comment Insecticide, Fungicide, and Rodenticide incorporate the statutory requirement system, EPA Dockets. You may use EPA Act (FIFRA), among other things, to that the collection of such fees be Dockets at http://www.epa.gov/edocket/ establish a registration service fee suspended. In addition, EPA has to view public comments, access the system for covered pesticide registration balanced the necessity for immediate index listing of the contents of the applications and certain other implementation against principles of official public docket, and to access registration-related actions fundamental fairness, which require those documents in the public docket Section 501(d)(2) of the Consolidated that all affected persons be afforded a that are available electronically. Appropriations Act of 2004 prohibits reasonable amount of time to prepare for Although not all docket materials may EPA from collecting any tolerance fees the effective date of this rule. In so be available electronically, you may still under section 408(m)(1) of FFDCA doing, EPA has concluded that, because access any of the publicly available beginning on October 1, 2003, and the fee suspension is imposed by statute docket materials through the docket ending on September 30, 2008. and is effective on October 1, 2003, the facility identified in Unit I.B.1. Once in Accordingly, EPA will no longer collect benefit to the public of making the system, select ‘‘search,’’ then key in fees as prescribed in 40 CFR 180.31, conforming changes to the regulatory the appropriate docket ID number. 180.32, or 180.33, for any tolerance text immediately outweighs the need, if

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any, to give affected parties time to Advancement Act of 1995 (15 U.S.C. of section 408(d)(1) of FFDCA, and an adjust their behavior accordingly. 272 note) do not apply. advance deposit to cover fees as Indeed, EPA has determined that, on provided in § 180.33(d), except that no VI. Congressional Review Act balance, making this rule effective fee under this section shall be levied immediately is in the public interest The Congressional Review Act (CRA) during the period beginning on October and affected parties will better be served (5 U.S.C. 801 et seq.) generally provides 1, 2003, and ending on September 30, by the avoidance of confusion (as a that before a rule may take effect, the 2008. result of a discrepancy between the agency promulgating the rule must * * * * * submit a rule report, which includes a statute and the regulatory text) with I 3. In § 180.32, paragraph (a) is revised copy of the rule, to each House of the regard to such fees. Thus, EPA has to read as follows: concluded that good cause exists to Congress and to the Comptroller General make this rule effective immediately, of the United States. Section 808 of the § 180.32 Procedure for amending and within the meaning of 5 U.S.C. CRA allows the issuing agency to make repealing tolerances or exemptions from 553(d)(3). a rule effective sooner than otherwise tolerances. provided by the CRA if the agency (a) The Administrator on his own V. Statutory and Executive Order makes a good cause finding that notice initiative or on request from an Reviews and public procedure is impracticable, interested person furnishing reasonable This final rule merely conforms the unnecessary or contrary to the public ground therefor, may propose the codified regulatory text to the terms of interest. This determination must be issuance of a regulation amending or the recently enacted statute. Because the supported by a brief statement (5 U.S.C. repealing a tolerance for a pesticide prohibition to collect the tolerance fees 808(2)). As stated previously, EPA has chemical on one or more raw in the regulation is imposed by statute, made such a good cause finding, agricultural commodities or granting or the revisions to the regulatory text do including the reasons therefor, and repealing an exemption from tolerance not have any substantive effect. As such, established an effective date of March for such chemical. Requests for such under Executive Order 12866, entitled 11, 2004. EPA will submit a report amendment or repeal shall be made in Regulatory Planning and Review (58 FR containing this rule and other required writing and be accompanied by an 51735, October 4, 1993), this action is information to the U.S. Senate, the U.S. advance deposit to cover fees as not a ‘‘significant regulatory action’’ and House of Representatives, and the provided in § 180.33, except that no fee is therefore not subject to OMB review. Comptroller General of the United under this section shall be levied during This action does not impose an States prior to publication of the rule in the period beginning on October 1, information collection burden under the the Federal Register. This action is not 2003, and ending on September 30, provisions of the Paperwork Reduction a ‘‘major rule’’ as defined by 5 U.S.C. 2008. Act of 1995 (44 U.S.C. 3501 et seq.). 804(2). * * * * * Because this action is not subject to I 4. Section 180.33 is amended by notice and comment requirements List of Subjects in 40 CFR Part 180 under the APA or any other statute, it adding new paragraph (p) to read as is not subject to the Regulatory Environmental protection, follows: Administrative practice and procedure, Flexibility Act (5 U.S.C. 601 et seq.) or § 180.33 Fees. sections 202 and 205 of the Unfunded Agricultural commodities, Pesticides * * * * * Mandates Reform Act of 1995 (UMRA) and pests, Reporting and recordkeeping requirements. (p) No fee required by this section (Public Law 104–4). Nor does this action shall be levied during the period significantly or uniquely affect small Dated: March 11, 2004. beginning on October 1, 2003, and governments. This rule does not have Susan B. Hazen, ending September 30, 2008. tribal implications, as specified in Executive Order 13175, entitled Acting Assistant Administrator, Office of [FR Doc. 04–6008 Filed 3–16–04; 8:45 am] Consultation and Coordination with Prevention, Pesticides and Toxic Substances. BILLING CODE 6560–50–S Indian Tribal Governments (65 FR I Therefore, 40 CFR chapter I is 67249, November 6, 2000). This action amended as follows: ENVIRONMENTAL PROTECTION will not have federalism implications, AGENCY as specified in Executive Order 13132, PART 180—[AMENDED] entitled Federalism (64 FR 43255, I 1. The authority citation for part 180 40 CFR Part 271 August 10, 1999). This action is not continues to read as follows: subject to Executive Order 13045, [FRL–7633–2] entitled Protection of Children from Authority: 21 U.S.C. 321q, 346a and 371. Arizona: Final Authorization of State Environmental Health Risks and Safety I 2. In § 180.31, paragraph (b)(1) is Hazardous Waste Management Risks (62 FR 19885, April 23, 1997), revised to read as follows: because it is not economically Program Revisions § 180.31 Temporary tolerances. significant under Executive Order AGENCY: Environmental Protection 12866. This action is not subject to * * * * * Agency (EPA). Executive Order 13211, Actions (b) (1) A request for a temporary ACTION: Final rule. concerning Regulations that tolerance or a temporary exemption Significantly Affect Energy Supply, from a tolerance by a person who has SUMMARY: On October 27, 2000, we Distribution, or Use (66 FR 28355, May obtained an experimental permit for a published an immediate final rule at 65 22, 2001), because it is not a significant pesticide chemical under the Federal FR 64369 to authorize revisions to regulatory action under Executive Order Insecticide, Fungicide, and Rodenticide Arizona’s hazardous waste program 12866. This action does not involve Act shall be accompanied by a copy of under the Resource Conservation and technical standards; thus, the such experimental permit, such data as Recovery Act (RCRA). At that time, we requirements of section 12(d) of the are available on subjects outlined in determined that the identified revisions National Technology Transfer and clauses (A), (B), (C), (D), (E), (F), and (G) to Arizona’s hazardous waste program

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satisfied all requirements for final comments indicated that this statement demonstrated if there is evidence that a authorization and authorized the conflicts with the Eighth Circuit recipient administers its programs in a changes through an immediate final decision in Harmon Industries, Inc. v. way that results in a discriminatory rule. The immediate final rule was to be Browner, 1919 F.3d 894 (8th Circuit effect. Two complaints related to effective on December 26, 2000, unless 1999). hazardous waste management were filed on behalf of the communities located written comments opposing the B. What Were the Comments and near two Arizona facilities, Heritage authorization were received during the Responses to EPA’s Proposal? comment period. At the same time, in Environmental Services (Heritage) and the event we received written 1. Comment: EPA received four Innovative Waste Utilization (IWU). The comments, we also published a comment letters objecting to EPA’s complaints alleged that ADEQ violated proposed rule at 65 FR 64403 proposing assertion in the immediate final rule Title VI of the Civil Rights Act when it these same changes to the Arizona approving Arizona’s RCRA program issued or considered issuing the hazardous waste program. revisions that EPA retains the authority facilities’ RCRA permits. Both As a result of comments received on to take enforcement actions regardless of Complaints were investigated and the immediate final rule, we withdrew whether the State has taken its own dismissed by EPA’s Office of Civil the immediate final rule on December actions. They assert that EPA’s Rights (OCR). 22, 2000 at 65 FR 80790. By this action, statement is in conflict with the holding Title VI complaints were filed in OCR, we are issuing a final rule authorizing in Harmon Industries, Inc. v. Browner, which has the legal authority and the revisions to the Arizona hazardous 191 F .3d 894 (8th Cir. 1999). In this responsibility to investigate Title VI waste program as listed in the decision, the court found ‘‘no support complaints filed with EPA. The immediate final rule at 65 FR 64369 and either in the text of the statute or the complaints undergo a thorough, responding below to each of the legislative history for the proposition independent review, investigation and comments received. that the EPA is allowed to duplicate a final decision. As of this date, both the state’s enforcement authority with its EFFECTIVE DATE: Final authorization for complaint related to the IWU facility own enforcement action.’’ and the complaint related to the Arizona shall be effective on March 17, EPA’s Response: EPA has considered 2004. Heritage facility have been dismissed. In the comments it received regarding the each case, OCR found no violations of FOR FURTHER INFORMATION CONTACT: Lisa effect of state authorization on federal Title VI or EPA’s Title VI implementing McClain-Vanderpool, WST–2, U.S. EPA enforcement. The Agency, however, regulations. Region 9, 75 Hawthorne Street, San does not agree with the commenters and Comment: EPA should not authorize Francisco 94105–3901, (415) 972–3316. has not changed the statement in the ADEQ’s program revisions while there SUPPLEMENTARY INFORMATION: The reader final rule. EPA continues to believe that are numerous facilities in Arizona that should also refer to the proposed rule at the statement in the preamble reflects are operating under interim status 65 FR 64403 and the immediate final the correct reading of RCRA § 3008(a) permits. rule at 65 FR 64369, both published on which provides that EPA may bring an EPA’s Response: EPA has been October 27, 2000. enforcement action in a State with an focusing on ADEQ’s permitting A. Background authorized program. The only activities and the need to complete restriction placed on EPA’s authority to permit processing for Arizona facilities. We received written comments from enforce in a State with an authorized In the last two-year grant and in the five parties during the comment period. program is that EPA shall give notice to current grant, ADEQ has committed to Only one party submitted comments the State prior to issuing an order or completion of all interim status permits. which opposed the authorization. One commencing a civil action. See 42 Staff and management vacancies in the comment expressed reservations about U.S.C. 3008(a)(2). EPA has simply past and, more recently, ADEQ’s the ability of the State to administer the restated a longstanding position taken in increased community involvement have hazardous waste program and noted that civil actions, administrative delayed the permit approval process. there are numerous facilities in Arizona adjudications, and regulations. See, e.g., ADEQ has however committed to meet still operating under interim status. One Power Engineering Co. v. U.S., 303 F.3d EPA’s national goal for permit decisions comment expressed concern about the 1232 (10th Cir. 2002), cert. denied, 123 at facilities in the regulated universe by propriety of this authorization when S.Ct. 1929 (2003); In re: Bil-Dry Corp., 2005. EPA is closely monitoring ADEQ’s two Title VI (civil rights) administrative 1998 WL 743914 (E.P.A. Oct. 8, 1998). progress in meeting this commitment complaints against Arizona are pending. 2. In a fifth comment letter, the and we are confident they will make the Another comment expressed concern commenter objected to authorization agreed upon goal. Currently, there are that Arizona does not have adequate and expressed several concerns about six facilities operating under interim permitting staff in the hazardous waste the Arizona hazardous waste program. status, a significant decrease in the program to review and process permit Comment: EPA should not authorize number of interim status facilities since applications. One comment expressed the Arizona Department of 1998. There are ten facilities designated concern that Arizona is not adequately Environmental Quality’s (ADEQ) RCRA as interim status, inactive or closing. monitoring hazardous waste Treatment, program revisions when there are two ADEQ estimates that they will be Storage and Disposal facilities (TSDFs) outstanding Title VI (civil rights) processing several additional closures in the State, and that Arizona does not administrative complaints that have within the next two years, which will have an adequate compliance and been filed against ADEQ. further reduce the interim status enforcement program. Finally, four EPA’s Response: Title VI of the Civil universe. EPA is satisfied that ADEQ’s parties commented on EPA’s statement Rights Act prohibits recipients of federal progress on completion of the interim in the immediate final rule that EPA money, such as ADEQ, from status permits is reasonable and ‘‘continues to have independent discriminating against persons on the adequate for purposes of this authority under RCRA . . . [to] take basis of color, race or national origin. authorization decision. enforcement action regardless of Title VI prohibits both intentional and Comment: The commenter raised the whether the State has taken its own unintentional discrimination. issue of ADEQ’s staff competence in actions.’’ 65 FR 64369. Specifically, the Unintentional discrimination may be reviewing and approving permit

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applications. Specifically, the conference calls and joint inspections. C. What Decisions Have We Made in commenter questioned ADEQ’s EPA is satisfied that ADEQ provides This Rule? approval of the permit for Innovative adequate coverage of the universe of Waste Utilization, Inc. (IWU) in spite of hazardous waste facilities and we EPA has determined that approval of a deficient emergency plan. continue to monitor and oversee this Arizona’s RCRA program revisions identified in the October 27, 2000 EPA’s Response: ADEQ reviewed the program to ensure that the public and immediate final rule (65 FR 64369) and draft permit application from IWU and the environment are protected. found that it met all regulatory Proposed Rule (65 FR 64403) should requirements, including those for the Comment: In this comment, ADEQ’s proceed. After reviewing the public contingency plan (emergency plan). As regulation of a particular facility, comments received in response to the a result of public comment, ADEQ SONAS, was questioned. A lack of proposed authorization, EPA has made revised the permit adding specificity as inspections at the facility was cited as a final determination that Arizona’s well as voluntary requirements in evidence of ADEQ’s failure to application to revise its authorized several sections, and adding conditions aggressively monitor compliance. The program meets all the statutory and restricting transportation by schools, commenter also expressed concern regulatory requirements established by community education on potential about the treatment of contaminated RCRA. Therefore, we grant Arizona final emergencies and establishing a five year soils at SONAS and the applicability of authorization to operate its hazardous compliance and safety review to new rules on the treatment standards for waste program with the changes determine permit continuance. For metal wastes and mineral processing described in its application for program example, compatibility testing wastes to these soils. revisions previously identified. Arizona requirements were added that include EPA’s Response: The SONAS facility has responsibility for permitting commonly accepted scientific references is not a hazardous waste facility; it is a Treatment, Storage and Disposal for compatibility, such as those Facilities (TSDFs) within its borders and identified in the EPA document solid non-hazardous waste facility. ADEQ’s regulation of the SONAS for carrying out the aspects of the RCRA Technical Resources Document for the program described in its application, facility is therefore not specifically Storage and Treatment of Hazardous subject to the limitations of the applicable to EPA’s authorization of Waste in Tank Systems (NIS PB 87– Hazardous and Solid Waste revisions to Arizona’s hazardous waste 134391), and A Method for Determining Amendments of 1984 (HSWA). New management program. The petroleum the Compatibility of Hazardous Waste Federal requirements and prohibitions contaminated soil (PCS) and the metals written by the California Department of imposed by Federal regulations that contaminated waste accepted at the Health Services (EPA Document 600/2– EPA promulgates under the authority of 80–076). This information was not a SONAS facility are not RCRA hazardous HSWA take effect in authorized States requirement but rather supplemental wastes. These soils are defined as solid before they are authorized for the information ADEQ chose to include to waste in the Arizona regulations. requirements. Thus, EPA will satisfy public concern. Therefore, the newly promulgated implement any such HSWA EPA monitors ADEQ’s permit treatment standards for metal wastes do requirements and prohibitions in activities regularly and often reviews not apply. The approved solid waste Arizona, until the State is granted draft permit decisions to ensure the facility plan for SONAS is available for protection of human health and the authorization to do so. ADEQ and EPA public review at ADEQ. The ADEQ have agreed to a joint permitting process environment. EPA is satisfied with the Solid Waste Section and the ADEQ Air quality of ADEQ’s permit decisions and for RCRA permits for those provisions of Quality Division have conducted HSWA for which ADEQ does not have the competence of the staff. inspections at this facility and oversee Comment: The commenter questioned authorization. facility operations. Additionally, a joint whether ADEQ was adequately For further information on the scope inspection by EPA and ADEQ’s monitoring (inspecting) Treatment, and effect of today’s action to approve Hazardous Waste Section was Storage and Disposal Facilities (TSDFs). Arizona’s RCRA program revisions, conducted in May 2002. EPA’s Response: There are 26 please refer to the preambles of EPA’s Treatment, Storage and Disposal Comment: The commenter raised October 27, 2000 Immediate Final Rule Facilities (TSDFs) in Arizona’s universe questions regarding ADEQ’s ability to (65 FR 64369) and Proposed Rule (65 FR of regulated hazardous waste facilities. carry out an adequate and equivalent 64403), as well as the withdrawal of RCRA requires that each TSDF be RCRA compliance and enforcement those rules on December 22, 2000 (65 inspected every two years. ADEQ program. FR 80790). ensures that the appropriate number of EPA’s Response: As a result of RCRA inspections are conducted in D. Statutory and Executive Order Arizona, although at times ADEQ or program evaluations and grant Reviews EPA may inspect TSDFs more often. negotiations with EPA, ADEQ is Every other year EPA conducts implementing an escalated enforcement This rule only authorizes hazardous oversight of ADEQ inspections to policy which has shown significant waste requirements pursuant to RCRA determine the adequacy of their program improvements in state fiscal 3006 and imposes no requirements inspection program. In the oversight year 2002–2003. ADEQ has revised other than those imposed by State law. inspections, EPA has been satisfied with internal procedures and created and Therefore, this rule complies with the quality of inspections as well as the filled a new enforcement coordinator applicable executive orders and competence of the inspection staff. In position. The Inspections and statutory provisions as follows: addition, EPA has not observed Compliance Unit has also undertaken a 1. Executive Order 12866: Regulatory significant violations at these TSDFs. vigorous staff hiring and training Planning Review EPA also monitors ADEQ’s program program. EPA is satisfied that ADEQ is through reporting on grant work plan developing a strong and consistent The Office of Management and Budget commitments, annual on-site compliance and enforcement program has exempted this rule from its review evaluations and oversight inspections, that is equivalent to EPA’s program. under Executive Order (EO) 12866.

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2. Paperwork Reduction Act so it would be inconsistent with Management and Budget (OMB) This rule does not impose an applicable law for EPA, in its review of approval for the revised public information collection burden under the a State program, to require the use of information collection, Commercial Paperwork Reduction Act. any particular voluntary consensus Availability of Navigation Devices and standard in place of another standard Compatibility Between Cable Systems 3. Regulatory Flexibility Act that meets the requirements of RCRA. and Consumer Electronics Equipment, After considering the economic Thus, Section 12(d) of the National CS Docket No. 97–80 and PP Docket No. impacts of today’s rule on small entities Technology Transfer and Advance Act 00–67, OMB Control Number 3060– under the Regulatory Flexibility Act, I does not apply to this rule. 1032. Therefore, the Commission certify that this rule will not have a 10. Congressional Review Act announces that OMB Control No. 3060– significant economic impact on a 1032 and associated rules 47 CFR substantial number of small entities. EPA will submit a report containing 15.123, 76.1905, and 76.1906 are this rule and other information required effective March 17, 2004. The 4. Unfunded Mandates Reform Act by the Congressional Review Act (5 incorporation by reference in 47 CFR Because this rule approves pre- U.S.C. 801 et seq.) to the U.S. Senate, 15.123 is approved as of March 17, existing requirements under state law the U.S. House of Representatives, and 2004. and does not impose any additional the Comptroller General of the United enforceable duty beyond that required States prior to publication in the DATES: The rules in 47 CFR 15.123, by state law, it does not contain any Federal Register. A major rule cannot 76.1905, and 76.1906 are effective unfunded mandate or significantly or take effect until 60 days after it is March 17, 2004. The incorporation by uniquely affect small governments, as published in the Federal Register. This reference in 47 CFR 15.123 is approved described in the Unfunded Mandates action is not a ‘‘major rule’’ as defined as of March 17, 2004. Reform Act. by 5 U.S.C. 804(2). This action will be effective on March 17, 2004. SUPPLEMENTARY INFORMATION: The 5. Executive Order 13132: Federalism Federal Communications Commission List of Subjects in 40 CFR Part 271 EO 13132 does not apply to this rule has received OMB approval for a revised because it will not have federalism Environmental protection, information collection in Commercial implications (i.e., substantial direct Administrative practice and procedure, Availability of Navigation Devices and effects on the State, on the relationship Confidential business information, Compatibility Between Cable Systems between the national government and Hazardous waste, Hazardous waste and Consumer Electronics Equipment, the States, or on the distribution of transportation, Indian Lands, CS Docket No. 97–80 and PP Docket No. power and responsibilities among the Intergovernmental relations, Penalties, 00–67, 68 FR 66728, November 28, various levels of government) as Reporting and recordkeeping 2003. Through this document, the described in EO 13132. requirements. Commission announces that it received this approval on March 2, 2004; OMB 6. Executive Order 13175: Consultation Authority: This action is issued under the authority of sections 2002(a), 3006 and Control No. 3060–1032. The effective and Coordination With Indian Tribal 7004(b) of the Solid Waste Disposal Act as date for this collection and associated Governments amended 42 U.S.C. 6912(a), 6926, 6974(b). rules 47 CFR 15.123, 76.1905, and EO13175 does not apply to this rule Dated: February 29, 2004. 76.1906 is March 17, 2004. The because it will not have tribal Laura Yoshii, incorporation by reference in 47 CFR implication (i.e., substantial direct 15.123 is approved as of March 17, Acting Regional Administrator, Region 9. effects on one or more Indian tribes, on 2004. [FR Doc. 04–5641 Filed 3–16–04; 8:45 am] the relationship between the Federal BILLING CODE 6560–50–P Pursuant to the Paperwork Reduction Government and Indian tribes, or on the Act of 1995, Public Law 104–13, an distribution of power and agency may not conduct or sponsor a responsibilities between the Federal collection of information unless it Government and Indian tribes). FEDERAL COMMUNICATIONS COMMISSION displays a currently valid control 7. Executive Order 13045: Protection of number. Notwithstanding any other Children from Environmental Health & 47 CFR Parts 15 and 76 provisions of law, no person shall be Safety Risks subject to any penalty for failing to [CS Docket No. 97–80; PP Docket No. 00– comply with a collection of information This rule is not subject to EO 13045 67; FCC 03–225] because it is not economically subject to the Paperwork Reduction Act significant and it is not based on health Commercial Availability of Navigation (PRA) that does not display a valid or safety risks. Devices and Compatibility Between control number. Questions concerning the OMB control numbers and 8. Executive Order 13211: Actions That Cable Systems and Consumer Electronics Equipment; Public expiration dates should be directed to Significantly Affect Energy Supply, Leslie F. Smith, Federal Distribution, or Use Information Collection Approved by Office of Management and Budget Communications Commission, (202) This rule is not subject to EO 13211 418–0217 or via the Internet at because it is not a significant regulatory AGENCY: Federal Communications [email protected]. action as defined in EO 12866. Commission. Federal Communications Commission. ACTION: 9. National Technology Transfer Final rule; announcement of Marlene H. Dortch, effective date. Advancement Act Secretary. EPA approves State programs as long SUMMARY: The Federal Communications [FR Doc. 04–6026 Filed 3–16–04; 8:45 am] as they meet criteria required by RCRA, Commission has received Office of BILLING CODE 6712–01–P

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FEDERAL COMMUNICATIONS accurate. Because the costs recorded in typographical errors in the dates that COMMISSION the newly created subaccounts continue these provisions became applicable. to be jurisdictionally separated in the III. Procedural Issues 47 CFR Part 36 part 36 rules at the higher account level, we find that modifications to the part 36 A. Paperwork Reduction Act Analysis [CC Docket No. 80–286; FCC 04–11] rules are not necessary in connection 5. The decision herein has been Jurisdictional Separations Reform and with these new subaccounts. We analyzed with respect to the Paperwork Referral to the Federal-State Joint therefore modify the Commission’s part Reduction Act of 1995, Public Law 104– Board 36 rules as set forth in Appendix C to 13. This order merely modifies account reflect the revised part 32 accounting references in part 36 to conform to the AGENCY: Federal Communications rules as adopted in the Phase 2 Order. part 32 revisions adopted in the Phase Commission. 3. We disagree with those commenters 2 Order to ensure that all account ACTION: Final rule. who claim that the modifications to part references in part 36 are consistent with 36 we adopt in this order should have the Uniform System of Accounts. We SUMMARY: In this document, the been referred to the Joint Board. As an Commission adopts modifications to the find, therefore, that the modifications to initial matter, we note that, although the part 36 adopted in this order do not Commission’s Part 36 Jurisdictional Commission specifically invited Separations Rules to conform those impose new or modified recordkeeping comment from the Joint Board in order requirements or burdens on the public. rules to revisions to the Part 32 Uniform to identify any substantive impact on System of Accounts adopted in the part 36, the Joint Board did not file B. Final Regulatory Flexibility Commission’s 2000 Biennial Regulatory comments. Moreover, contrary to the Certification Review. The Part 36 modifications the claims by NARUC and the state of 6. The Regulatory Flexibility Act of Commission adopts will not have any Oregon, the part 32 changes do not 1980, as amended (RFA), requires that a effect on the assignment of costs and require either reinitialization of the regulatory flexibility analysis be revenues to the state and interstate, but frozen category percentages or the prepared for notice-and-comment rule rather are merely ministerial in nature. identification of new jurisdictional making proceedings, unless the agency DATES: Effective April 16, 2004. allocators for the newly created certifies that ‘‘the rule will not, if FOR FURTHER INFORMATION CONTACT: Gary subaccounts. The changes we adopt promulgated, have a significant Seigel, Wireline Competition Bureau, here are purely ministerial in nature and economic impact on a substantial Telecommunications Access Policy will not have any effect on jurisdictional number of small entities.’’ The RFA Division, (202) 418–7400. cost allocations. For example, § 36.352 generally defines the term ‘‘small SUPPLEMENTARY INFORMATION: This is a of the Commission’s rules provides that entity’’ as having the same meaning as summary of the Commission’s Report Class A summary Account 6510 (Other the terms ‘‘small business,’’ ‘‘small and Order in CC Docket No. 80–286; Property Plant and Equipment organization,’’ and ‘‘small governmental FCC 04–11, released on January 16, Expenses) shall be separated based on jurisdiction.’’ In addition, the term 2004. The full text of this document is the separation of Account 2001 ‘‘small business’’ has the same meaning available for public inspection during (Telecommunications Plant in Service). as the term ‘‘small business concern’’ regular business hours in the FCC Because the Phase 2 Order eliminated under the Small Business Act. A ‘‘small Reference Center, Room CY–A257, 445 Class A summary Account 6510, business concern’’ is one which: (1) Is Twelfth Street, SW., Washington, DC § 36.352 is revised to direct Class A independently owned and operated; (2) 20554. carriers to perform jurisdictional is not dominant in its field of operation; separations for detailed Accounts 6511 and (3) satisfies any additional criteria I. Introduction and 6512, rather than the summary established by the Small Business 1. In this Report and Order, we adopt Account 6510. Account 6510 was a Administration (SBA). modifications to the Commission’s Part summary of Accounts 6511 and 6512. 7. In this Order, we adopt 36 Jurisdictional Separations Rules to Accounts 6511 and 6512, however, will modifications to Part 36 Jurisdictional conform those rules to revisions to the continue to be separated based on Separations Rules to conform those Part 32 Uniform System of Accounts Account 2001 (Telecommunications rules to the revisions to the Part 32 adopted in the Commission’s 2000 Plant in Service) as was Account 6510. Uniform System of Accounts adopted in Biennial Regulatory Review. The part 36 The basis for conducting separations our 2000 Biennial Regulatory Review. modifications we adopt will not have and the allocation between the As indicated in our Initial Regulatory any effect on the assignment of costs jurisdictions remains the same. Analysis, our modifications to part 36 and revenues to the state and interstate, Similarly, as noted with regard to are due to the consolidation of several but rather are merely ministerial in subaccounts, no part 36 changes are accounts that are also used in part 36. nature. needed because the existing part 36 The alternative to not making these rules separate costs at the account level, modifications would be that part 36 II. Discussion not the subaccount level. We therefore would reference part 32 accounts that 2. We conclude that it is necessary to conclude that referral to the Federal- are eliminated effective January 1, 2003. adopt modifications to the State Joint Board on Separations was not The modifications of part 36 to conform Commission’s part 36 rules consistent necessary in this instance. to the revised part 32 are necessary to with the changes made to the part 32 4. Finally, we take this opportunity to eliminate the potential for confusion rules in the Phase 2 Order, 67 FR 5669, correct certain typographical errors in that may occur as a result of February 6, 2002. With regard to the part 36 of our rules. We change the inconsistent account references. The elimination of certain part 32 accounts, reference at the end of § 36.126(e)(2) conforming amendments to the Part 36 we find that modifying the part 36 rules from § 36.156 to § 36.155 and remove jurisdictional rules are a result of the to reflect the elimination of such two references to ‘‘@@Q02’’ from consolidation of Part 32 accounts. accounts ensures that the part 32 § 36.321(a). We also modify 8. The modifications we adopt are references contained in part 36 are §§ 36.631(a), (c) and (d) to correct ministerial in nature and merely

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conform Part 36 account references to Final Regulatory Flexibility are defined in part 32 of the the Part 32 Uniform System of Certification, to the Chief Counsel for Commission’s Rules) are apportioned Accounts. These ministerial Advocacy of the Small Business among the operations on the basis of the modifications do not have a significant Administration. separation of the costs of the combined economic effect on any entities and only Big Three Expenses which include the List of Subjects in 47 CFR Part 36 clarify existing Commission rules. following accounts: Therefore, we certify that the Jurisdictional separations, Reporting requirements of this Report and Order and recordkeeping requirements, Plant Specific Expenses will not have a significant economic Telecommunications, Telephone. Central Office Switching Expenses— impact on a substantial number of small Federal Communications Commission. Accounts 6211 and 6212 entities. Marlene H. Dortch, Operators Systems Expenses—Account 9. The Commission will send a copy 6220 of this Report and Order, including a Secretary. Central Office Transmission Expenses— copy of this Final Regulatory Flexibility Final Rules Accounts 6231 and 6232 Certification, in a report to Congress pursuant to the Congressional Review I For the reasons discussed in the Information Origination/Termination Act. In addition, the Report and Order preamble, the Federal Communications Expenses—Accounts 6311, 6341, and this final certification will be sent Commission amends 47 CFR part 36 as 6351, and 6362 to the Chief Counsel for Advocacy of the follows: Cable and Wire Facilities Expenses— SBA and will be published in the Accounts 6411, 6421, 6422, 6423, Federal Register. PART 36—JURISDICTIONAL 6424, 6426, 6431, and 6441 SEPARATIONS PROCEDURES; IV. Ordering Clauses STANDARD PROCEDURES FOR Plant Non-Specific Expenses 10. Pursuant to sections 1, 4, 201–205, SEPARATING Network Operations Expenses— 215, and 218–220 of the TELECOMMUNICATIONS PROPERTY Accounts 6531, 6532, 6533, 6534, Communications Act of 1934, as COSTS, REVENUES, EXPENSES, and 6535 amended, 47 CFR part 36, is amended TAXES AND RESERVES FOR as described. TELECOMMUNICATIONS COMPANIES Customer Operations Expenses 11. Pursuant to 5 U.S.C. 553(d) and I 1. The authority citation for part 36 Marketing—Account 6611 and 6613 § 1.427(a) of the Commission’s rules, Services—Account 6620 Part 36 of the Commission’s rules, is continues to read as follows: amended as set forth effective April 16, Authority: 47 U.S.C. Secs. 151, 154(i), and * * * * * 2004. We will, however, permit carriers (j), 205, 221(c), 254, 403 and 410. I 3. Amend § 36.121 by revising to implement Part 36 changes as of I 2. Amend § 36.112 by revising paragraph (a) to read as follows: January 1, 2003. paragraph (a) to read as follows: 12. The Commission’s Consumer and § 36.121 General. Governmental Affairs Bureau, Reference § 36.112 Apportionment procedures. (a) The costs of central office Information Center, shall send a copy of (a) The costs of the general support equipment are carried in the following this Report and Order, including the facilities of Class A Companies (which accounts:

Central Office Switching ...... Account 2210. Non-digital Switching ...... Account 2211. Digital Electronic Switching ...... Account 2212. Operator Systems ...... Account 2220. Central Office—Transmission ...... Account 2230. Radio Systems ...... Account 2231. Circuit Equipment ...... Account 2232.

* * * * * in No. 5 type electronic offices. month period ending December 31, I 4. Amend § 36.124 by revising Equipment, including switchboards 2000. paragraphs (a) introductory text and (c) used for recording of calling telephone * * * * * to read as follows: numbers and other billing information I 5. Amend § 36.125 by revising in connection with customer dialed paragraphs (a) introductory text and (h) § 36.124 Tandem switching equipment— charge traffic is included with Local Category 2. to read as follows: Switching Equipment—Category 3. (a) Tandem switching equipment is § 36.125 Local switching equipment— contained in Accounts 2210, 2211, and * * * * * Category 3. 2212. It includes all switching (c) Effective July 1, 2001, through June (a) Local switching equipment is equipment in a tandem central office, 30, 2006, study areas subject to price included in accounts 2210, 2211, and including any associated tandem cap regulation, pursuant to § 61.41 of 2212. It comprises all central office switchboard positions and any intertoll this chapter, shall assign the average switching equipment not assigned other switching equipment. Intertoll balances of Accounts 2210, 2211, and categories. Examples of local switching switching equipment includes 2212 to Category 2, Tandem Switching equipment are basic switching train, toll switching equipment used for the Equipment based on the relative connecting trunk equipment, interlocal interconnection of message toll percentage assignment of the average trunks, tandem trunks, terminating telephone circuits with each other or balances of Account 2210, 2211, 2212, senders used for toll completion, toll with local or tandem telephone central and 2215 to Category 2, Tandem completing train, call reverting office trunks, intertoll dial selector Switching Equipment during the twelve equipment, weather and time of day equipment, or intertoll trunk equipment service equipment, and switching

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equipment at electronic analog or digital switching equipment, TWX 4.22—This category includes the circuit remote line locations. Equipment used concentrators and switchboards) is also equipment portion of interexchange for the identification, recording and included in this local switching channels used for wideband services. timing of customer dialed charge traffic, category. The cost of interexchange circuit or switched private line traffic (e.g. * * * * * equipment in this category is transmitters, recorders, call identity (h) Effective July 1, 2001, through determined separately for each indexers, perforators, ticketers, June 30, 2006, study areas subject to wideband channel and is segregated detectors, mastertimes) switchboards price cap regulation, pursuant to § 61.41 between message and private line used solely for recording of calling of this chapter, shall assign the average services on the basis of the use of the telephone numbers in connection with balances of Accounts 2210, 2211, and channels provided. The respective costs customer dialed charge traffic, or 2212 to Category 3, Local Switching are allocated to the appropriate switched private line traffic (or both) is Equipment, based on the relative operation in the same manner as the included in this local switching percentage assignment of the average related interexchange cable and wire category. Equipment provided and used balances of Account 2210, 2211, 2212, facilities described in § 36.155. primarily for operator dialed toll or and 2215 to Category 3, during the * * * * * customer dialed charge traffic except twelve month period ending December I 7. In § 36.172, revise the section such equipment included in Category 2 31, 2000. heading to read as follows: Tandem Switching Equipment is also * * * * * included in this local switching I § 36.172 Other noncurrent assets— 6. Amend § 36.126 by revising Account 1410. category. This includes such items as paragraph (e)(2) to read as follows: directors translators, sender registers, * * * * * out trunk selectors and facilities for toll § 36.126 Circuit equipment—Category 4. I 8. Revise § 36.201 to read as follows: intercepting and digit absorption. * * * * * Special services switching equipment (e) * * * § 36.201 Section arrangement. which primarily performs the switching (2) Interexchange Circuit Equipment (a) This subpart is arranged in function for special services (e.g. Used for Wideband Service—Category sections as follows:

General ...... 36.202 Operating Revenues ...... 36.211 Basic local services revenue—Account 5000 (Class B telephone companies); Basic area revenue—Account 5001 (Class A telephone companies) ...... 36.212 Network Access Revenues—Accounts 5081 thru 5083 ...... 36.213 Long Distance Message Revenue—Account 5100 ...... 36.214 Miscellaneous Revenue—Account 5200 ...... 36.215 Uncollectible Revenue—Account 5300 ...... 36.216 Certain Income Accounts: Other Operating Income and Expenses—Account 7100 ...... 36.221 Nonoperating Income and Expenses—Account 7300 ...... 36.222 Interest and Related Items—Account 7500 ...... 36.223 Extraordinary Items—Account 7600 ...... 36.224 Income Effect of Jurisdictional Ratemaking Differences—Account 7910 ...... 36.225

I 9. Amend § 36.202 by revising are maintained for all revenue accounts I 10. Revise § 36.211 to read as follows: paragraph (b) to read as follows: in accordance with the requirements of part 32. These subsidiary records § 36.211 General. § 36.202 General. identify services for the appropriate (a) Operating revenues are included in * * * * * jurisdiction and will be used in the following accounts: (b) Except for the Network Access conjunction with apportionment Revenues, subsidiary record categories procedures stated in this manual.

Account Account title No.

Basic local service revenue (Class B telephone companies) ...... 5000 Basic Area Revenue (Class A telephone companies) ...... 5001 Network Access Revenues: End User Revenue ...... 5081 Switched Access Revenue ...... 5082 Special Access Revenue ...... 5083 Long Distance Message Revenue ...... 5100 Miscellaneous Revenue ...... 5200 Uncollectible Revenue ...... 5300

I 11. In § 36.212, revise the section § 36.212 Basic local services revenue— I 12. Amend § 36.213 by revising heading to read as follows: Account 5000 (Class B telephone paragraphs (a), (b), and (c) and by companies); Basic area revenue—Account removing paragraphs (d) and (e) to read 5001 (Class A telephone companies). as follows: * * * * *

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§ 36.213 Network access revenues. (c) Special Access Revenue—Account the basis of analysis during a (a) End User Revenue—Account 5081. 5083. Revenues in this account are representative period of the portion of directly assigned on the basis of analysis Account 1171, Allowance for doubtful Revenues in this account are directly and studies. accounts, related to telecommunications assigned on the basis of analysis and I billing. studies. 13. Revise § 36.216 to read as follows: I 14. Revise § 36.301 to read as follows: (b) Switched Access Revenue— § 36.216 Uncollectible revenue—Account Account 5082. Revenues in this account 5300. § 36.301 Section arrangement. are directly assigned on the basis of The amounts in this account are (a) This subpart is arranged in analysis and studies. apportioned among the operations on sections as follows:

General ...... 36.301 and 36.302. Plant Specific Operations Expenses: General ...... 36.310. Network Support/General Support Expenses—Accounts 6110 and 6120 (Class B Telephone Companies); Ac- 36.311. counts 6112, 6113, 6114, 6121, 6122, 6123, and 6124 (Class A Telephone Companies). Central Office Expenses—Accounts 6210, 6220, 6230 (Class B Telephone Companies); Accounts 6211, 6212, 36.321 6220, 6231, and 6232 (Class A Telephone Companies). Information Origination/Termination Expenses—Account 6310 (Class B Telephone Companies); Accounts 6311, 36.331. 6341, 6351, and 6362 (Class A Telephone Companies). Cable and Wire Facilities Expenses—Account 6410 (Class B Telephone Companies); Accounts 6411, 6421, 6422, 36.341. 6423, 6424, 6426, 6431, and 6441 (Class A Telephone Companies). Plant Nonspecific Operations Expenses: General ...... 36.351. Other Property Plant and Equipment Expenses—Account 6510 (Class B Telephone Companies); Accounts 6511 36.352. and 6512 (Class A Telephone Companies). Network Operations Expenses—Account 6530 (Class B Telephone Companies); Accounts 6531, 6532, 6533, 36.353. 6534, and 6535 (Class A Telephone Companies). Access Expenses—Account 6540 ...... 36.354. Depreciation and Amortization Expenses—Account 6560 ...... 36.361. Customer Operations Expenses: General ...... 36.371. Marketing—Account 6610 (Class B Telephone Companies); Accounts 6611 and 6613 (Class A Telephone Compa- 36.372. nies). Services—Account 6620 ...... 36.373. Telephone Operator Services ...... 36.374. Published Directory Listing ...... 36.375. All Other ...... 36.376. Category 1—Local Bus. Office Expense ...... 36.377. Category 2—Customer Services (Revenue Accounting) ...... 36.378. Message Processing Expense ...... 36.379. Other Billing and Collecting Expense ...... 36.380. Carrier Access Charge Billing and Collecting Expense ...... 36.381. Category 3—All other Customer Service Expense ...... 36.382. Corporate Operations Expenses: General ...... 36.391. General and Administrative Expenses—Account 6720 ...... 36.392. Operating Taxes—Account 7200 (Class B Telephone Companies); Accounts 7210, 7220, 7230, 7240, and 7250 36.411 and 36.412. (Class A Telephone Companies). Equal Access Expenses ...... 36.421.

I 15. Amend § 36.310 by revising § 36.310 General. paragraph (a) to read as follows: (a) Plant specific operations expenses include the following accounts:

Network Support Expenses...... Account 6110 (Class B Telephone Companies); Accounts 6112, 6113, and 6114 (Class A Telephone Companies) General Support Expenses ...... Account 6120 (Class B Telephone Companies); Accounts 6121, 6122, 6123, and 6124 (Class A Telephone Companies). Central Office Switching Expenses ...... Account 6210 (Class B Telephone Companies); Accounts 6211 and 6212 (Class A Telephone Companies) Operator System Expenses ...... Account 6220 Central Office Transmission Expenses ...... Account 6230 (Class B Telephone Companies); Accounts 6231 and 6232 (Class A Telephone Companies). Information Origination/Termination Expenses...... Account 6310 (Class B Telephone Companies); Accounts 6311, 6341, 6351, and 6362 (Class A Telephone Companies). Cable and Wire Facilities Expenses ...... Account 6410 (Class B Telephone Companies); Accounts 6411, 6421, 6422, 6423, 6424, 6426, 6431, and 6441 (Class A Telephone Companies).

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* * * * * § 36.311 Network Support/General Support § 36.321 Central office expenses— Expenses—Accounts 6110 and 6120 (Class Accounts 6210, 6220, and 6230 (Class B I 16. In § 36.311, revise the section B Telephone Companies); Accounts 6112, telephone companies); Accounts 6211, heading to read as follows: 6113, 6114, 6121, 6122, 6123, and 6124 6212, 6220, 6231, and 6232 (Class A (Class A Telephone Companies). telephone companies). * * * * * (a) The expenses related to central I 17. Amend § 36.321 by revising the office equipment are summarized in the section heading and paragraph (a) to read following accounts: as follows:

Central Office Switching Expense ...... Account 6210 (Class B telephone companies); Accounts 6211 and 6212 (Class A telephone companies). Operator Systems Expense ...... Account 6220. Central Office Transmission Expense ...... Account 6230 (Class B telephone companies); Accounts 6231 and 6232 (Class A telephone companies).

* * * * * 19. In § 36.341, revise the section § 36.351 General. I 18. In § 36.331, revise the section heading to read as follows: (a) Plant nonspecific operations heading to read as follows: § 36.341 Cable and wire facilities expenses include the following § 36.331 Information origination/ expenses—Account 6410 (Class B accounts: termination expenses—Account 6310 telephone companies); Accounts 6411, (Class B telephone companies); Accounts 6421, 6422, 6423, 6424, 6426, 6431, and 6441 6311, 6341, 6351, and 6362 (Class A (Class A telephone companies). telephone companies). * * * * * * * * * * I 20. Revise § 36.351 to read as follows:

Other Property Plant and Equipment Expenses ...... Account 6510 (Class B telephone companies); Accounts 6511 and 6512 (Class A telephone companies). Network Operations Expenses ...... Account 6530 (Class B telephone companies); Accounts 6531, 6532, 6533, 6534, and 6535 (Class A telephone companies). Access Expenses ...... Account 6540. Depreciation and Amortization Expenses ...... Account 6560.

I 21. In § 36.352, revise the section I 22. In § 36.353, revise the section I 23. Revise § 36.371 to read as follows: heading to read as follows: heading to read as follows: § 36.371 General. § 36.352 Other property plant and § 36.353 Network operations expenses— equipment expenses—Account 6510 (Class Account 6530 (Class B telephone Customer Operations Expenses are B telephone companies); Accounts 6511 companies); Accounts 6531, 6532, 6533, included in the following accounts: and 6512 (Class A telephone companies). 6534, and 6535 (Class A telephone companies). * * * * * * * * * *

Marketing ...... Account 6610 (Class B telephone companies); Accounts 6611 and 6613 (Class A telephone companies). Services ...... Account 6620.

I 24. In § 36.372, revise the section § 36.372 Marketing—Account 6610 (Class § 36.391 General. heading to read as follows: B telephone companies); Accounts 6611 and 6613 (Class A telephone companies). Corporate Operations Expenses are included in the following account: I 25. Revise § 36.391 to read as follows:

General and Administrative ...... Account 6720.

I 26. Amend § 36.392 by revising the Plant Specific Expenses Information Origination/Termination section heading and paragraph (c) to read Expenses—Account 6310 (Class B as follows: Central Office Switching Expenses— Telephone Companies); Accounts Account 6210 (Class B Telephone 6311, 6341, 6351, and 6362 (Class A § 36.392 General and administrative— Companies); Accounts 6211 and 6212 Telephone Companies) Account 6720. (Class A Telephone Companies) Cable and Wire Facilities Expense— * * * * * Operators Systems Expenses—Account Account 6410 (Class B Telephone (c) The expenses in this account are 6220 Companies); Accounts 6411, 6421, apportioned among the operations on Central Office Transmission Expenses— 6422, 6423, 6424, 6426, 6431, and the basis of the separation of the cost of Account 6230 (Class B Telephone 6441 (Class A Telephone Companies) the combined Big Three Expenses Companies); Accounts 6231 and 6232 which include the following accounts: (Class A Telephone Companies)

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Plant Non-Specific Expenses Customer Operations Expenses § 36.411 Operating taxes—Account 7200 (Class B Telephone Companies); Accounts Network Operations Expenses— Marketing—Account 6610 (Class B 7210, 7220, 7230, 7240, and 7250 (Class A Account 6530 (Class B Telephone Telephone Companies); Accounts Telephone Companies). Companies); Accounts 6531, 6532, 6611 and 6613 (Class A Telephone I 28. Revise § 36.501 to read as follows: 6533, 6534, and 6535 (Class A Companies) § 36.501 General. Telephone Companies) Services—Account 6620 For separations purposes, reserves I 27. In § 36.411, revise the section and deferrals include the following heading to read as follows: accounts:

Other Jurisdictional Assets—Net ...... Account 1500. Accumulated Depreciation ...... Account 3100. Accumulated Depreciation—Property Held for Future Telecommuni- Account 3200. cations Use. Accumulated Amortization—Capital Leases ...... Account 3400 (Class B Telephone Companies); Account 3410 (Class A Telephone Companies). Net Current Deferred Operating Income Taxes ...... Account 4100. Net Noncurrent Deferred Operating Income Taxes ...... Account 4340. Other Jurisdictional Liabilities and Deferred Credits—Net ...... Account 4370.

I 29. In § 36.505, revise the section chapter or § 54.311 of this chapter result in the destruction or adverse heading to read as follows: (which relies on this part), whichever is modification of critical habitat. Section applicable. 4 of the Act requires us to consider § 36.505 Accumulated amortization— economic and other relevant impacts of Tangible—Account 3400 (Class B * * * * * Telephone Companies); Accumulated [FR Doc. 04–5015 Filed 3–16–04; 8:45 am] designating any particular area as amortization—Capital Leases—Account BILLING CODE 6712–01–P critical habitat. We solicited data and 3410 (Class A Telephone Companies). comments from the public on all aspects of this designation, including data on * * * * * economic and other impacts of the I DEPARTMENT OF THE INTERIOR 30. Amend § 36.631 by revising designation. paragraphs (a) introductory text, (c) introductory text, and (d) introductory Fish and Wildlife Service DATES: This rule is effective April 16, text to read as follows: 2004. 50 CFR Part 17 ADDRESSES: Comments and materials § 36.631 Expense adjustment. RIN 1018–AG88 received, as well as supporting (a) Until December 31, 1987, for study documentation, used in the preparation areas reporting 50,000 or fewer working Endangered and Threatened Wildlife of this final rule are available for public loops pursuant to § 36.611(h), the and Plants; Final Designation of inspection, by appointment, during expense adjustment (additional Critical Habitat for Cirsium loncholepis normal business hours at the Ventura interstate expense allocation) is equal to (La Graciosa thistle) Fish and Wildlife Office, U.S. Fish and the sum of the following: AGENCY: Fish and Wildlife Service, Wildlife Service, 2493 Portola Road, * * * * * Interior. Suite B, Ventura, CA 93003. (c) Beginning January 1, 1988, for FOR FURTHER INFORMATION CONTACT: ACTION: Final rule. study areas reporting 200,000 or fewer Field Supervisor, Ventura Fish and working loops pursuant to § 36.611(h), SUMMARY: We, the U.S. Fish and Wildlife Office (see ADDRESSES section) the expense adjustment (additional Wildlife Service (Service), designate (telephone 805/644–1766; facsimile interstate expense allocation) is equal to critical habitat pursuant to the 805/644–3958). the sum of paragraphs (c)(1) through (2) Endangered Species Act of 1973, as SUPPLEMENTARY INFORMATION: of this section. After January 1, 2000, amended (Act), for Cirsium loncholepis the expense adjustment (additional (La Graciosa thistle). Approximately Designation of Critical Habitat Provides interstate expense allocation) for non- 41,089 acres (ac) (16,628 hectares (ha)) Little Additional Protection to Species rural telephone companies serving are within the boundaries of the critical In 30 years of implementing the Act, study areas reporting 200,000 or fewer habitat designation. The designated the Service has found that the working loops pursuant to § 36.611(h) critical habitat is in San Luis Obispo designation of statutory critical habitat shall be calculated pursuant to § 54.309 and Santa Barbara Counties, California. provides little additional protection to of this chapter or § 54.311 of this Critical habitat identifies specific most listed species, while consuming chapter (which relies on this part), areas, both occupied and unoccupied, significant amounts of available whichever is applicable. that are essential to the conservation of conservation resources. The Service’s (d) Beginning January 1, 1988, for a listed species and that may require present system for designating critical study areas reporting more than 200,000 special management considerations or habitat has evolved since its original working loops pursuant to § 36.611(h), protection. Section 7(a)(2) of the Act statutory prescription into a process that the expense adjustment (additional requires that each Federal agency, in provides little real conservation benefit, interstate expense allocation) is equal to consultation with and with the is driven by litigation and the courts the sum of paragraphs (d)(1) through (4) assistance of the Service, ensure that rather than biology, limits our ability to of this section. After January 1, 2000, any action authorized, funded, or fully evaluate the science involved, the expense adjustment (additional carried out by such agency is not likely consumes enormous agency resources, interstate expense allocation) shall be to jeopardize the continued existence of and imposes huge social and economic calculated pursuant to § 54.309 of this an endangered or threatened species or costs. The Service believes that

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additional agency discretion would determinations on existing proposals are of the C. loncholepis populations. allow our focus to return to those all significantly delayed. Recent research suggests that the actions that provide the greatest benefit The accelerated schedules of court populations of C. scariosum in the to the species most in need of ordered designations have left the Mount Pinos region and the Peninsular protection. Service with almost no ability to Ranges are related to C. loncholepis and provide for adequate public may collectively represent a single Role of Critical Habitat in Actual participation or to ensure a defect-free taxon (David Keil, CPSU, in litt. 2003). Practice of Administering and rulemaking process before making Based on this analysis, Dr. Keil may Implementing the Act decisions on listing and critical habitat propose a new taxon, C. scariosum var. While attention to and protection of proposals due to the risks associated citrinum; the new taxon would not habitat is paramount to successful with noncompliance with judicially- supersede the current nomenclature conservation actions, we have imposed deadlines. This in turn fosters until it is peer reviewed and published. consistently found that, in most a second round of litigation in which Dr. Keil intends to publish his new circumstances, the designation of those who fear adverse impacts from treatment of the genus Cirsium in The critical habitat is of little additional critical habitat designations challenge Flora of North America (FNA). value for most listed species, yet it those designations. The cycle of Publication of the FNA volume consumes large amounts of conservation litigation appears endless, is very containing the genus Cirsium will likely resources. Sidle (1987) stated, ‘‘Because expensive, and in the final analysis occur between 2005 and 2006 (Dieter the ESA can protect species with and provides relatively little additional Wilken, Santa Barbara Botanical without critical habitat designation, protection to listed species. Garden, in litt. 2003). Because of delays critical habitat designation may be The costs resulting from the in finalization of this taxonomic redundant to the other consultation designation include legal costs, the cost research, we determined to proceed requirements of section 7.’’ Currently, of preparation and publication of the with the designation of critical habitat only 25 percent (306 species) of the designation, the analysis of the for C. loncholepis based on its current 1,211 listed species in the U.S. under economic effects and the cost of taxonomic status. When the proposed the jurisdiction of the Service have requesting and responding to public taxonomic changes are published, we designated critical habitat. We address comment, and in some cases the costs will as necessary re-evaluate, within the of compliance with the National the habitat needs of all 1,211 listed constraints of available funding, the Environmental Policy Act (NEPA), all species through conservation critical habitat designation and the are part of the cost of critical habitat mechanisms such as listing, section 7 listing of C. loncholepis. designation. None of these costs result consultations, the section 4 recovery Please refer to the proposed critical in any benefit to the species that is not planning process, the section 9 designation (66 FR 57559) for an already afforded by the protections of protective prohibitions of unauthorized overview of Cirsium loncholepis the Act enumerated earlier, and they take, section 6 funding to the States, and biology, historic range, land ownership directly reduce the funds available for and management, and a list of the on- the section 10 incidental take permit direct and tangible conservation actions. going threats to the species. Since the process. The Service believes it is these publication of the proposed critical measures that may make the difference Background habitat, subsequent research on C. between extinction and survival for We proposed to designate critical loncholepis has added to our many species. habitat for Cirsium loncholepis (La understanding of the species. For Procedural and Resource Difficulties in Graciosa thistle) on November 15, 2001 example, demographic studies found Designating Critical Habitat (66 FR 57559), along with Eriodictyon that the survival and rapid growth of capitatum (Lompoc yerba santa) and seedlings to a large vegetative (non- We have been inundated with Deinandra increscens ssp. villosa flowering) state and large flowering lawsuits for our failure to designate (Gaviota tarplant). We designated final individuals were the main demographic critical habitat, and we face a growing critical habitat for Eriodictyon influences driving population growth number of lawsuits challenging critical capitatum and Deinandra increscens rate in the populations studied (Lea habitat determinations once they are ssp. villosa on November 7, 2002 (67 FR 2002; Teed 2003). An investigation of made. These lawsuits have subjected the 67968), but did not designate C. seedling ecology found that seedlings Service to an ever-increasing series of loncholepis due to ongoing analysis of tolerate saturated soils better than court orders and court-approved its taxonomic status. larger, more mature individuals, and settlement agreements, compliance with Dr. David Keil is currently studying higher seedling mortality occurs if soils which now consumes nearly the entire the taxonomic relationship between dry out quickly (Huber 2003). This listing program budget. This leaves the Cirsium scariosum (elk thistle) and C. study also found that mice forage on Service with little ability to prioritize its loncholepis (David Keil, California seedlings and contribute to seedling activities to direct scarce listing Polytechnic State University, San Luis mortality. Field observations suggest resources to the listing program actions Obispo (CPSU), pers. comm. 2002). A that C. vulgare (bull thistle), an invasive with the most biologically urgent highly variable species complex, C. non-native species, may also threaten species conservation needs. scariosum occurs in montane wetlands local populations of C. loncholepis due The consequence of the critical throughout California including the to competition (Tina Teed, CPSU, pers. habitat litigation activity is that limited Klamath Ranges, the Cascade Ranges, comm. 2002). The population reported listing funds are used to defend active the Sierra Nevada, the Transverse for Monterey County was erroneously lawsuits, to respond to Notices of Intent Ranges, the South Coast Range, and the identified as C. loncholepis and is not (NOIs) to sue relative to critical habitat, Peninsular Ranges (Keil and Turner being considered a component of this and to comply with the growing number 1993). A small number of C. scariosum new taxon (D. Keil, pers. comm., 2002). of adverse court orders. As a result, populations occur at one of the Changes in land managers and the listing petition responses, the Service’s headwaters of the Santa Maria River in status of conservation easements within own proposals to list critically the Mount Pinos region, less than 95 the proposed critical habitat units have imperiled species and final listing miles (mi) (153 kilometers (km)) inland occurred since publication of the

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proposed rule. The Coastal Conservancy second public comment period closed conservation biology. All four of the now holds a conservation easement for on June 6, 2002. peer reviewers supported the proposal the western portion of the private parcel In August 2002, we agreed through a and provided us with comments, which owned by the Unocal Corporation. The joint stipulation with the plaintiffs are included in the summary below and Center for Natural Land Management (Southwest Center for Biological incorporated into the final rule. manages the parcel owned by the Diversity and California Native Plant We reviewed all comments received County of Santa Barbara (Rancho Society) to a 1-year extension on the from the peer reviewers and the public Guadalupe Dunes County Park) that was publication date of a final rule for for substantive issues and new formerly managed by the Trust for Cirsium loncholepis critical habitat to information regarding critical habitat Public Lands. This County of Santa October 25, 2003. A delay in publication and Cirsium loncholepis, Eriodictyon Barbara parcel is south of the Unocal was proposed by the plaintiffs because capitatum, and Deinandra increscens parcel and supports suitable habitat of the uncertainty in the taxonomic ssp. villosa. We previously addressed though no plants have been documented status of C. loncholepis. (Please refer to comments regarding critical habitat for from that location. The Guadalupe- the Background section of this rule for E. capitatum and D. increscens ssp. Nipomo Dunes National Wildlife Refuge more information regarding C. villosa in a separate rule that did not is currently negotiating the development loncholepis taxonomic issues.) A final include C. loncholepis (67 FR 67968). A of a conservation easement on the entire rule designating critical habitat for the peer review comment relating to the Unocal parcel. The dune area and other two species was issued October uncertainty in the taxonomic status of C. shoreline of the Santa Maria River 25, 2002 (67 FR 67968, November 7, loncholepis prompted the separation of mouth would then be managed as part 2002). C. loncholepis from the final critical of the refuge. Long-term management On September 12, 2003 we filed with habitat designation for the other two plans for C. loncholepis have not yet the court a motion to modify its species. Stipulated Order Regarding Critical been developed for any of these areas. The comments were grouped Habitat Designation, seeking additional according to peer review or public Previous Federal Action time due to the continued uncertainty comments. Two general issues arose in A proposed rule to list Cirsium regarding the taxonomic status of loncholepis and three other species, as Cirsium loncholepis and because the public comments that related endangered was published in the appropriations provided by Congress in specifically to the proposed critical Federal Register on March 30, 1998 (63 fiscal year 2003 were insufficient to habitat determination. These comments FR 15164). Please refer to the proposed cover this action. On November 6, 2003, are addressed in the summary below. rule listing the species for information the judge denied our motion for further We did not receive any comments on on previous Federal actions prior to extension. The Service is issuing this the draft economic analysis of the March 30, 1998 and to the proposed designation in compliance with the proposed determination. However, we designation of critical habitat (66 FR court’s order. did receive one comment on economic 57559, 57564) for information on issues during the first comment period previous Federal actions prior to Summary of Comments and on the proposed designation. Recommendations November 15, 2001. The proposed Peer Review Comments critical habitat rule also contains We contacted appropriate Federal, information regarding the litigation State, and local agencies, scientific (1) Comment: A peer reviewer history related to the listing and organizations, and other interested suggested that we delay publication of designation of critical habitat for this parties and invited them to comment on a final rule for Cirsium loncholepis species (Southwest Center for Biological the proposed critical habitat for the pending the determination of its Diversity and California Native Plant three species. In addition, we invited taxonomic status. Recent research on C. Society v. U.S. Fish and Wildlife Service public comment through the publication loncholepis raises significant questions et al. (Case No. C99–2992 (N.D.Ca.)). of a notice in the San Luis Obispo regarding the taxonomy of the species. The proposed rule to designate Tribune on November 18, 2001, and the Our Response: We acknowledge the critical habitat for Cirsium loncholepis Santa Barbara News-Press on November uncertainty in the taxonomy of Cirsium and two other species was signed on 27, 2001. loncholepis. In 2002, we discussed with November 2, 2001, and published in the We received individually written the plaintiffs, the Center for Biological Federal Register on November 15, 2001 letters from 11 parties, which included Diversity and California Native Plant (66 FR 57559). In the proposal, we 4 designated peer reviewers, 1 Federal Society, appropriate action on the determined it was prudent to designate agency, and 1 State agency. Of the 11 critical habitat designation given the approximately 66,830 ac (27,046 ha) of parties responding individually, 6 questions raised by recent review of land in Santa Barbara and San Luis supported the proposed designation, 3 Cirsium loncholepis taxonomy (Please Obispo Counties as critical habitat for C. were neutral, and 2 were opposed. Of refer to the Background section of this loncholepis, Eriodictyon capitatum, and the responding parties, five commented rule for information regarding the study Deinandra increscens ssp. villosa. specifically on Eriodictyon capitatum of the taxonomic relationship of C. Publication of the proposed rule opened and Deinandra increscens ssp. villosa, loncholepis and C. scariosum.). We a 60-day public comment period, which while three made general comments for agreed, through a joint stipulation with closed on January 14, 2002. all three taxa, and three commented the plaintiffs, to a 1-year extension until On May 7, 2002, we published a specifically on Cirsium loncholepis. October 25, 2003 for completion of the notice announcing the reopening of the In accordance with our peer review final critical habitat determination for C. comment period on the proposal to policy published on July 1, 1994 (59 FR loncholepis. However, resolution of the designate critical habitat for Cirsium 34270), we solicited independent taxonomic status of C. loncholepis did loncholepis, Eriodictyon capitatum, and opinions from four knowledgeable not occur during the 1-year extension. Deinandra increscens ssp. villosa, and a individuals who have expertise with the Given the continuing uncertainty notice of availability of the draft species, with the geographic region regarding resolution of the taxonomic economic analysis on the proposed where the species occurs, and/or issue, the Service determined to proceed determination (67 FR 30641). This familiarity with the principles of with the final determination.

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(2) Comment: One peer reviewer plants (i.e., above-ground expression) in protect wetland habitat on the property recommended that we include all a population varies annually due to a should be beneficial for C. loncholepis apparently suitable unoccupied habitats number of factors, including the amount as well as the California tiger within the range of the species in our and timing of rainfall, temperature, soil salamander. We included the Can˜ ada de critical habitat designation. The conditions, and the extent and nature of las Flores unit in our critical habitat reviewer stated that it is unclear from the seedbank. designation because it contains the the proposed rule how many We recognize that designation of primary constituent elements and unoccupied areas or unsurveyed areas critical habitat may not include all of characteristics that make it essential for within the historical range of these taxa the habitat areas that may eventually be the conservation of C. loncholepis. have been excluded from the proposed determined to be necessary for the rule. Including these areas would recovery of the species. Critical habitat Public Comments improve the chances for recovery by designations do not signal that habitat Issue 1: Site-Specific Areas and Other increasing the habitat that would be outside the designation is unimportant Comments protected and thus available for or not required for recovery. Areas (4) Comment: A commenter requested colonization. outside the critical habitat designation that the Oceano Dunes State Vehicular Our Response: We acknowledge that will continue to be subject to all areas within the historical range of conservation actions that may be Recreation Area be excluded from the Cirsium loncholepis have not been implemented under section 7(a)(1) of Pismo-Orcutt unit of Cirsium surveyed. It is possible that suitable the Act and to the regulatory protections loncholepis critical habitat. Designating habitat for the taxon exists but remains afforded by the section 7(a)(2) jeopardy critical habitat in this area would unidentified. While additional surveys standard and the applicable diminish, if not completely eliminate, would help in further defining the prohibitions of section 9 of the Act, as opportunities for public use of the distribution of C. loncholepis, we are determined on the basis of the best dunes for recreational activities. The required to designate as critical habitat available information at the time of the Oceano Dunes State Vehicular those areas we know to be essential to action. Recreation Area is not necessary for the the conservation of the species, using (3) Comment: A peer reviewer survival and recovery of the species the best information available to us. We commented that the Can˜ ada de las when considering the large area included in our critical habitat Flores unit of Cirsium loncholepis (approximately 44,000 ac) that would be designation areas with the soil types critical habitat appears to be marginal in protected as critical habitat. and vegetation communities necessary its contribution to the conservation and Our Response: We are sensitive to the to support C. loncholepis that are recovery of the species. Much of the concerns of individuals regarding the contiguous with the known locations of area has been converted from grazing, effects of critical habitat designation on the taxon and are essential to the which is generally compatible with the private land or public lands under State conservation of the species. thistle, to intensive agriculture in the or local jurisdiction. We agree that Within the geographic area occupied form of vineyards. The thistle may not critical habitat should include only by Cirsium loncholepis, we designate be able to survive and recover under areas essential to the conservation of only areas currently known to be this change in land use. Cirsium loncholepis. Upon review of the essential to the conservation of the Our Response: No vineyards currently area encompassed by the Oceano Dunes species. Essential areas already have the occur within the Can˜ ada de las Flores State Vehicular Recreation Area features and habitat characteristics that Unit. Much of the area surrounding the (ODSVA), we have removed from the are necessary to sustain the species. We Can˜ ada de las Flores unit, specifically final designation the heavily used off- do not speculate about what areas might within and south of Los Alamos Valley, highway vehicle (OHV) riding area be found to be essential if better has undergone recent land use changes within the ODSVA because the area is information became available, or what in the form of vineyard development. not essential for the conservation of areas may become essential over time. If However, the majority of the property Cirsium loncholepis (see Summary of the information available at the time of within the Can˜ ada de las Flores unit Changes from the Proposed Rule designation does not show that an area remains under a grazing regime with a section). However, we have retained the provides essential life cycle needs of the small amount of agricultural row crops. remaining portion of the ODSVA in our species, then the area is not included in The majority of the property in this unit final designation because these areas are the critical habitat designation. Within is owned by Chevron, which is in the not disturbed and contain habitat the geographic area occupied by the process of closing, excavating, and essential for C. loncholepis. Unless a species, we do not designate areas that capping old well sites on the South Los Federal nexus (e.g., Federal funding, do not now have the primary Flores Ranch. A vineyard developer has Federal permit, or other Federal actions) constituent elements, as defined at 50 approached the Service and Santa exists, the critical habitat designation CFR 424.12(b), which provide essential Barbara County about vineyard poses no regulatory burden and should life cycle needs of the species. development on property within the not affect activities at the Oceano Dunes We agree that future conservation and southern portion of the Unit; less than State Vehicular Recreation Area. If a recovery of the species depends not 10 percent of the unit is proposed for Federal nexus is found to exist, we will only on the areas it currently occupies, vineyard conversion in the current work with the State (or other non- but also on providing the opportunity plans (Bridget Fahey, Service biologist, Federal entity) and appropriate Federal for it to shift in distribution over time, pers. comm. 2002). Vineyard agency to attempt to develop a project and to expand its current distribution. development on the property would that can be completed without We have addressed this by designating likely occur in upland areas, away from jeopardizing the continued existence of as critical habitat the areas that marsh and wetland habitat that support the C. loncholepis or adversely surround existing populations and Cirsium loncholepis and the federally modifying its critical habitat. contain the primary constituent endangered Santa Barbara Distinct We have analyzed the potential elements and are, therefore, essential to Population Segment (DPS) of the takings implications of designating the conservation of Cirsium loncholepis. California tiger salamander (Ambystoma critical habitat for Cirsium loncholepis. The number and location of standing californiense). Measures developed to This final rule will not take private,

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State, or other non-Federal property. values for Cirsium loncholepis and the be weighed against the expected cost Owners and users of non-Federal other two species for which critical impacts of the rulemaking. recreational areas that are included in habitat was concurrently proposed. Summary of Changes From the the designated critical habitat will Our Response: Some economists Proposed Rule continue to have an opportunity to recognize that in addition to a ‘‘use utilize private and public property in value’’ that society places on natural In preparation for development of our ways consistent with the conservation resources these goods may also exhibit final designation of critical habitat for of C. loncholepis. Activities that do not a ‘‘non-use value’’ by society. For Cirsium loncholepis, we reviewed have a Federal nexus are not restricted example, while many people may elect comments received on the proposed by the designation of critical habitat. to visit a public park and ‘‘use’’ it for a designation of critical habitat. In (5) Comment: California Department variety of recreational purposes, the addition to minor clarifications and of Transportation (DOT) requested an presence of this park may provide a incorporation of additional information exclusion of areas within the DOT variety of benefits to additional on the species’ biology and taxonomy, operating Right of Way (ROW) in members of society even though their we made four changes to our proposed several, unspecified units of critical enjoyment may not be directly designation, as follows: habitat for Cirsium loncholepis, where observable. Certain individuals may also (1) We modified two of the three they overlap with the transportation derive benefits from the park because of primary constituent elements from the system of California. The DOT requested the protection it offers to certain natural proposed designation by including an exclusion to reduce the need for resources including a diverse ecosystem additional habitats, excluding two plant habitat effects determinations for the that harbors endangered and threatened communities, and refining the plant taxa where routine disturbance occurs species. While these members of society species associated with Cirsium as a result of regular maintenance and may value the park merely for its loncholepis habitats. We did not include operational improvements. existence, their behavior is not directly seeps in our proposed list of C. Our Response: In the region covered observable and thus economists have loncholepis habitats for primary by this critical habitat designation, State developed certain tools, including CVM, constituent element one. Because and Federal roads appear to be within for measuring these values. hillside seeps provide habitat for the the Pismo-Orcutt unit. To clarify, we are CVM is an approach used by species in the Can˜ ada de las Flores not including roads that border the economists to directly elicit non-use critical habitat unit, we have added critical habitat units in our designation. values from individuals through the use seeps to the list of habitats. Intermittent The areas adjacent to the State roads of carefully designed survey streams also provide habitat for the that extend within the Pismo-Orcutt instruments. A CVM study will provide species, specifically where sub-surface unit contain habitat essential to the respondents with a framework wherein water is close to the surface or exposed conservation of Cirsium loncholepis as they are asked to value the resource along such drainages. For this reason, defined by the primary constituent given the parameters of the framework. we have also included intermittent elements. Therefore, we cannot justify For CVM to work properly, and provide streams. In primary constituent element excluding these particular areas from meaningful information on non-use two of the proposed designation, we the critical habitat unit. values, considerable resources must be included coastal dune and coastal scrub Due to mapping and time constraints, expended to adequately design and as being essential plant communities. we did not map critical habitat in administer this tool. We have not However, coastal dune and coastal scrub sufficient detail to exclude all road employed CVM studies to capture the plant communities do not provide the surfaces, although these would not non-use values certain individuals may moist soils considered necessary for contain the primary constituent place on critical habitat designation. habitats occupied by C. loncholepis, and elements essential for the conservation In conducting our analyses for the La therefore we have removed these of this taxon. Therefore, we do not view Graciosa thistle, we reviewed economic communities from the final list. Coastal road surfaces within the units as critical literature to determine whether or not dune ecosystems contain lakes and habitat for Cirsium loncholepis. Federal there are any existing studies that can other wetlands suitable for C. activities limited to roads and other provide information that would allow loncholepis, and these wetland habitats paved or graveled areas would not us to better describe and accurately are not dominated by plant species trigger a section 7 consultation unless quantify such benefits associated with associated with coastal dune and coastal they affect the species or one or more of the survival and recovery of the La scrub plant communities. In primary the primary constituent elements in Graciosa thistle and its habitat. constituent element two, we kept the adjacent critical habitat. However, even when such studies are plant species typically associated with Designation of critical habitat in areas identified, they usually do not allow for wetland habitats and removed plants occupied by Cirsium loncholepis is not the separation of the benefits of listing that are not obligate wetland species likely to result in a regulatory burden (including the Act’s take provisions) including Toxicodendron diversilobum substantially above that already in place from the benefits of critical habitat (poison oak), Distichlis spicata (salt due to the presence of the listed species. designation. grass), and Baccharis pilularis (coyote To streamline the regulatory process, While we are often unable to quantify brush). the DOT may request section 7 benefits that may be associated with the (2) We modified the boundaries of the consultation at a programmatic level for designation, our analyses do discuss proposed units to be consistent with ongoing activities that would result in potential benefits in a qualitative other recent critical habitat adverse effects to the taxon or its critical manner. This discussion is not intended designations. The boundaries are now habitat. to provide a complete analysis of the defined by points that lie on a 100- benefits that could result from section 7 meter-by-100-meter grid in the Issue 2: Economic Issues of the Act in general or critical habitat Universal Transverse Mercator (UTM) (6) Comment: We received one designation in particular. In short, we coordinate system. comment recommending we use the believe that we are currently best able (3) When making adjustments to the contingent valuation method (CVM) to to express the benefits of critical habitat Pismo-Orcutt unit, we made slight determine the hypothetical non-use designation in biological terms that can modifications to exclude developed

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areas that were missed during listing under the Act is no longer National security, of specifying any assessment of the 2000 aerial photos. necessary. particular area as critical habitat. We Developed areas are generally not Critical habitat receives protection may exclude areas from critical habitat considered essential habitats for Cirsium under section 7 of the Act through the designation when the benefits of loncholepis because of the lack of prohibition against destruction or exclusion outweigh the benefits of primary constituent elements in these adverse modification of critical habitat including the areas within critical areas. with regard to actions authorized, habitat, provided the exclusion will not (4) We excluded the heavily used off- funded, or carried out by a Federal result in extinction of the species. highway vehicle (OHV) riding area, agency. Section 7 of the Act also Our Policy on Information Standards which is a portion of the Oceano Dunes requires conferences on Federal actions Under the Endangered Species Act, State Vehicular Recreation Area, that are likely to result in the published in the Federal Register on because the area is not essential for the destruction or adverse modification of July 1, 1994 (59 FR 34271), provides conservation of Cirsium loncholepis. proposed critical habitat. Aside from the criteria, establishes procedures, and OHV disturbance in the riding area has added protection that may be provided provides guidance to ensure that our inhibited the development of a natural under section 7, the Act does not decisions represent the best scientific dune structure that includes the provide other forms of protection to and commercial data available. This formation of wetlands which could lands designated as critical habitat. policy requires our biologists, to the support C. loncholepis. The riding area Because consultation under section 7 of extent consistent with the Act and with consists mostly of shifting, open sand the Act does not apply to activities on the use of the best scientific and that is unsuitable habitat for C. private or other non-Federal lands that commercial data available, to use loncholepis. A small number of remnant do not involve a Federal nexus, critical primary and original sources of wetland habitats exist in the riding area habitat designation would not afford information as the basis for that might support the species, but these any additional regulatory protections recommendations to designate critical are fenced off from OHV disturbance under the Act against such activities. habitat. When determining which areas and too few to be essential to the In order to be included in a critical are critical habitat, a primary source of conservation of the species. The highly habitat designation, the habitat must information should be the listing disturbed riding area that we are first be ‘‘essential to the conservation of package for the species. Additional excluding is only a small part of the the species.’’ Critical habitat information may be obtained from a much larger Guadalupe Dune complex. designations identify, to the extent recovery plan, articles in peer-reviewed The majority of the known extant known, and using the best scientific and journals, conservation plans developed populations of C. loncholepis are commercial data available, habitat areas by States and counties, scientific status restricted to undisturbed wetlands of that are essential to the conservation of surveys and studies, biological the Guadalupe Dune complex and the the species. Section 3(5)(C) of the Act assessments, or other unpublished Santa Maria River mouth, and we have states that not all areas that can be materials. therefore retained the vast majority of occupied by a species should be Section 4 of the Act requires that we the dune complex and a large part of the designated as critical habitat except in designate critical habitat based on what river in the Pismo-Orcutt unit. those circumstances determined by the we know at the time of designation. As a result of using the 100-meter-by- Secretary. Our regulations (50 CFR Habitat is often dynamic, and species 100-meter grid method for defining the 424.12(e)) also state that, ‘‘The Secretary may move from one area to another over boundaries and the removal of shall designate as critical habitat areas time. Furthermore, we recognize that developed areas missed in the original outside the geographic area presently designation of critical habitat may not proposed delineation, the Pismo-Orcutt occupied by the species only when a include all of the habitat areas that may unit decreased in size by 1,468 ac (595 designation limited to its present range eventually be determined necessary for ha) and the Can˜ ada de las Flores unit would be inadequate to ensure the the recovery of the species. For these decreased in size by only 137 ac (56 ha). conservation of the species.’’ reasons, it is important to understand With the removal of the OHV riding To be included in a critical habitat that critical habitat designations do not area, the Pismo-Orcutt unit decreased in designation, the Service must also find signal that habitat outside the size by an additional 1,621 ac (656 ha). that habitat may require special designation is unimportant or may not management considerations or be required for recovery. Areas outside Critical Habitat protections. As discussed in more detail the critical habitat designation will Section 3 of the Act defines critical below, with respect to the individual continue to be subject to conservation habitat as—(i) the specific areas within units, the Service finds that the two actions that may be implemented under the geographic area occupied by a units designated as critical habitat for section 7(a)(1) of the Act and to the species, at the time it is listed in the C. loncholepis may require special regulatory protections afforded by the accordance with the Act, on which are management considerations or section 7(a)(2) jeopardy standard and found those physical or biological protections due to threats to the species the applicable prohibitions of section 9 features (I) essential to the conservation and/or its habitat. Such special of the Act, as determined on the basis of the species and (II) which may management considerations or of the best available information at the require special management protections may include management of time of the action. Federally funded or considerations or protection; and (ii) off-highway vehicle activity, irrigation assisted projects affecting listed species specific areas outside the geographical practices, groundwater pumping, outside their designated critical habitat area occupied by the species at the time invasive, non-native species, and areas may thus result in jeopardy it is listed upon a determination that grazing, as well as protecting the findings in some cases. Similarly, such areas are essential for the composition of native plant and animal critical habitat designations made on the conservation of the species. communities within critical habitat basis of the best available information at ‘‘Conservation’’ means the use of all units. Section 4(b)(2) of the Act requires the time of designation will not control methods and procedures that are that we take into consideration the the direction and substance of future necessary to bring an endangered or a economic impact, and any other recovery plans, habitat conservation threatened species to the point at which relevant impact, including impacts to plans, or other species conservation

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planning efforts if new information cell size of 100-meters by 100-meters. including the pattern of prevailing available to these planning efforts calls To accomplish this modification, the coastal winds, support natural dune for a different outcome. points defining the boundaries of dynamics in coastal areas, or occasional proposed critical habitat were moved to floodplain depositional events in inland Methods an adjacent point lying on the UTM grid areas. As required by the Act and of 100-meter cells. Defining critical Based on our knowledge to date, the regulations (section 4(b)(2) and 50 CFR habitat boundaries to be coincident with primary constituent elements of critical 424.12), we used the best scientific points on a UTM grid is consistent with habitat for Cirsium loncholepis consist information available to determine areas current practice and is intended to of: that contain the physical and biological simplify interpretation of the (1) Moist, sandy soils associated with features that are essential for the coordinates while diminishing the dune swales, margins of dune lakes and conservation of Cirsium loncholepis. number of coordinates necessary to marshes, seeps, intermittent streams, This included information from the define a boundary. We did not conform and river margins from the Guadalupe California Natural Diversity Data Base the boundary along OHV riding area to Dune complex along the coast and (CNDDB 2001), soil survey maps (U.S. the UTM grid of 100-meter cells because inland to Can˜ ada de las Flores; Soil Conservation Service 1972), digital the resulting boundary would greatly (2) Plant communities that support versions of the U.S. Geological Survey deviate from the boundary marked for associated wetland species, including: 7.5′ quadrangles, aerial photography, visitors to the Recreation Area; we Juncus spp. (rush), Scirpus spp. (tule), recent biological surveys and reports, believe that a boundary coincident with and Salix spp. (willow); and additional information provided by the OHV riding area is easily (3) Hydrologic processes, particularly interested parties, and discussions with understood by Recreation Area visitors the maintenance of a stable groundwater representatives of California Department and simplifies administration for State table supporting the soil moisture of Fish and Game (CDFG), the Santa Parks. regime that appears to be favored by Barbara County Planning Department, Cirsium loncholepis. Primary Constituent Elements and other botanical experts. We also Special Management Considerations or conducted site visits at several locations In accordance with section 3(5)(A)(i) Protections managed by local, State, or Federal of the Act and regulations at 50 CFR agencies, including Guadalupe-Nipomo 424.12, in determining which areas to When designating critical habitat, we Dunes National Wildlife Refuge, Oceano propose as critical habitat, we consider assess whether the areas determined to Dunes State Vehicle Recreation Area, those physical and biological features be essential for conservation may and Pismo Dunes State Preserve. We (primary constituent elements) that are require special management also visited the portion of Guadalupe essential to the conservation of the considerations or protections. The Dunes owned by the Unocal species and that may require special Pismo-Orcutt unit may require special Corporation. management considerations or management considerations or We delineated the proposed critical protection. These include, but are not protections due to the threats to the habitat units for Cirsium loncholepis by limited to: Space for individual and species and its habitat posed by erosion creating data layers in a geographic population growth, and for normal or compaction of soils that could information system (GIS) format of the behavior; food, water, air, light, threaten wetlands, coastal dunes and areas of known occurrences of the taxon minerals, or other nutritional or swales; changes in surface or subsurface using the information sources described physiological requirements; cover or flows upon which C. loncholepis above and aerial photography available shelter; sites for breeding, reproduction, depends that may reduce or remove the through TerraServer (http:// or rearing of offspring; sites for essential hydrological regime that terraserver.homeadvisor.msn.com). germination or seed dispersal; and supports the species; invasions of non- Where possible, we defined the habitats that are protected from native plants that may take over habitat boundaries of proposed critical habitat disturbance or are representative of the for the species; habitat fragmentation to conform to roads, known landmarks, historic geographical and ecological that detrimentally affects plant- and topographic features. To create the distributions of a species. pollinator interactions, leading to a legal descriptions of the boundaries, we All areas designated as critical habitat decline in species reproduction and used the UTM coordinates that defined for Cirsium loncholepis are within the increasing susceptibility to non-native the proposed boundary. species’ historic range and contain one plant invasion; and excessive grazing For the final rule we made several or more of the physical or biological that can lead to changes in essential modifications to the boundaries of features (primary constituent elements) habitat conditions (e.g., increases in soil proposed critical habitat. We overlaid identified as essential for the temperature resulting in loss of the boundaries of proposed critical conservation of each species. Much of moisture, decreases in plant cover, and habitat on aerial imagery from April what is known about the specific increases in non-native species). 2000 (AirPhoto USA), and an effort was physical and biological requirements of Currently, grazing, agriculture made to exclude developed areas. We C. loncholepis is described in the conversion, agricultural practices, excluded from critical habitat the off- Proposed Designation of Critical Habitat competition from non-native plant highway vehicle (OHV) riding area in for C. loncholepis. species, off-road vehicle traffic, and oil the Oceano Dunes State Vehicular The designated critical habitat is and gas decommissioning activities are Recreation Area (Recreation Area). We designed to provide sufficient habitat to ongoing in the Pismo-Orcutt unit. The used GIS data from Thomas Reid & maintain self-sustaining populations of Canada de las Flores unit may require Associates, a consultant of the Cirsium loncholepis throughout the special management considerations or Recreation Area, who approximated the species’ range, and provide those habitat protections due to the threats to the perimeter of the OHV riding area. With components essential for the species and its habitat posed by erosion the exception of the boundary excluding conservation of the species. Habitat or compaction of soils that could the OHV riding area just described, the components that are essential for C. threaten wetlands, coastal dunes and boundaries were modified to conform to loncholepis are found in wetland swales; changes in surface or subsurface a UTM coordinate system grid with a communities where physical processes, flows upon which C. loncholepis

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depends that may reduce or remove the on the scale at which groups of owned by the County of Santa Barbara. essential hydrological regime that individuals are recorded (e.g., many Private lands include areas that are supports the species; invasions of non- small groups versus one large group); being managed for conservation by native plants that may take over habitat and (2) depending on the climate and private landowners, as well as those that for the species; habitat fragmentation other annual variations in habitat are being managed for agriculture, that detrimentally affects plant- conditions, the extent of the above- ranchlands, or oil field pollinator interactions, leading to a ground distributions may either shrink decommissioning. Each of the critical decline in species reproduction and and temporarily disappear, or, as a habitat units is considered to be increasing susceptibility to non-native residual soil seedbank is expressed, occupied by either seeds as part of the plant invasion; and excessive grazing enlarge and cover a more extensive area. seedbank or standing plants, and to that can lead to changes in essential Therefore, the inclusion of currently contain habitat that include the specific habitat conditions (e.g., increases in soil unoccupied habitat interspersed with soils, hydrology, or plant communities temperature resulting in loss of patches of occupied habitat in the that are essential for this taxon. moisture, decreases in plant cover, and critical habitat units reflects the Critical habitat designated for Cirsium increases in non-native species). dynamic nature of the habitat and the loncholepis includes two units, both of Currently, grazing, agriculture life history characteristics of the taxon. which currently sustain the species. conversion, competition from non- We have also included a larger area of Protection of both units is essential for native plant species, and oil and gas currently unoccupied habitat in the the conservation of the species because decommissioning are ongoing in the Pismo-Orcutt unit, extending from the the geographic range that C. loncholepis Canada de las Flores Unit. known coastal locations of the species occupies has been reduced to so few inland to Orcutt. This habitat is sites that the species is in danger of Criteria Used To Identify Critical essential to the conservation of the extinction. Both units contain habitat Habitat species because (1) it provides components that are essential for the Throughout this designation, when connectivity between the known conservation of C. loncholepis. The selecting areas of critical habitat we locations on the coast and those habitats areas being designated as critical habitat made an effort to avoid developed areas, containing the primary constituent contain the appropriate marsh, dune such as housing developments, that are elements for C. loncholepis in the more wetland, and riparian habitat that unlikely to contribute to the interior portions of the unit including support C. loncholepis, including the conservation of Cirsium loncholepis. the type locality for the species (The sandy soils, the associated plant However, we did not map critical type locality is the geographic location communities, and a groundwater table habitat in sufficient detail to exclude all where the primary type was collected. that maintains wet soil conditions. We developed areas, or other lands unlikely The type specimen (also known as are designating approximately 41,089 ac to contain the primary constituent holotype) is the original specimen from (16,628 ha) of land as critical habitat for elements essential for the conservation which a description of a new species is C. loncholepis. Approximately 5 percent of C. loncholepis. Areas within the made.), (2) it contains the primary of this area consists of Federal lands, boundaries of the mapped units, such as constituent elements for the species and approximately 5 percent are State lands, buildings, roads, parking lots, railroads, (3) it provides potentially suitable less than 1 percent are county lands, airport runways and other paved areas, habitat for introductions needed for and approximately 89 percent are lawns, and other urban landscaped recovery of the species. private lands (Table 1). Both units areas will not contain any of the We considered the status of habitat maintain the ecological processes that primary constituent elements and thus conservation planning (HCP) efforts support the habitats containing the do not constitute critical habitat for the during the development of this rule. We primary constituent elements. Within species. Therefore, Federal actions may exclude HCPs from critical habitat the units, these habitats allow limited to these areas would not trigger designation if the benefits of excluding expansion of the existing populations by a section 7 consultation unless it is them would outweigh the benefits of maintaining connectivity through determined that such actions may affect including them. Currently, no HCPs pollinators and wind dispersal. the species and/or adjacent designated include Cirsium loncholepis as a A brief description of both critical critical habitat. covered species. habitat units is given below: During development of this rule, we considered the role of unoccupied Critical Habitat Designation Pismo-Orcutt Unit habitat in the conservation of Cirsium The critical habitat areas described The Pismo-Orcutt Unit consists of loncholepis. Due to the historic loss of below include one or more of the coastal dunes, swales, and wetlands the habitats that supported the taxon, primary constituent elements described extending from Grover City south to we believe that conservation and above and constitute our best Mussel Point, just north of Point Sal, recovery of this species depends not assessment at this time of the areas and then extending inland across the only on protecting it in the limited areas needed for the conservation of Cirsium Santa Maria Valley to the area of Orcutt. that it currently occupies, but also on loncholepis. Critical habitat includes This unit includes a portion of the providing the opportunity to increase its habitat throughout the species’ current Pismo Dunes State Preserve, non-OHV distribution by protecting currently range in the United States (Santa riding areas of Oceano Dunes State unoccupied habitat within its historic Barbara and San Luis Obispo Counties, Vehicular Recreation Area, the range. California). Lands designated as critical Guadalupe-Nipomo Dunes National We consider both units designated as habitat are under Federal, State, local, Wildlife Refuge, Rancho Guadalupe critical habitat for Cirsium loncholepis and private ownership. Federal lands Dunes County Park, and privately to be occupied by the species. include areas owned and managed by owned lands. In the vicinity of Orcutt, Determining the specific areas that this the Service. State lands include areas some of the private lands included in taxon occupies is difficult for several owned and managed by the California this unit have been designated as open reasons: (1) The methods for mapping Department of Parks and Recreation and space by Santa Barbara County (1998). the current distributions of C. the California Department of Fish and The coastal portion of this unit contains loncholepis can be variable, depending Game (CDFG). Local lands include parks almost all of the known populations of

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Cirsium loncholepis, including the River blow southeast across the lower seeps, at the head of Can˜ ada de las largest population known to exist Santa Maria River Valley in the Flores watershed, northwest of the town anywhere on privately owned lands, the direction of Orcutt and beyond to of Los Alamos. All of the lands in this Unocal parcel near the mouth of the Can˜ ada de las Flores. The prevailing unit are privately owned. The two Santa Maria River, as well as numerous winds cause seed dispersal, which known populations of Cirsium smaller populations that are scattered explains the elongated pattern in loncholepis in this unit encompass the along the coast north to Grover City. distribution of individual plants within easternmost distribution of the species; Maintaining all of these populations is known coastal populations. Wind consequently they occur under slightly essential for this species to survive dispersal is important for the different environmental conditions, through a variety of natural and human- maintenance and expansion of existing specifically at a higher elevation (200 ft induced environmental changes as well populations of this species. Intervening (61 m) elev.) and warmer climate than as stochastic events (e.g., floods). The habitat between the coastal populations the coastal populations. These are the more interior portions of this unit are and the more interior portions of the only known populations that represent primarily within the lower portion of Pismo-Orcutt unit is therefore important the more interior distribution of the the Santa Maria River Valley (below 80 to maintain connectivity through species. Preserving plants surviving in ft (24 m) in elevation) and have been pollinator activity and seed dispersal these slightly different environmental placed in agricultural production. mechanisms, and to provide suitable conditions (e.g., seasonal temperatures, However, fragments of numerous small habitat for introduction efforts needed type of wetland habitat, adjacent plant marshes, wetlands, and drainages can for recovery of the species. communities) may be important for the still be found interspersed with long-term survival and conservation of Can˜ ada de Las Flores Unit agricultural fields. The prevailing winds the species because they may contain from the stretch of coast between Pismo The Can˜ ada de Las Flores Unit genetic features different than those in Beach and the mouth of the Santa Maria consists of wetland habitat, in particular other parts of the range.

TABLE 1.—APPROXIMATE DESIGNATED CRITICAL HABITAT UNIT AREAS FOR Cirsium loncholepis IN ACRES (AC) (HECTARES (HA)) BY LAND OWNERSHIP 1

County and other Unit name State Private local jurisdictions Federal Total

Pismo-Orcutt ...... 1,946 ac ...... 33,954 ac ...... 29 ac ...... 2,333 ac ...... 38,262 ac (787 ha) ...... (13,741 ha) ...... (12 ha) ...... (944 ha) ...... (15,484 ha) Can˜ada de las Flores 0 ac ...... 2,827 ac ...... 0 ac ...... 0 ac ...... 2,827 ac (0 ha) ...... (1,144 ha) ...... (0 ha) ...... (0 ha) ...... (1,144 ha)

Total ...... 1,946 ac ...... 36,781 ac ...... 29 ac ...... 2,333 ac ...... 41,089 ac (787 ha) ...... (14,885 ha) ...... (12 ha) ...... (944 ha) ...... (16,628 ha) 1 Approximate hectares have been converted from acres (1 ha = 2.47 ac).

Effects of Critical Habitat Designation alteration that appreciably diminishes Federal agencies to confer with us on the value of critical habitat for both the any action that is likely to jeopardize Section 7 Consultation survival and recovery of a listed species. the continued existence of a species Section 7(a)(2) of the Act requires Such alterations include, but are not proposed for listing or result in Federal agencies, including the Service, limited to, alterations adversely destruction or adverse modification of to ensure that actions they fund, modifying any of those physical or proposed critical habitat. Conference authorize, or carry out are not likely to biological features that were the basis reports provide conservation jeopardize the continued existence of for determining the habitat to be recommendations to assist the action any threatened or endangered species or critical.’’ However, in a March 15, 2001, agency in eliminating conflicts that may result in the destruction or adverse decision of the United States Court of be caused by the proposed action. The modification of critical habitat Appeals for the Fifth Circuit (Sierra conservation recommendations in a designated for such a species. Club v. U.S. Fish and Wildlife Service, conference report are advisory. Destruction or adverse modification of et al., 245 F3d 434), the Court found our We may issue a formal conference critical habitat occurs when a Federal definition of destruction or adverse report, if requested by the Federal action action directly or indirectly alters modification to be invalid. In response agency. Formal conference reports critical habitat to the extent it to this decision, we are reviewing the include an opinion that is prepared appreciably diminishes the value of regulatory definition of adverse according to 50 CFR 402.14, as if the critical habitat for the conservation of modification in relation to the species was listed or critical habitat the species. Individuals, organizations, conservation of the species. designated. We may adopt the formal States, local governments, and other Section 7(a) of the Act requires conference report as the biological non-Federal entities are affected by the Federal agencies to evaluate their opinion when the species is listed or designation of critical habitat only if actions with respect to any species that critical habitat designated, if no their actions occur on Federal lands; is proposed or listed as endangered or substantial new information or changes require a Federal permit, license, or threatened and with respect to its in the action alter the content of the other authorization; or involve Federal critical habitat, if any is designated or opinion (see 50 CFR 402.10(d)). funding. proposed. Regulations implementing If a species is listed or critical habitat In our regulations at 50 CFR 402.02, this interagency cooperation provision is designated, section 7(a)(2) of the Act we define destruction or adverse of the Act are codified at 50 CFR part requires Federal agencies to ensure that modification as ‘‘a direct or indirect 402. Section 7(a)(4) of the Act requires activities they authorize, fund, or carry

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out are not likely to jeopardize the Both of the units we are designating designates critical habitat those continued existence of such a species or are occupied by either above-ground activities involving a Federal action that to destroy or adversely modify its plants or a seedbank of the taxon, and may adversely modify such habitat or critical habitat. If a Federal action may Federal agencies already consult with us that may be affected by such affect a listed species or its critical on activities in areas where the species designation. Activities that may destroy habitat, the responsible Federal agency may be present to ensure that their or adversely modify critical habitat (action agency) must enter into actions do not jeopardize the continued would be those that alter the primary consultation with us. Through this existence of the species. Each unit also constituent elements to the extent that consultation, the Federal action agency contains some areas that are considered the value of critical habitat for the would ensure that the permitted actions unoccupied. However, we believe, and conservation of Cirsium loncholepis is do not destroy or adversely modify the economic analysis discussed below appreciably reduced. We note that such critical habitat. illustrates, that the designation of activities may also jeopardize the If we issue a biological opinion critical habitat is not likely to result in continued existence of the species. concluding that a project is likely to a significant regulatory burden above Activities that, when carried out, result in the destruction or adverse that already in place due to the presence funded, or authorized by a Federal modification of critical habitat, we also of the listed species. Few additional agency, may directly or indirectly provide ‘‘reasonable and prudent consultations are likely to be conducted destroy or adversely modify critical alternatives’’ to the project, if any are due to the designation of critical habitat. habitat for Cirsium loncholepis include, identifiable. Reasonable and prudent Actions on which Federal agencies but are not limited to: alternatives are defined at 50 CFR consult with us include, but are not (1) Activities that alter habitat 402.02 as alternative actions identified limited to: hydrological regimes in ways that during consultation that can be (1) Development on private lands would appreciably alter or reduce the implemented in a manner consistent requiring permits from Federal agencies, quality or quantity of surface and with the intended purpose of the action, such as 404 permits from the U.S. Army subsurface water needed to maintain the coastal dune swale, seep, marsh, and that are consistent with the scope of the Corps of Engineers or permits from riparian habitat within the range of Federal agency’s legal authority and other Federal agencies such as Housing Cirsium loncholepis. Such activities jurisdiction, that are economically and and Urban Development; adverse to C. loncholepis could include, technologically feasible, and that the (2) Activities of the U.S. Fish and but are not limited to, water drawdown Director believes would avoid the Wildlife Service on its Refuge lands; or water diversions that lower the water likelihood of jeopardizing the continued (3) Watershed management activities table, agricultural activities that would existence of the listed species or sponsored by the Natural Resources affect the quality of water through resulting in the destruction or adverse Conservation Service; (4) Activities of the Federal Aviation contamination, off-highway vehicle modification of critical habitat. Authority on their lands or lands under activity that alters vegetation cover and Regulations at 50 CFR 402.16 require their jurisdiction; topography, road building and Federal agencies to reinitiate (5) The release or authorization of maintenance or modification that alters consultation on previously reviewed release of biological control agents by runoff patterns, oilfield development, actions in instances where critical the U.S. Department of Agriculture; oil contamination remediation habitat is subsequently designated and (6) Regulation of activities affecting activities, construction of pipelines and the Federal agency has retained point source pollution discharges into utility corridors, golf course and discretionary involvement or control waters of the United States by the residential development and certain over the action or such discretionary Environmental Protection Agency under recreational activities; and involvement or control is authorized by section 402 of the Clean Water Act; and (2) Activities that destroy the law. Consequently, some Federal (7) Construction of communication attendant native vegetation and make agencies may request reinitiation of sites licensed by the Federal Cirsium loncholepis habitats more consultation or conference with us on Communications Commission, and susceptible to invasion by non-native actions for which formal consultation authorization of Federal grants or loans. plant species including, but not limited previously has been completed if those Where federally listed wildlife species to activities such as livestock grazing, actions may affect designated critical occur on private lands proposed for grading, construction and maintenance habitat or adversely modify or destroy development and a habitat conservation of pipeline and utility corridors, off- proposed critical habitat. plan (HCP) is submitted by an applicant road vehicle traffic, and other Activities on Federal lands that may to secure a permit to take according to recreational activities. affect Cirsium loncholepis or its critical section 10(a)(1)(B) of the Act, our Several other wildlife species that are habitat will require section 7 issuance of such a permit would be listed under the Act occur in the same consultation. Activities on private or subject to the section 7 consultation general areas as Cirsium loncholepis. State lands requiring a permit from a process. In those situations where Western snowy plovers (Charadrius Federal agency, such as a permit from Cirsium loncholepis may occur or its alexandrinus nivosus), tidewater gobies the U.S. Army Corps of Engineers critical habitat is present within the area (Eucyclogobius newberryi), California (Corps) under section 404 of the Clean covered by an HCP that covers a wildlife least terns (Sterna antillarum browni), Water Act or any other activity requiring species, the consultation process would California red-legged frogs (Rana aurora Federal action (i.e., funding, include consideration of the potential draytonii), marsh sandwort (Arenaria authorization) will also continue to be effects on all listed species, including paludicola), Gambel’s watercress subject to the section 7 consultation plants, of granting the permit (Rorippa gambelii), and Nipomo lupine process. Federal actions not affecting C. authorizing take of threatened or (Lupinus nipomensis) occur within the loncholepis or its critical habitat, as well endangered wildlife species addressed coastal portions of the Pismo-Orcutt as actions on non-Federal lands that are by the HCP. unit designated as critical habitat for C. not federally funded or permitted, will Section 4(b)(8) of the Act requires us loncholepis; in addition, critical habitat not require section 7 consultations with to briefly describe and evaluate in any for Western snowy plover overlaps with respect to this taxon. proposed or final regulation that that designated for C. loncholepis.

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California tiger salamanders discussion of potential economic effects of the region. Given the total value of (Ambystoma californiense) (Santa and the values presented below assumes $1.09 billion in income (over 10 years) Barbara DPS) occur on the more inland the inclusion of these lands in the from farming, agricultural services, portion of the Pismo-Orcutt unit in the critical habitat designation. However, construction, and oil and gas extraction vicinity of Orcutt, as well as in the through section 4(b)(2), in our final activities in Santa Barbara County alone, vicinity of the Can˜ ada de las Flores unit. critical habitat rule, we excluded lands the annualized total cost of section 7 If you have questions regarding owned by VAFB from the areas implementation represents about 0.07 whether specific activities will likely designated as critical habitat for percent of the total value of affected constitute adverse modification of Eriodictyon capitatum, and Deinandra economic activities, as estimated in the critical habitat, contact the Field increscens ssp. villosa. In that rule, we economic analysis. Although we do not Supervisor, Ventura Fish and Wildlife determined that the benefits of find the economic costs to be Office (see ADDRESSES section). Requests excluding lands owned by VAFB significant, they were considered in for copies of the regulations on listed outweighed the benefits of inclusion, balancing the benefits of including and wildlife and inquiries about which finding resulted in the entire excluding areas from critical habitat. prohibitions and permits may be removal of three units and modification We did not receive any comments on addressed to the U.S. Fish and Wildlife of two units (67 FR 67968). Therefore, the draft economic analysis of the Service, Portland Regional Office, 911 because our economic analysis was proposed designation. Following the NE 11th Avenue, Portland, OR 97232– based on an analysis of effects from close of the comment period, the 4181 (503/231–6131, Fax 503/231– listing and designating critical habitat economic analysis was finalized. We 6243). for three species, not just C. loncholepis, made no revisions or additions to the Relationship to Habitat Conservation and included impacts of areas that were draft economic analysis. subsequently excluded from the final Plans A copy of the final economic analysis critical habitat rules, the values and a description of the exclusion Currently, no Habitat Conservation presented below and in the economic process with supporting documents are Plans include Cirsium loncholepis as a analysis are likely overestimates of the included in our administrative record covered species. potential economic effects resulting and may be obtained by contacting our Economic Analysis from this critical habitat rule for C. Ventura Fish and Wildlife Office (see loncholepis. ADDRESSES section). Section 4(b)(2)of the Act requires us The categories of potential costs to designate critical habitat on the basis considered in the analysis included the Required Determinations of the best scientific and commercial costs associated with: (1) Conducting Regulatory Planning and Review information available and to consider section 7 consultations due to the listing the economic and other relevant or the critical habitat, including In accordance with Executive Order impacts of designating a particular area reinitiated consultations and technical 12866, the Office of Management and as critical habitat. We may exclude areas assistance; (2) modifications to projects, Budget (OMB) has determined that this from critical habitat upon a activities, or land uses resulting from critical habitat designation is not a determination that the benefits of such the section 7 consultations; and (3) significant regulatory action. This rule exclusions outweigh the benefits of potential offsetting beneficial costs will not have an annual economic effect specifying such areas as critical habitat. connected to critical habitat including of $100 million or more or adversely We cannot exclude such areas from educational benefits. affect any economic sector, critical habitat when such exclusion Our economic analysis recognizes that productivity, competition, jobs, the will result in the extinction of the there may be costs from delays environment, or other units of species concerned. associated with reinitiating completed government. This designation will not Following the publication of the consultations after the critical habitat create inconsistencies with other proposed critical habitat designation, designation is made final. There may agencies’ actions or otherwise interfere we conducted an economic analysis to also be economic effects due to the with an action taken or planned by estimate the potential economic effect of reaction of the real estate market to another agency. It will not materially the designation. The draft analysis was critical habitat designation, as real estate affect entitlements, grants, user fees, made available for public review on values may be lowered due to a loan programs, or the rights and May 7, 2002 (67 FR 30641). We accepted perceived increase in the regulatory obligations of their recipients. Finally, comments on the draft analysis until burden. this designation will not raise novel June 6, 2002. Based on our analysis, we concluded legal or policy issues. Accordingly, Our proposed critical habitat rule that the designation of critical habitat OMB has not formally reviewed this included three species, Cirsium would not result in a significant final critical habitat designation. loncholepis, Eriodictyon capitatum, and economic impact, and estimated the Deinandra increscens ssp. villosa. potential economic effects over a 10- Regulatory Flexibility Act (5 U.S.C. 601 Therefore, our economic analysis year period would range from $3.1 to et seq.) evaluated the potential future effects $3.65 million for all three species. The Under the Regulatory Flexibility Act associated with the listing of all three of total estimated costs associated with (RFA) (as amended by the Small those species as endangered under the Cirsium loncholepis alone over a 10- Business Regulatory Enforcement Act, as well as any potential effect of the year period is estimated to range Fairness Act (SBREFA) of 1996), critical habitat designation above and between $641,000 and $802,300, or whenever an agency is required to beyond those regulatory and economic $64,100 and $80,200 annually. The total publish a notice of rulemaking for any impacts associated with listing. In consultation costs for C. loncholepis proposed or final rule, it must prepare addition, we analyzed costs incurred attributable exclusively to the critical and make available for public comment through consultations and modifications habitat provision of section 7 may range a regulatory flexibility analysis that of activities on lands under the Federal from $17,200 to $43,600 over 10 years. describes the effect of the rule on small jurisdiction of Vandenberg Air Force These costs are small when considered entities (i.e., small businesses, small Base (VAFB), and the following in the context of the economic activity organizations, and small government

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jurisdictions). However, no regulatory potentially affected, we also consider costs are likely to be lower than were flexibility analysis is required if the whether their activities have any reflected in the economic analysis. To head of an agency certifies the rule will Federal involvement. be conservative (i.e., more likely to not have a significant economic impact Designation of critical habitat only overstate impacts than understate them), on a substantial number of small affects activities conducted, funded, or we assumed in our economic analysis entities. The SBREFA amended the RFA permitted by Federal agencies. Some that a unique business entity would to require Federal agencies to provide a kinds of activities are unlikely to have undertake each of the projected certification statement. In this rule, we any Federal involvement and so will not consultations in a given year. Therefore, are certifying that the critical habitat be affected by critical habitat the number of businesses affected designation for Cirsium loncholepis will designation. In areas where the species annually is equal to the total annual not have a significant effect on a is present, Federal agencies already are number of consultations (both formal substantial number of small entities. required to consult with us under and informal). The following discussion explains the section 7 of the Act on activities they Based on the economic analysis factual basis for this certification. fund, permit, or implement that may which looked at the critical habitat for Small entities include small affect Cirsium loncholepis. Federal three species, we estimated that in each organizations, such as independent agencies also must consult with us if year there could be between one and nonprofit organizations; small their activities may affect critical two consultations for private governmental jurisdictions, including habitat. Designation of critical habitat, development projects. Assuming each school boards and city and town therefore, could result in an additional consultation involves a different governments that serve fewer than economic impact on small entities due business, approximately less than 1 50,000 residents; as well as small to the requirement to reinitiate percent of the total number of small businesses. Small businesses include consultation for ongoing Federal private development companies could manufacturing and mining concerns activities. Since C. loncholepis was be affected annually by the designation with fewer than 500 employees, listed in March 2000, there have only of critical habitat for these three species. wholesale trade entities with fewer than been two formal consultations involving Similarly again in analyzing critical 100 employees, retail and service the species. Both consultations were habitat for the three species, we businesses with less than $5 million in conducted with the Army Corps of estimated that in each year there could annual sales, general and heavy Engineers on restoration activities being be approximately three consultations for construction businesses with less than undertaken by one entity, Unocal, to oil and gas production activities. $27.5 million in annual business, clean up and restore beach habitat Assuming each consultation involves a special trade contractors doing less than contaminated by oil production different business, approximately 3 to 4 $11.5 million in annual business, and activities. In these consultations, percent of the total number of small gas agricultural businesses with annual restoration of C. loncholepis habitat was and oil companies could be affected sales less than $750,000. To determine proposed as part of the project because annually by the designation of critical if potential economic impacts to these Unocal was under court order to habitat for these three species. small entities are significant, we remediate contamination by the We also estimated that in each year consider the types of activities that Environmental Protection Agency. Since there could be approximately less than might trigger regulatory impacts under there have been only two consultations one consultation for agriculture this rule, as well as the types of project and both involved the same agency and (vineyard) activities. Assuming each modifications that may result. In entity, the requirement to reinitiate consultation involves a different general, the term ‘‘significant economic consultations for ongoing projects will business, approximately less than 1 impact’’ is meant to apply to a typical not affect a substantial number of small percent of the total number of small small business firm’s business entities. agriculture companies could be affected operations. Our economic analysis found that annually by the designation of critical To determine if the rule could private development, oil and gas habitat for Cirsium loncholepis. significantly affect a substantial number production (oil and gas Therefore, the economic analysis of small entities, we consider the decommissioning in the Cirsium concluded that the designation of number of small entities affected within loncholepis units), and agriculture critical habitat for C. loncholepis will particular types of economic activities (particularly, vineyard conversion) are not result in a significant economic (e.g., housing development, grazing, oil the primary activities anticipated to take impact on a substantial number of small and gas production, timber harvesting). place within the area designated as entities. This conclusion is supported We apply the ‘‘substantial number’’ test critical habitat for Cirsium loncholepis, by the low number of consultations on individually to each industry to Eriodictyon capitatum, and Deinandra C. loncholepis that have occurred since determine if certification is appropriate. increscens ssp. villosa. There are it was listed. However, the SBREFA does not approximately 114 development and In general, two different mechanisms explicitly define ‘‘substantial number’’ real estate, 73 oil and gas, and 93 in section 7 consultations could lead to or ‘‘significant economic impact.’’ agriculture small companies within the additional regulatory requirements for Consequently, to assess whether a area designated as critical habitat for the the approximately four small ‘‘substantial number’’ of small entities is three species. Because this final rule businesses, on average, that may be affected by this designation, this does not include the critical habitat required to consult with us each year analysis considers the relative number designation for the Eriodictyon regarding their project’s impact on of small entities likely to be impacted in capitatum and Deinandra increscens Cirsium loncholepis and its habitat. an area. In some circumstances, ssp. villosa and also differs from the First, if we conclude, in a biological especially with critical habitat proposed rule upon which the economic opinion, that a proposed action is likely designations of limited extent, we may analysis was based through the to jeopardize the continued existence of aggregate across all industries and exclusion of proposed units for those a species or destroy or adversely modify consider whether the total number of species located on Vandenberg Air its critical habitat, we can offer small entities affected is substantial. In Force Base, the impacts of this rule on ‘‘reasonable and prudent alternatives.’’ estimating the number of small entities small businesses and total economic Reasonable and prudent alternatives are

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alternative actions that can be the needs of the species and the threats would only be affected by this implemented in a manner consistent it faces, as described in the final listing designation if their actions were being with the scope of the Federal agency’s rule and this critical habitat designation. funded, permitted, or carried out by a legal authority and jurisdiction, that are It is likely that a developer or other federal agency. In that circumstance, the economically and technologically project proponent could modify a federal agency would need to assure the feasible, and that would avoid project or take measures to protect action it was funding, permitting, or jeopardizing the continued existence of Cirsium loncholepis. Based on the types carrying out would not adversely listed species or adversely modifying of modifications and measures that have modify critical habitat. For all actions critical habitat. A Federal agency and an been implemented in the past for plant without federal involvement, this applicant may elect to implement a species, a project proponent may take designation would not have any affect reasonable and prudent alternative such steps as installing fencing or re- on such actions. associated with a biological opinion that aligning the project to avoid sensitive (b) This rule will not produce a has found jeopardy or adverse areas. It should be noted that a Federal mandate of $100 million or modification of critical habitat. An developer likely would already be greater in any year, that is, it is not a agency or applicant could alternatively required to undertake such measures ‘‘significant regulatory action’’ under choose to seek an exemption from the due to regulations in the California the Unfunded Mandates Reform Act. requirements of the Act or proceed Environmental Quality Act. These The designation of critical habitat without implementing the reasonable measures are not likely to result in a imposes no obligations on State or local and prudent alternative. However, significant economic impact to project governments. proponents. unless an exemption were obtained, the Executive Order 13211 Federal agency or applicant would be at In summary, we have considered risk of violating section 7(a)(2) of the whether this rule would result in a On May 18, 2001, the President issued Act if it chose to proceed without significant economic effect on a an Executive Order 13211 on implementing the reasonable and substantial number of small entities. We regulations that significantly affect prudent alternatives. Second, pursuant have determined, for the above reasons, energy supply, distribution, and use. to section 7(b)(4), if we find that a that it will not affect a substantial Executive Order 13211 requires agencies proposed action adversely affects the number of small entities. Furthermore, to prepare Statements of Energy Effects species but is not likely to jeopardize we believe that the potential compliance when undertaking certain actions. This the continued existence of a listed costs for the number of small entities rule is not expected to significantly animal or plant species or adversely that may be affected by this rule will not affect energy supplies, distribution, or modify its critical habitat, we may be significant. Therefore, we are use. In our economic analysis, we did identify reasonable and prudent certifying that the designation of critical not identify energy production or measures designed to minimize the habitat for Cirsium loncholepis will not distribution as being affected by this amount or extent of take and require the have a significant economic impact on designation, and we received no Federal agency or applicant to a substantial number of small entities. A comments indicating that the proposed implement such measures through non- regulatory flexibility analysis is not designation could significantly affect discretionary terms and conditions. We required. energy supplies, distribution, or use. Oil may also identify discretionary and gas facilities in the designated units Small Business Regulatory Enforcement of this final rule are decommissioned or conservation recommendations Fairness Act (5 U.S.C. 804(2)) designed to minimize or avoid the in the process of decommissioning. Under the Small Business Regulatory adverse effects of a proposed action on Therefore, this action is not a significant Enforcement Fairness Act (5 U.S.C. 801 listed species or critical habitat, help energy action and no Statement of et seq.), this rule is not a major rule. Our implement recovery plans, or to develop Energy Effects is required. detailed assessment of the economic information that could contribute to the effects of this designation is described Takings recovery of the species. in the economic analysis. Based on the In accordance with Executive Order Based on our experience with effects identified in the economic 12630 (‘‘Government Actions and consultations pursuant to section 7 of analysis, we believe that this rule will Interference with Constitutionally the Act for all listed species, virtually not have an effect on the economy of Protected Private Property Rights’’), we all projects—including those that, in $100 million or more, will not cause a have analyzed the potential takings their initial proposed form, would result major increase in costs or prices for implications of designating critical in jeopardy or adverse modification consumers, and will not have significant habitat for Cirsium loncholepis in a determinations in section 7 adverse effects on competition, takings implication assessment. The consultations—can be implemented employment, investment, productivity, takings implications assessment successfully with, at most, the adoption innovation, or the ability of U.S.-based concludes that this final rule does not of reasonable and prudent alternatives. enterprises to compete with foreign- pose significant takings implications. These measures, by definition, must be based enterprises. Refer to the final Federalism economically feasible and within the economic analysis for a discussion of scope of authority of the Federal agency the effects of this determination. In accordance with Executive Order involved in the consultation. As we 13132, the rule does not have significant have a very limited consultation history Unfunded Mandates Reform Act (2 Federalism effects. A Federalism for Cirsium loncholepis with no U.S.C. 1501 et seq.) assessment is not required. As discussed consultations that resulted in a jeopardy In accordance with the Unfunded above, the designation of critical habitat determination and so no identified Mandates Reform Act (2 U.S.C. 1501 et in areas currently occupied by Cirsium reasonable and prudent alternatives, we seq.): loncholepis would have little can only describe the general kinds of (a) This rule will not ‘‘significantly or incremental impact on State and local actions that may be identified in future uniquely’’ affect small governments. A governments and their activities. The reasonable and prudent alternatives. Small Government Agency Plan is not designations may have some benefit to These are based on our understanding of required. City and county governments these governments in that the areas

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essential to the conservation of these to, a collection of information unless it References Cited species are more clearly defined, and displays a valid OMB Control Number. A complete list of all references cited the primary constituent elements of the National Environmental Policy Act herein, as well as others, is available habitat necessary to the survival of the upon request from the Ventura Fish and species are identified. While making We have determined that an Wildlife Office (see ADDRESSES section). this definition and identification does Environmental Assessment and/or an not alter where and what Federally Environmental Impact Statement as Author sponsored activities may occur, it may defined by the National Environmental The authors of this final rule are assist these local governments in long Policy Act of 1969 need not be prepared Diane Gunderson, Mary Root, and range planning, rather than waiting for in connection with regulations adopted Connie Rutherford, Ventura Fish and case-by-case section 7 consultation to pursuant to section 4(a) of the Wildlife Office (See ADDRESSES section). occur. Endangered Species Act, as amended. A List of Subjects in 50 CFR Part 17 Civil Justice Reform notice outlining our reason for this determination was published in the Endangered and threatened species, In accordance with Executive Order Federal Register on October 25, 1983 Exports, Imports, Reporting and 12988, the Department of the Interior’s (48 FR 49244). This determination does recordkeeping requirements, Office of the Solicitor has determined not constitute a major federal action Transportation. that this rule does not unduly burden significantly affecting the quality of the the judicial system and meets the Regulation Promulgation human environment. requirements of sections 3(a) and 3(b)(2) I Accordingly, we amend part 17, of the Order. We have designated Government-to-Government subchapter B of chapter I, title 50 of the critical habitat in accordance with the Relationship With Tribes Code of Federal Regulations, as set forth provisions of the Endangered Species below: Act, as amended. The rule uses standard In accordance with the President’s property descriptions and identifies the memorandum of April 29, 1994, PART 17—[AMENDED] primary constituent elements within the ‘‘Government-to-Government Relations designated areas to assist the public in With Native American Tribal I 1. The authority citation for part 17 understanding the habitat needs of Governments’’ (59 FR 22951), Executive continues to read as follows: Cirsium loncholepis. Order 13175, and the Department of the Authority: 16 U.S.C. 1361–1407; 16 U.S.C. Interior’s manual at 512 DM 2, we 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– Paperwork Reduction Act of 1995 (44 readily acknowledge our responsibility 625, 100 Stat. 3500, unless otherwise noted. U.S.C. 3501 et seq. to communicate meaningfully with I 2. In § 17.12(h) revise the entry for This rule does not contain any recognized Federal Tribes on a Cirsium loncholepis under information collection requirements for Government-to-Government basis. The ‘‘FLOWERING PLANTS’’ to read as which OMB approval under the designated critical habitat for Cirsium follows: Paperwork Reduction Act is required. loncholepis does not contain any Tribal An agency may not conduct or sponsor, lands or lands that we have identified § 17.12 Endangered and threatened plants. and a person is not required to respond as impacting Tribal trust resources. (h) * * *

Species Historic range Family Status When listed Critical Special Scientific name Common name habitat rules

FLOWERING PLANTS

******* Cirsium loncholepis La Graciosa thistle U.S.A. (CA) ...... Asteraceae-sun- E 691 17.96(a) ...... NA flower.

*******

I 3. In § 17.96, amend paragraph (a) by (i) Moist sandy soils associated with buildings, hard-packed roads (e.g., adding an entry for Cirsium loncholepis dune swales, margins of dune lakes and asphalt, pavement), aqueducts, under Family Asteraceae to read as marshes, seeps, intermittent streams, railroads, airport runways and follows: and river margins from the Guadalupe buildings, other paved areas, lawns, and Dune complex along the coast and other urban landscaped areas not § 17.96 Critical habitat—plants. inland to Can˜ ada de las Flores; containing all of the primary constituent (a) * * * (ii) Plant communities that support elements. Family—Asteraceae: Cirsium associated wetland species, including: (4) Critical Habitat Map Units. Data loncholepis (La Graciosa thistle) Juncus spp. (rush), Scirpus spp. (tule), layers defining map units were mapped and Salix spp. (willow); and using Universal Transverse Mercator (1) Critical habitat units are depicted (iii) Hydrologic processes, particularly (UTM) coordinates. for San Luis Obispo and Santa Barbara the maintenance of a stable groundwater (5) Cirsium loncholepis. Pismo-Orcutt Counties, California, on the maps below. table supporting the soil moisture Unit; San Luis Obispo and Santa (2) The primary constituent elements regime that appears to be favored by Barbara Counties, California. of critical habitat for Cirsium Cirsium loncholepis. (i) From USGS 1:24,000 scale loncholepis are those habitat (3) Critical habitat does not include quadrangle maps Pismo Beach and components that provide: existing features and structures, such as Oceano. Land bounded by the following

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UTM 10 NAD 1927 coordinates (E, N): 3861000; 732800, 3861000; 733000, 727300, 3867100; 727100, 3867200; 715600, 3889000; 716100, 3889000; 3860800; 733200, 3860800; 733200, 727000, 3866900; 726400, 3867300. 716100, 3888800; 716200, 3888500; 3860600; 733500, 3860400; 733600, (vi) Excluding land bounded by: 716600, 3887600; 716500, 3887600; 3860300; 734100, 3860300; 734200, 728400, 3870600; 728400, 3870200; 716600, 3887300; 716400, 3887300; 3860200; 733900, 3860100; 733600, 727700, 3870200; 727500, 3869700; 716400, 3887400; 716300, 3887400; 3860100; 733600, 3859900; 733400, 729200, 3869700; 729200, 3869500; 716300, 3887300; thence southwest to 3859800; 733300, 3859700; 733200, 729400, 3869500; 729400, 3870300; Oceano Dunes State Vehicular 3859500; 733200, 3859200; 733000, 728900, 3870300; 728500, 3870600; Recreation Area ‘‘Street Legal’’ riding 3859200; 733000, 3859600; 732800, 728400, 3870600. area boundary at y-coordinate 3887230; 3860400; 732600, 3860700; 731500, (vii) Excluding land bounded by: thence north along the ‘‘Street Legal’’ 3861500; 730700, 3861800; 729800, 722100, 3872900; 721800, 3872900; riding area boundary to y-coordinate 3862100; 728800, 3862500; 728300, 721600, 3872700; 721400, 3872200; 3888735; thence northwest, returning to 3862900; 726900, 3864000; 726400, 721300, 3871700; 721100, 3871600; 715600, 3889000. 3864300; 726100, 3864600; 725100, 721000, 3871400; 720800, 3871300; (ii) From USGS 1:24,000 scale 3865000; 723900, 3866000; 722700, 720600, 3871400; 720200, 3871400; quadrangle maps Pismo Beach, Oceano, 3867000; 722800, 3867300; 722700, 720000, 3871300; 720000, 3870800; Point Sal, Guadalupe, Santa Maria, and 3867600; 722600, 3867800; 722400, 721100, 3870800; 721100, 3870700; Orcutt. Lands bounded by following 3867900; 722300, 3868300; 722100, 721400, 3870700; 721400, 3870800; UTM Zone 10, NAD 1927 coordinates 3868300; 722000, 3868200; 721400, 722200, 3870800; 722200, 3871900; (E, N): 716700, 3886500; 717100, 3868400; 721000, 3868400; 720300, 723000, 3871900; 723000, 3872000; 3886400; 717300, 3886300; 717600, 3868700; 719700, 3868800; 719500, 722300, 3872300; 722300, 3872600; 3886100; 718100, 3886000; 719100, 3868900; 719400, 3869100; 719200, 722100, 3872900. 3885200; 719400, 3884900; 719600, 3869300; 718600, 3869600; 717900, 3884600; 719600, 3884000; 719300, 3869700; 717700, 3869800; 717500, (6) Cirsium loncholepis. Can˜ ada de 3883700; 719200, 3883200; 719100, 3869800; 717100, 3869700; 716600, Las Flores Unit; San Luis Obispo and 3883000; 719200, 3882300; 719400, 3869600; 716600, 3870000; 716500, Santa Barbara Counties, California. 3881300; 719700, 3880800; 719800, 3870300; 716400, 3870500; 716200, (i) From USGS 1:24,000 scale 3880700; 720300, 3880700; 720300, 3870700; 715900, 3870800; 715400, quadrangle map Sisquoc. Lands 3880200; 719600, 3880400; 719500, 3870900; 715100, 3870900; 715000, bounded by UTM Zone 10, NAD 1927 3880300; 719600, 3879500; 719700, 3871100; 715200, 3872300; 715000, coordinates (E, N): 741100, 3853100; 3879100; 720300, 3878900; 720400, 3872600; 715500, 3875200; 716000, 741300, 3853400; 741300, 3853500; 3879000; 720400, 3879300; 720000, 3878600; thence north to the boundary 741100, 3853700; 741200, 3854000; 3879500; 720400, 3879700; 720600, ‘‘Open Riding Area’’ in Oceano Dunes 741300, 3854500; 741300, 3854700; 3880000; 720700, 3880000; 721300, State Vehicular Recreation Area at y- 741200, 3854900; 741300, 3855100; 3879500; 721500, 3880000; 721900, coordinate 3878700; thence north along 741300, 3855600; 741400, 3855900; 3880000; 722500, 3879400; 722500, the ‘‘Open Riding Area’’ boundary to y- 741600, 3856200; 741800, 3856300; 3878300; 722300, 3877600; 722000, coordinate 3886500; thence east, 741900, 3856300; 742700, 3855500; 3876600; 721800, 3876000; 721800, returning to 716700, 3886500. 743200, 3854000; 743300, 3853800; 3875700; 721500, 3875800; 721600, (iii) Excluding land bounded by: 743600, 3853400; 743700, 3853300; 3875500; 721800, 3875100; 721800, 727800, 3868100; 727600, 3868100; 744000, 3853000; 744200, 3852900; 3873200; 722200, 3873300; 722300, 727300, 3868000; 727300, 3867800; 745000, 3852400; 745200, 3852300; 3873300; 722900, 3873100; 723200, 727500, 3867600; 727700, 3867600; 745600, 3851900; 745200, 3851400; 3873300; 724100, 3873500; 725800, 727700, 3867800; 727800, 3867800; 744600, 3851700; 744500, 3851700; 3873900; 727000, 3874200; 727600, 727800, 3868100. 744200, 3851400; 743700, 3851400; 3870900; 731700, 3870600; 731700, (iv) Excluding land bounded by: 743400, 3851200; 743300, 3851000; 3869000; 731400, 3869000; 731400, 729800, 3864700; 729400, 3864700; 743200, 3851000; 743200, 3850800; 3868000; 731600, 3868000; 731700, 729400, 3864000; 730200, 3864000; 742500, 3850800; 742100, 3850900; 3867400; 731200, 3867300; 730500, 730400, 3864100; 730400, 3864500; 742300, 3851800; 742400, 3852000; 3867000; 730000, 3867000; 729900, 729800, 3864700. 742200, 3852100; 741600, 3852300; 3866700; 730600, 3866700; 731200, (v) Excluding land bounded by: 741200, 3852400; 741100, 3852500; 3867000; 731600, 3867000; 731700, 726400, 3867300; 726200, 3867000; 741100, 3852700; 741000, 3852800; 3864600; 731200, 3863900; 731400, 726200, 3866900; 726900, 3866400; 741000, 3853000; 741100, 3853100. 3863500; 731800, 3863500; 731800, 727300, 3866100; 727600, 3866300; (ii) Note: Map follows: 3861500; 732300, 3861100; 732500, 727600, 3866500; 727200, 3866600; BILLING CODE 4310–55–P

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Dated: March 10, 2004. 10, 2004. See § 679.20(c)(3)(iii), DEPARTMENT OF COMMERCE Craig Manson, § 679.20(c)(5), and § 679.20(a)(7)(i)(A) Assistant Secretary for Fish and Wildlife and and (C). National Oceanic and Atmospheric Administration Parks. In accordance with § 679.20(d)(1)(iii), [FR Doc. 04–5925 Filed 3–16–04; 8:45 am] the Administrator, Alaska Region, 50 CFR Part 679 BILLING CODE 4310–55–C NMFS, has determined that the A season apportionment of the 2004 [Docket No. 031124287–4060–02; I.D. 031204B] DEPARTMENT OF COMMERCE Pacific cod TAC allocated as a directed fishing allowance to catcher/processor Fisheries of the Exclusive Economic National Oceanic and Atmospheric vessels using hook-and-line gear in the Zone Off Alaska; Pacific Cod by Administration BSAI will soon be reached. Catcher/Processor Vessels Using Consequently, NMFS is prohibiting Trawl Gear in the Bering Sea and 50 CFR Part 679 directed fishing for Pacific cod by Aleutian Islands Management Area catcher/processor vessels using hook- [Docket No. 031124287–4060–02; I.D. and-line gear in the BSAI. AGENCY: National Marine Fisheries 031104A] Service (NMFS), National Oceanic and Classification Fisheries of the Exclusive Economic Atmospheric Administration (NOAA), Commerce. Zone Off Alaska; Pacific Cod by This action responds to the best Catcher/Processor Vessels Using available information recently obtained ACTION: Closure. Hook-and-line Gear in the Bering Sea from the fishery. The Assistant SUMMARY: and Aleutian Islands Management Area NMFS is prohibiting directed Administrator for Fisheries, NOAA, fishing for Pacific cod by catcher/ AGENCY: National Marine Fisheries (AA), finds good cause to waive the processor vessels using trawl gear in the Service (NMFS), National Oceanic and requirement to provide prior notice and Bering Sea and Aleutian Islands Atmospheric Administration (NOAA), opportunity for public comment management area (BSAI). This action is Commerce. pursuant to the authority set forth at 5 necessary to prevent exceeding the A U.S.C. 553(b)(B) as such requirement is ACTION: Closure. season allocation of the 2004 total impracticable and contrary to the public allowable catch (TAC) of Pacific cod SUMMARY: NMFS is prohibiting directed interest. This requirement is specified for catcher/processor vessels fishing for Pacific cod by catcher/ impracticable and contrary to the public using trawl gear in this area. processor vessels using hook-and-line interest as it would prevent the Agency DATES: Effective 1200 hrs, Alaska local gear in the Bering Sea and Aleutian from responding to the most recent time (A.l.t.), March 14, 2004, until 1200 Islands management area (BSAI). This fisheries data in a timely fashion and hrs, A.l.t., April 1, 2004. action is necessary to prevent exceeding would delay the closure of Pacific cod FOR FURTHER INFORMATION CONTACT: the A season apportionment of the 2004 specified for catcher/processor vessels Mary Furuness, 907–586–7228. total allowable catch (TAC) of Pacific using hook-and-line gear in the BSAI. cod allocated for catcher/processor SUPPLEMENTARY INFORMATION: NMFS The AA also finds good cause to vessels using hook-and-line gear in this manages the groundfish fishery in the area. waive the 30–day delay in the effective BSAI according to the Fishery date of this action under 5 U.S.C. Management Plan for the Groundfish DATES: Effective 1200 hrs, Alaska local 553(d)(3). This finding is based upon Fishery of the Bering Sea and Aleutian time (A.l.t.), March 13, 2004, until 1200 the reasons provided above for waiver of Islands Area (FMP) prepared by the hrs, A.l.t., August 15, 2004. prior notice and opportunity for public North Pacific Fishery Management FOR FURTHER INFORMATION CONTACT: Josh comment. Council under authority of the Keaton, 907–586–7228. Magnuson-Stevens Fishery This action is required by § 679.20 SUPPLEMENTARY INFORMATION: NMFS Conservation and Management Act. and is exempt from review under manages the groundfish fishery in the Regulations governing fishing by U.S. BSAI according to the Fishery Executive Order 12866. vessels in accordance with the FMP Management Plan for the Groundfish Authority: 16 U.S.C. 1801 et seq. appear at subpart H of 50 CFR part 600 Fishery of the Bering Sea and Aleutian Dated: March 11, 2004. and 50 CFR part 679. Islands Area (FMP) prepared by the The 2004 final harvest specifications Alan D. Risenhoover, North Pacific Fishery Management for groundfish of the BSAI (69 FR 9242, Council under authority of the Acting Director, Office of Sustainable February 27, 2004), established the Magnuson-Stevens Fishery Fisheries, National Marine Fisheries Service. Pacific cod TAC allocated to catcher/ Conservation and Management Act. [FR Doc. 04–6028 Filed 3–12–04; 2:59 pm] processor vessels using trawl gear in the Regulations governing fishing by U.S. BILLING CODE 3510–22–S BSAI for the period 1200 hrs, A.l.t., vessels in accordance with the FMP January 1, 2004, through 1200 hrs, A.l.t., appear at subpart H of 50 CFR part 600 April 1, 2004 as 23,422 metric tons (mt). and 50 CFR part 679. See § 679.20(c)(3)(iii), § 679.20(c)(5), The 2004 Pacific cod TAC, specified and § 679.20(a)(7)(i)(A) and (C). in the 2004 final harvest specifications In accordance with § 679.20(d)(1)(iii), for groundfish of the BSAI (69 FR 9242, the Administrator, Alaska Region, February 27, 2004), allocated to catcher/ NMFS, has determined that the A processor vessels using hook-and-line season allocation of the 2004 Pacific cod gear in the BSAI, a directed Pacific cod TAC specified for catcher/processor fishing allowance of 48,558 metric tons vessels using trawl gear in the BSAI will for the period 1200 hrs, A.l.t., January soon be reached. Therefore, the Regional 1, 2004, through 1200 hrs, A.l.t., June Administrator is establishing a directed

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fishing allowance of 22,922 mt, and is DEPARTMENT OF COMMERCE of pollock TAC in Statistical Area 610 setting aside the remaining 500 mt as is therefore 4,184 mt (3,748 mt plus 436 bycatch to support other anticipated National Oceanic and Atmospheric mt). groundfish fisheries. In accordance with Administration In accordance with § 679.20(d)(1)(i), § 679.20(d)(1)(iii), the Regional the Regional Administrator, has Administrator finds that this directed 50 CFR Part 679 determined that the revised B season fishing allowance will be reached. [Docket No. 031125292–4061–02; I.D. allowance of the pollock TAC in Consequently, NMFS is prohibiting 031204A] Statistical Area 610 will be reached. directed fishing for Pacific cod by Therefore, the Regional Administrator is Fisheries of the Exclusive Economic catcher/processor vessels using trawl establishing a directed fishing Zone Off Alaska; Pollock in Statistical gear in the BSAI. allowance of 3,784 mt, and is setting Area 610 of the Gulf of Alaska aside the remaining 400 mt as bycatch Classification AGENCY: National Marine Fisheries to support other anticipated groundfish fisheries. In accordance with This action responds to the best Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), § 679.20(d)(1)(iii), the Regional available information recently obtained Administrator finds that this directed from the fishery. The Assistant Commerce. ACTION: Closure. fishing allowance will soon be reached. Administrator for Fisheries, NOAA, Consequently, NMFS is prohibiting (AA), finds good cause to waive the SUMMARY: NMFS is prohibiting directed directed fishing for pollock in Statistical requirement to provide prior notice and fishing for pollock in Statistical Area Area 610 of the GOA. opportunity for public comment 610 of the Gulf of Alaska (GOA). This Classification pursuant to the authority set forth at 5 action is necessary to prevent exceeding U.S.C. 553(b)(B) as such requirement is the B season pollock total allowable This action responds to the best impracticable and contrary to the public catch (TAC) for Statistical Area 610 of available information recently obtained interest. This requirement is the GOA. from the fishery. The Assistant impracticable and contrary to the public DATES: Effective 1200 hrs, Alaska local Administrator for Fisheries, NOAA, interest as it would prevent the Agency time (A.l.t.), March 13, 2004, through (AA), finds good cause to waive the from responding to the most recent 1200 hrs, A.l.t., August 25, 2004. requirement to provide prior notice and fisheries data in a timely fashion and FOR FURTHER INFORMATION CONTACT: Josh opportunity for public comment would delay the closure the A season Keaton, 907–586–7228. pursuant to the authority set forth at 5 allocation of Pacific cod specified for SUPPLEMENTARY INFORMATION: NMFS U.S.C. 553(b)(B) as such requirement is catcher/processor vessels using trawl manages the groundfish fishery in the impracticable and contrary to the public gear in the BSAI. GOA exclusive economic zone interest. This requirement is impracticable and contrary to the public The AA also finds good cause to according to the Fishery Management Plan for Groundfish of the Gulf of interest as it would prevent the Agency waive the 30–day delay in the effective from responding to the most recent date of this action under 5 U.S.C. Alaska (FMP) prepared by the North Pacific Fishery Management Council fisheries data in a timely fashion and 553(d)(3). This finding is based upon would delay the closure of the B season the reasons provided above for waiver of under authority of the Magnuson- Stevens Fishery Conservation and pollock TAC in Statistical Area 610. prior notice and opportunity for public Management Act. Regulations governing The AA also finds good cause to comment. fishing by U.S. vessels in accordance waive the 30–day delay in the effective This action is required by § 679.20 with the FMP appear at subpart H of 50 date of this action under 5 U.S.C. and is exempt from review under CFR part 600 and 50 CFR part 679. 553(d)(3). This finding is based upon Executive Order 12866. The B season allowance of the pollock the reasons provided above for waiver of Authority: 16 U.S.C. 1801 et seq. TAC in Statistical Area 610 of the GOA prior notice and opportunity for public is 3,748 metric tons (mt) as established comment. Dated: March 12, 2004. by the final 2004 harvest specifications This action is required by § 679.20 Alan D. Risenhoover, for groundfish of the GOA (69 FR 9261, and is exempt from review under Acting Director, Office of Sustainable February 27, 2004). In accordance with Executive Order 12866. Fisheries, National Marine Fisheries Service § 679.20(a)(5)(iii)(B) the Administrator, Authority: 16 U.S.C. 1801 et seq. [FR Doc. 04–6030 Filed 3–12–04; 3:00 pm] Alaska Region, NMFS (Regional Dated: March 12, 2004. BILLING CODE 3510–22–S Administrator), hereby increases the B season pollock TAC by 436 mt, the Alan D. Risenhoover, amount of the A season pollock Acting Director, Office of Sustainable allowance in Statistical Area 610 that Fisheries, National Marine Fisheries Service. was not previously taken in the A [FR Doc. 04–6029 Filed 3–12–04; 2:59 pm] season. The revised B season allowance BILLING CODE 3510–22–S

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Proposed Rules Federal Register Vol. 69, No. 52

Wednesday, March 17, 2004

This section of the FEDERAL REGISTER • Agency Web Site: http:// that all covered transactions between a contains notices to the public of the proposed www.fdic.gov/regulations/laws/federal/ member bank and its affiliates be on issuance of rules and regulations. The propose.html. Follow instructions for terms and conditions that are consistent purpose of these notices is to give interested submitting comments on the Agency with safe and sound banking practices; persons an opportunity to participate in the Web site. (3) prohibits the purchase of low quality rule making prior to the adoption of the final • rules. E-mail: [email protected]. assets from an affiliate; and (4) requires Include the RIN number in the subject that extensions of credit by a member line of the message. bank to an affiliate, and guarantees on • FEDERAL DEPOSIT INSURANCE Mail: Robert E. Feldman, Executive behalf of affiliates, be secured by CORPORATION Secretary, Attention: Comments, Federal statutorily defined amounts of Deposit Insurance Corporation, 550 17th collateral. Section 23B (1) requires that 12 CFR Parts 303 and 324 Street, NW., Washington, DC 20429. transactions (covered transactions as • Hand Delivery/Courier: Guard RIN 3064–AC78 well as other identified transactions station at rear of the 550 17th Street such as the sale of assets to an affiliate) Filing Procedures; Transactions With Building (located on F Street) on between a member bank and its Affiliates business days between 7 a.m. and 5 p.m. affiliates be on market terms (on terms Instructions: All submissions received and under circumstances that are AGENCY: Federal Deposit Insurance must include the agency name and RIN substantially the same, or at least as Corporation (FDIC). for this rulemaking. All comments favorable to the bank, as those ACTION: Notice of proposed rulemaking. received will be posted without change prevailing at the time for comparable to http://www.fdic.gov/regulations/laws/ transactions with nonaffiliates); (2) SUMMARY: Insured State nonmember federal/propose.html including any prohibits purchases of assets from an banks are subject to the restrictions and personal information provided. affiliate as fiduciary unless one of limitations on transactions by member FOR FURTHER INFORMATION CONTACT: several exceptions are met; (3) prohibits banks with affiliates found in sections Curtis Vaughn, Senior Examination purchases of securities during the 23A and 23B of the Federal Reserve Act Specialist, Division of Supervision and existence of an underwriting or selling ‘‘in the same manner and to the same Consumer Protection, (202) 898–6759 or syndicate if the principal underwriter of extent’’ as though they were member [email protected], Kenyon T. Kilber, the securities is an affiliate; and (4) banks. The Board of Governors of the Senior Examination Specialist, Division prohibits any advertisements or Federal Reserve System (FRB) adopted of Supervision and Consumer agreements by a member bank 12 CFR 223 (‘‘Regulation W’’) governing Protection, (202) 898–8935 or suggesting that the bank is responsible sections 23A and 23B. The FDIC is [email protected] or Pamela E.F. LeCren, for the obligations of an affiliate. proposing to add a new part to title 12 Counsel, Legal Division, (202) 898–3730 The FDIC interprets and enforces the of the CFR that would cross reference or [email protected], Federal Deposit restrictions and requirements of sections Regulation W to make it clear that Insurance Corporation, 550 17th Street, 23A and 23B of the FRA as to FDIC insured State nonmember banks are NW., Washington, DC 20429. insured State banks that are not subject to the restrictions and SUPPLEMENTARY INFORMATION: members of the Federal Reserve System limitations, and may take advantage of (insured State nonmember banks) and the exemptions, contained in Regulation Background has done so for many years. Until W. FDIC’s regulation would also make Section 18(j)(1) of the Federal Deposit recently neither the FRB nor the FDIC it clear that the FDIC administers the Insurance Act (12 U.S.C. 1828(j)(1) had adopted, or proposed, a regulation restrictions and limitations contained in (‘‘FDI Act’’) provides that ‘‘Sections on the restrictions of sections 23A or Regulation W as to insured State 371c and 371c–1 of [title 12] shall apply 23B as applicable to the depository nonmember banks, may grant case-by- with respect to every nonmember institutions over which each is given case exemptions from those restrictions insured bank in the same manner and to responsibility under the FRA and FDI and limitations, and is the appropriate the same extent as if the nonmember Act respectively. Both agencies relied, agency to make other determinations insured bank were a member bank.’’ rather, upon the language of the FRA under Regulation W. The proposal Sections 371c and 371c–1 of title 12 (12 and careful coordination of their would also amend part 303 of FDIC’s U.S.C. 371c, 371c–1) are respectively interpretations of the statutory regulations governing filing and hearing sections 23A and 23B of the Federal restrictions. On May 11, 2001, the FRB procedures by adding a new section that Reserve Act (FRA). They establish published a proposed regulation would govern requests for exemptions restrictions and limitations with respect (Regulation W) designed to implement from new part 324 and hearings that are to transactions between member banks sections 23A and 23B of the FRA if that held for the purpose determining and their affiliates. The purpose of those proposal were adopted in final. (66 FR whether a shareholder or company restrictions is to protect member banks 24186). The FDIC filed a formal exercises a controlling influence over from suffering losses when entering into comment on the proposal. On December another company. transactions with affiliates. 12, 2002, the FRB published Regulation DATES: Written comments must be Section 23A (1) establishes limits on W as a final rule. (67 FR 76560). It received on or before May 3, 2004. the amount of ‘‘covered transactions’’ became effective on April 1, 2003, and ADDRESSES: You may submit comments, between a member bank and its is codified at 12 CFR 223. The preamble identified by RIN number by any of the affiliates (any one affiliate and in the accompanying Regulation W as adopted following methods: aggregate as to all affiliates); (2) requires in final form indicated that member

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banks would be given certain time exemption for certain subsidiary regulatory agency’’. Nothing in the text periods to bring outstanding relationships that were entered into of section 23A or section 23B or the transactions into compliance with the prior to the date on which the FDIC’s legislative history of those sections new regulation. proposed part was published for public indicates that the FRB has the Regulation W defines terms; restates comment. Section 324.3 informs insured ‘‘exclusive’’ rulemaking authority with the statutory prohibitions found in State banks that they are to follow the respect to those sections as they apply section 23A and 23B; establishes a FDIC’s procedures set forth in part 303 to institutions other than member number of exemptions to those of the FDIC’s regulations when banks.1 restrictions; explains how to value requesting a hearing or making any The text of sections 23A and 23B credit transactions and asset purchases filing under part 324. Section 324.4 itself bear out the proposition that the for purposes of complying with the makes it clear that ‘‘member bank’’ FDIC is free to adopt regulations in this limits on covered transactions; sets out should be read as ‘‘insured State area. Sections 23A and 23B do not rules on when covered transactions nonmember bank’’, ‘‘Board’’ should be parcel out responsibility between the arise for purposes of Regulation W; sets read as ‘‘FDIC’’ and ‘‘appropriate FRB and the appropriate Federal out rules with respect to derivative Federal banking agency’’ should be banking agencies as is the case with transactions and how section 23A and understood to mean ‘‘FDIC’’ wherever sections 22(g) and 22(h) of the FRA, 23B apply to foreign branches; defines those terms appear in Regulation W. both of which are also made applicable the term ‘‘financial subsidiary’’ for Section 324.4 also contains a definition to insured State nonmember banks by purposes of Regulation W; and sets out of ‘‘State nonmember bank’’. Section section 18(j) of the FDI Act ‘‘in the same the standards under which the FRB will 324.5 provides that insured State manner and to the same extent’’ as grant requests for exemptions on a case- nonmember banks may obtain an though they were member banks. by-case basis. exemption from the restrictions and Section 23A and 23B’s silence with In keeping with section 18(j)(1) of the limitations of this part concerning respect to what role the other Federal FDI Act, the FDIC is proposing to add section 23A if the FDIC determines that banking agencies are to play shows that a new part to title 12 of the CFR. The such an exemption is in the public the FRA does not operate as a constraint purpose of this new part is to make clear interest and is consistent with the on the authority the FDIC derives from that insured State nonmember banks purposes of section 23A. Procedures for its own statute to establish rules must comply with the restrictions and filing exemption requests are proposed implementing section 23A and 23B and limitations contained in Regulation W in this section and would, if adopted, be the FDIC’s ability to make decisions in in order to comply with sections 23A added to part 303 of FDIC’s regulations applying those sections to insured State and 23B of the FRA and section 18(j)(1) (Filing Procedures) as new § 303.251. nonmember banks. The only restraint of the FDI Act. As previously stated, Finally, § 324.6 provides that placed on the FDIC by the FDI Act is section 18(j)(1) of the FDI Act provides determinations that a shareholder or that all of the restrictions and that sections 23A and 23B shall apply company exercises a controlling limitations of section 23A and 23B be to insured State nonmember banks ‘‘in influence over another company will applied ‘‘in the same manner and to the the same manner and to the same only be made after notice and same extent’’ as those restrictions and extent’’ as if the nonmember banks are opportunity for hearing. Hearings would limitations are applied to member member banks. This requirement in the be conducted in accordance with the banks. As discussed below, the FDIC FDI Act means that the substantive proposed amendments to part 303 that will in fact be applying Regulation W requirements and restrictions set out in are set out as part of this rulemaking. and section 23A and 23B to State Regulation W apply equally to insured Proposed part 324, and the nonmember banks in the same way as State nonmember banks. The FDIC has accompanying proposed amendments to those provisions apply to member taken those requirements and part 303, are discussed in more detail banks. below. restrictions into consideration in Section 324.2 Affiliate Transactions interpreting and applying sections 23A Section 324.1 Authority, Purpose and General Requirements—Paragraph (a) and 23B to insured State nonmember Scope banks since the adoption of Regulation of § 324.2 of the proposal cross The FDIC derives the authority from W. The FDIC is now proposing to add references Regulation W and restates the section 9 (Tenth) of the FDI Act (12 part 324, which will expressly requirement found in section 18(j)(1) of U.S.C. 1819 (Tenth)) to adopt rules incorporate through cross reference the the FDI Act that sections 23A and 23B implementing sections 23A and 23B of substantive provisions of Regulation W. of the FRA apply to insured State the FRA as made applicable to insured The part also identifies the FDIC as the nonmember banks as though they were State nonmember banks. Section 9 member banks. The purpose of appropriate agency for State nonmember (Tenth) of the FDI Act authorizes the banks in the administration and paragraph (a) is to clarify that insured FDIC to issue rules and regulations ‘‘to State nonmember banks must comply interpretation of those requirements and carry out the provisions of this chapter in granting exemption requests. with the substantive provisions of or of any other law which it has the Regulation W in order to comply with Discussion responsibility of administering or section 18(j)(1) of the FDI Act and part enforcing’’. Description of Proposal The FDIC has the responsibility of 1 Congress could have amended the FRA to refer Proposed part 324 is divided into six administering and enforcing section to ‘‘bank’’ rather than ‘‘member bank’’ if it wanted sections. Section 324.1 sets out the 18(j)(1) of the FDI Act as to state to provide the FRB with exclusive rulemaking authority with regard to sections 23A and 23B but authority under which the FDIC is nonmember banks. The language in it did not do so. Instead Congress amended the FDI proposing to act and describes the section 9 (Tenth) of the FDI Act limits Act, not once but twice, by incorporating a cross purpose and scope of the regulation. the FDIC’s authority to adopt reference first to section 23A and then to section Section 324.2 provides that the regulations governing a particular area 23B after that section was added to the FRA. The fact that Congress chose to amend the FDI Act and restrictions and limitations of only if ‘‘authority to issue such rules not the FRA signals an intent to provide the FDIC Regulation W apply to insured State and regulations has been expressly and with a role in the administration and interpretation nonmember banks and contains an exclusively granted to any other of sections 23A and 23B.

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324. The effect going forward of the the same thing would be considered an considered to be affiliates. As it may be cross reference in § 324.2(a) to affiliate, the subsidiary will be treated as possible to construe the exceptions to Regulation W is that State nonmember an affiliate from that point forward. The the definition of financial subsidiary banks will automatically be subject to effect of the loss of the exemption is found in Regulation W narrowly, the any changes made to Regulation W by that, going forward, covered FDIC has opted to draft the proposed the FRB without the need for the FDIC transactions between the bank and the exemption broadly so as to avoid any to take any action to amend its own subsidiary will be subject to part 324. undue confusion or ambiguity as to how regulation. Although the exemption would no insured State nonmember banks with Exception to General Requirements— longer apply, the outstanding existing section 24 subsidiaries are The FDIC is proposing to adopt a investment in the subsidiary, any affected by the adoption of FRB regulatory exemption to the general rule outstanding extensions of credit to the Regulation W. set out in paragraph (a) of § 324.2 of the subsidiary and any other prior The FDIC intends to limit the proposal that insured State nonmember transactions with the subsidiary would exemption to the types of section 24 banks are subject to the restrictions and not be affected by the loss of the subsidiaries described above. Comment requirements of Regulation W.2 exemption. is invited on whether the regulatory text Paragraph (b) of § 324.2 would exempt The exemption provided for under the is sufficiently clear as to its scope or has from the restrictions of part 324 certain proposal is intended to cover several broader effect than intended. In subsidiary relationships that were categories of subsidiaries. The first addition, comment is requested on established prior to the date on which category is those subsidiaries that, prior whether the FDIC should consider the FDIC’s proposal is published for to the date on which the FDIC’s narrowing the scope of the exemption or comment. If a subsidiary relationship proposal was issued for comment, were making it broader. predates that date and that subsidiary established after the FDIC issued an It has been the FDIC’s practice to relationship was not considered by the approval order under section 24 of the include in section 24 approval orders FDIC to be subject to section 23A and FDI Act and 12 CFR 362 (‘‘section 24 conditions on the manner and extent to 23B prior to December 12, 2002 (i.e., the subsidiaries’’). Such subsidiaries are by which an insured State nonmember subsidiary was not considered to be an definition engaged in activities that are bank may interact with its subsidiary affiliate for purposes of section 23A and not permissible for a subsidiary of a that engages in activities that are not 23B as it was interpreted and applied by national bank. The exemption is not permissible for a subsidiary of a the FDIC) but is subject to section 23A limited, however, to State nonmember national bank.5 Those conditions are and 23B after that date (is considered an banks that applied for and obtained very similar but not identical to the affiliate relationship under Regulation consent to establish a subsidiary under restrictions found in section 23A and W) the subsidiary will not be treated as 12 CFR 362. It also covers section 24 23B and Regulation W. In addition, the an affiliate for purposes of part 324. subsidiaries that were established prior FDIC’s regulations which provide that a Under the exemption, the bank’s to the date on which the FDIC’s bank may simply file a notice before investment in the company, and its proposal was published for comment establishing a certain type of subsidiary that were (1) established after filing a require in most instances that a bank other covered transactions, if any, with 3 the company, will not count toward the notice under part 362, or (2) must abide by certain affiliate quantitative amount limitations that established pursuant to a provision of transaction restrictions when interacting would otherwise apply under part 324 part 362 that permits State nonmember with the subsidiary if a bank wants to banks to establish certain subsidiaries and outstanding transactions with the take advantage of the notice procedure. without filing notice or making company do not need to be brought into The affiliate transaction restrictions that application to the FDIC.4 Finally, the compliance with part 324. It also means apply in the case of a notice are the exemption also is intended to cover that, going forward, the bank is not same restrictions which have been subsidiaries established prior to the subject to the restrictions of part 324 imposed by the FDIC by order on a case- relevant date pursuant to a statutory whenever it deals with that subsidiary by-case basis. Banks that are eligible for exception in section 24 of the FDI Act company, e.g., any future extensions of the subsidiary relationship exemption which is restated in 12 CFR 362. but which are subject by order or credit to, or investments in, the As proposed, the subsidiary regulation to conditions placing subsidiary will not count toward the relationship exemption may be over restrictions on the bank’s transactions limits on covered transactions with inclusive to the extent that some of the with its subsidiary would still be subject affiliates to which the bank is subject. section 24 subsidiaries described above to those conditions (i.e., the proposed The exemption only applies, however, fall within an exception to the exemption would not supercede or for so long as the subsidiary’s activities definition of financial subsidiary found invalidate those conditions). are limited to those that were approved in Regulation W and thus are not by the FDIC by regulation or order, or As indicated above, the FDIC may, by regulation or order, exempt transactions which are covered by an exception in 3 12 CFR 362 permits state nonmember banks to section 24 of the FDI Act (12 U.S.C. establish certain subsidiaries after filing a notice or relationships from the requirements 1831a) (‘‘section 24’’), and were with the FDIC provided that certain conditions and and restrictions of sections 23A and 23B conducted as of the date on which the requirements are met. In each such instance the of the FRA if the FDIC finds that the conditions include affiliate transaction restrictions. exemption is in the public interest and FDIC’s proposal is published for 4 12 CFR 362 permits an insured state nonmember comment. If, for example, the subsidiary bank to establish a subsidiary that invests in bank consistent with the purposes of the changes its line of business in such a stock (§ 362.4(b)(4)(ii)); engages in certain leasing way that under Regulation W a newly activities (§ 362.4(b)(6)); invests in adjustable rate 5 Section 24 of the FDI Act requires the FDIC to preferred stock, money market preferred stock and determine that the activities to be engaged in by the established subsidiary of the bank doing similar instruments (§ 362.4(b)(7)); and holds a subsidiary do not present a significant risk to the control interest in a company that engages in fund. The FDIC can, and typically has, determined 2 The FDIC has the authority to adopt by insurance agency activities, any national bank that a particular activity does not present a regulation or order exemptions from the restrictions permissible activity, real estate leasing, or that significant risk to the fund provided that the of section 23A if the FDIC determines that the invests in adjustable rate and money market activity is conditioned in such a way as to make any exemption is in the public interest and is consistent preferred stock (§ 362.4(b)(3)(ii)) without filing an risk associated with the conduct of that activity by with the purposes of the section 23A of the FRA. application or a notice. the subsidiary acceptable.

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FRA. The proposed subsidiary securities) which are provided special State nonmember bank’’; ‘‘Board’’ relationship exemption should not have treatment under Regulation W. should be understood to mean ‘‘FDIC’’; an adverse impact on the public interest Section 324.2(b) of the proposal does and ‘‘appropriate Federal banking or be inconsistent with the purposes of not exempt transactions entered into by agency’’ should be understood to mean section 23A and 23B as most banks that a State nonmember bank prior to the ‘‘FDIC’’ wherever those words or have subsidiaries that are eligible for the publication date of the proposal from phrases are used in Regulation W. The exemption are already subject to affiliate compliance with Regulation W and part section also defines ‘‘State nonmember transaction conditions very similar to 324. All transactions with affiliates, bank’’ by cross referencing the those found in Regulation. The regardless of when entered into, are definition found in section 3 of the FDI exemption would not affect those governed by Regulation W and the Act (12 U.S.C. 1813(e)). conditions. The majority of the section phase-in periods adopted by the FRB in Sections 324.2(a), 324.3 and 324.4 24 subsidiaries which have been the case of member banks. Transactions together accomplish two important approved by the FDIC involved either entered into after December 12, 2002, things. They make clear that (1) the real estate subsidiaries or subsidiaries but before April 1, 2003, by member FDIC, as the Federal supervisor of that invest in equity securities.6 The banks with their affiliates were required insured State nonmember banks, is the to comply with Regulation W as of April appropriate party to whom insured State majority of the real estate subsidiaries 1, 2003. Transactions entered into prior nonmember banks must look for are subject to affiliate transaction to December 12, 2002, were required to guidance in interpreting the restrictions similar to those found in comply with Regulation W no later than requirements of sections 23A and 23B of Regulation W and many of those that are July 1, 2003. State nonmember banks the FRA as they apply to insured State not subject to such restrictions are that entered into transactions with nonmember banks through section 18(j) approvals to hold certain real estate affiliates that would have been required of the FDI Act, and (2) it is the FDIC investments pending their liquidation. to be in compliance with Regulation W which exercises discretion in applying The FDIC carefully reviewed the by either April 1, 2003, or July 1, 2003, the restrictions and limitations found in requests for consent to engage in equity if entered into by a member bank and Regulation W in those instances in securities investments through a which are not in compliance at this time which Regulation W provides for relief, subsidiary. Although many of the equity will be cited for a violation of section calls for determinations, or provides for securities applications were not made 23A and 23B and section 18(j)(1) of the the exercise of discretion by the FRB. In subject to affiliate transaction FDI Act as appropriate. Comment is short, by adopting the cross reference to restrictions, the applications that were invited as to whether the FDIC should Regulation W the FDIC is satisfying its approved were made subject to consider adopting some other treatment obligation to ensure that insured State whatever conditions the Board found in part 324. For example, should the nonmember banks are subject to necessary in its best judgment to protect FDIC grant an additional compliance sections 23A and 23B as though they the deposit insurance funds from risk period or perhaps grandfather pre- were member banks. It is only given the facts and circumstances of existing transactions? appropriate, and is in fact necessary to each application. (Section 24 requires the effective accomplishment of the Section 324.3 Submissions and the FDIC to determine that the conduct FDIC’s charge to oversee the safety and Requests for Hearing of business by subsidiaries such as these soundness of insured State nonmember does not present a significant risk before Section 324.3 informs insured State banks, for the FDIC to exercise the the FDIC may give its consent to nonmember banks that all filings, authority to make decisions with respect acquisition or establishment of the submissions, requests for hearings and to particular insured State nonmember subsidiary.) The majority of the equity other requests made under this part are banks and their transactions with subsidiaries that were approved to be made in accordance with the affiliates in the context of the overall involved small investments (less than procedures set out in 12 CFR 303. The facts and circumstances affecting those 10% of tier one capital) and in many intent of the provision is to eliminate banks. The FDIC is the supervisor of cases the equities in which those any confusion that might arise as to the these particular institutions and the subsidiaries sought consent to invest procedures to be followed by insured Federal supervisory agency that is in the were bank holding companies and other State nonmember banks (procedures best position to evaluate the need for similar firms. Most of the approvals found in Regulation W or elsewhere in relief. were conditioned in such a way as to FRB regulations or procedures found in As indicated above, part 324 makes it limit lending to the subsidiaries and to the FDIC’s regulations which might clear that the reference to the limit the amount of the investments that differ from those used by the FRB). This ‘‘appropriate Federal banking agency’’ the subsidiaries may in turn make. rulemaking would add a new § 303.251 as found in Regulation W means the Given the Board’s initial review and to 12 CFR 303 that would set out the FDIC. References to the FDIC in FDIC’s determination and the conditions to applicable procedures for submissions, regulations will normally be understood which the approvals are subject, the filings, and requests for hearing that are to refer to the FDIC’s Board of Directors FDIC does not believe that made under §§ 324.5 and 324.6 of the unless the Board of Directors has grandfathering these subsidiaries will be proposal. The proposed procedures are delegated the matter to some other contrary to the public interest. What is discussed in more detail below. individual within the agency. more, the FDIC notes that these equity Regulation W contains several Section 324.4 Definitions and Usage of provisions that permit the ‘‘appropriate investment securities are in many ways Terms similar to private equity funds (the Federal Banking agency’’ to make Section 324.4 of the proposal certain decisions. For example, section vehicle through which financial holding substitutes appropriate terminology for 223.15(b)(3) of Regulation W provides companies may invest in equity that found in Regulation W to make it that the appropriate Federal banking clear that, for the purposes of agency may set the amount by which a 6 A summary of requests approved by the FDIC’s Board of Directors can be viewed at http:// compliance with section 18(j)(1) of the bank’s share of a participation in a loan www.fdic.gov/regulations/resources/approved/ FDI Act and this part, ‘‘member bank’’ originated by an affiliate which is now index.html. should be understood to mean ‘‘insured a problem loan and which is being

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renewed (or for which additional funds Rather than continue the practice of 1208 (9th Cir. 2003) (FDIC has the are extended) may exceed 5% of the allowing insured State nonmember authority and obligation to afford bank’s original exposure without the banks to file exemption requests with opportunity for hearing and to conduct renewal constituting a purchase of a low the FRB, the FDIC is proposing to a control hearing). The standard under quality asset. Insured State nonmember instruct insured State nonmember banks the proposal for determining if control banks should note that it is the FDIC’s to file all exemption requests with the exists is whether the shareholder or present intent that the authority to make FDIC. Since FDIC is the primary Federal company has a controlling influence determinations under Regulation W that banking supervisor of insured State over the management or policies of the are to be made by the ‘‘appropriate nonmember banks and is more familiar other company. This standard is Federal banking agency’’ will be with the condition and overall identical to that found in section 23A of delegated to the Director of the Division management of those banks than the the FRA and is the same standard in of Supervision and Consumer Protection FRB, it is more appropriate for the FDIC FRB Regulation W.7 and the Director’s designee. to review and act on exemption requests If a hearing is requested by an insured from insured State nonmember banks. It Section 324.5 Exemption Requests State nonmember bank, or one of its is not only more appropriate to do so, shareholders, the hearing will be Section 223.43 of Regulation W (12 but the FDIC expects that following this conducted in accordance with the CFR 223.43) provides that the FRB may, new procedure will result in more procedures set out in 12 CFR 303. (See by regulation or order, at its discretion, efficiency in the review of the requests discussion below under the heading exempt transactions or relationships which will in turn benefit banks. We ‘‘Section 303.251 Affiliate transactions’’ from the requirements of section 23A if anticipate that individual reviews will for information regarding the hearing the FRB determines that the exemption take less time even though it is the procedures that are proposed for is in the public interest and is consistent FDIC’s intent to continue to coordinate comment.) with the purposes of section 23A. with the FRB to ensure that the FDIC’s proposed § 324.5 provides that standards under which exemption Proposed Amendments to 12 CFR 303 insured State nonmember banks may requests are evaluated are consistently Section 303.251 Affiliate Transactions request an exemption from the applied by the FDIC and the FRB. If FDIC is proposing to amend part 303 requirements and restrictions of section adopted, the regulation would not have of 23A, as implemented by Regulation governing filing procedures and certain any effect on exemptions previously hearings. Under the proposal, a new W, by filing a written request with the granted by the FRB. Those exemptions FDIC. The FDIC may, in its discretion, section would be added to subpart M— will continue to be valid and there ‘‘Other Filings’’ that would (1) set out grant an exemption if the FDIC would be no need for an insured State determines that it is in the public the procedures for filing a request for an nonmember bank to seek an order from exemption from section 23A, and (2) set interest to do so and the FDIC the FDIC affirming the prior exemption out the procedures governing hearings determines that granting the exemption granted by the FRB. to determine whether or not a is consistent with the purposes of Procedures for filing exemption section 23A. This provision is similar in requests are proposed for comment and shareholder or company exercises a purpose to §§ 324.2, 324.3 and 324.4 in are discussed below under the heading controlling influence over another that it makes clear that it is the FDIC ‘‘Section 303.251 Affiliate company. Exemption requests—As proposed in which is the appropriate agency to grant Transactions’’. If adopted, those §303.251(a), the procedures governing relief in the case of an insured State procedures would be set out in a new requests for an exemption from the nonmember bank. § 303.251. Exemptions from the restrictions of restrictions of section 23A would Regulation W are available for insured Section 324.6 Controlling Influence require the requesting bank to file a State nonmember banks under the same Determinations letter with the appropriate FDIC office standards that apply to member banks, Section 23A of the FRA requires a that (1) describes in detail the i.e., if the exemption is in the public shareholder or a company to be given relationship or transaction for which the interest and it is consistent with the notice and opportunity for a hearing bank is seeking an exemption, (2) purposes of section 23A. Exemptions before the shareholder or company is identifies the requirements or are thus available to member and determined to directly or indirectly restrictions from which the bank is nonmember banks ‘‘in the same exercise a controlling influence over the seeking relief, and (3) sets out an manner’’ (after filing a request for an management or policies of another explanation of why the exemption is in exemption) and ‘‘to the same extent’’ company. The impact of a the public interest and is consistent (after the bank’s request is evaluated determination that such influence is with the purposes of section 23A. The based upon the same standards). The found to exist is that the shareholder or FDIC may request any additional only difference is that it is the FDIC company is considered to control the information that is, in its opinion, which, based on its unique supervisory other company, thus making the necessary to properly evaluate the perspective and familiarity with the companies affiliates for the purposes of request. Banks that file exemption institution in question, evaluates section 23A. requests will receive written notification whether those standards are met and Section 324.6 of the proposed of the FDIC’s decision. The proposed whether it is appropriate to grant an regulation restates the statutory exemption procedures are substantially exemption. obligation for opportunity for a hearing Past practice has been for insured prior to the control determination being 7 The FDIC recognizes that it will be necessary to coordinate with the FRB to assure consistency as State nonmember banks to apply to the made. It also makes it clear that the between the application of the standard to member FRB to obtain exemptions from the FDIC and not the FRB is the agency that banks and state nonmember banks. We note, restrictions of section 23A. Usually the affords the opportunity for a hearing however, that to date the FRB has never had a FRB consults with the FDIC prior to and makes the final determination on control hearing under the relevant provisions of section 23A of the FRA. At this time there is no granting exemptions. Absent unusual the control issue when an insured State existing prior FRB precedent resulting from a circumstances, if the FDIC objects to the nonmember bank is involved. (See, control hearing for the FDIC to take into exemption request, it is not granted. Roque De La Feunte II v. FDIC, 332 F.3d consideration.

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the same as those adopted by the FRB The presiding officer is responsible for 3. Should the FDIC continue its past in Regulation W for member banks with conducting the hearing, determining practice of allowing the FRB to act on the exception that, unlike member any procedural question that is not exemption requests by insured State banks, State nonmember banks would specifically addressed by § 303.251(b), nonmember banks or adopt the file requests with an FDIC regional and rendering a final determination proposed change in practice which office rather than with the agency’s within 20 days of the date on which the would direct insured State nonmember General Counsel. At the present time it hearing record is closed. The banks to file such requests with the is anticipated that the FDIC’s Board of participants will be notified in writing FDIC, which would then grant or deny Directors will retain the authority to of the final disposition which will the request? grant exemptions and will not delegate contain an explanation of the reasons 4. If the FDIC adopts the practice of that responsibility. for the final decision. acting on exemption requests, are the Controlling influence hearing The final determination may be proposed procedures for exemption requests—Procedures governing appealed to the Board of Directors of the requests sufficiently clear? Is the requests for hearings and the actual FDIC. To do so a request for review information that is required to be conduct of hearings to determine must be filed the Executive Secretary of presented in an exemption request control are set out in proposed the FDIC within 15 days of the date on burdensome? Should the regulation § 303.251(b). Under the proposed which notification of the final decision require that additional, specifically procedures the FDIC is required to is received. identified information be included in provide a shareholder or company The proposal indicates that the the request? Should the regulation written notice of an opportunity for procedures currently set out in provide specifics on the time in which hearing before the agency makes a §§ 303.10(f) through 303.10(i), 303.10(k) the FDIC will act on exemption determination that there is an affiliation and 303.10(m) will govern the conduct requests? based on the ability to exercise a of the hearing. Section 303.10 is titled 5. Are the proposed hearing controlling influence over the ‘‘Hearings and other meetings’’. procedures adequate? What additional management or policies of another Paragraph (f) governs participation in procedures if any should be included? company. A company or shareholder hearings. Paragraph (g) governs Should the regulation specify that the that wants a hearing must respond to transcripts. Paragraph (h) governs hearing will take place no later than a that effect no later than 10 days after presentations and information that may certain specified period of time after the receiving the written notice of be submitted. It also identifies federal request for hearing is submitted to the opportunity for hearing by filing a laws that are not applicable to hearings. FDIC? Is it appropriate to apply the request for a hearing with the Paragraph (i) governs the closing of the procedures found in §§ 303.10(f) ‘‘appropriate FDIC office’’ as that term is hearing record. Paragraph (k) governs through 303.10(i), 303.10(k) and defined in 12 CFR 303. Which FDIC the computation of time. Paragraph (m) 303.10(m) to a controlling influence office is the ‘‘appropriate FDIC office’’ is provides that the Board of Directors may hearing? dependent upon whether the institution delegate by resolution to the presiding 6. Should the Board of Directors that is the subject of a filing is not part officer the authority to adopt different delegate the authority to grant of a group of related institutions. If that procedures in individual matters. exemptions under the regulation or is the case, the appropriate regional retain the authority to grant exemptions office for that institution, and any Request for Comments at the Board level? individual associated with the 7. Should the Board of Directors In addition to any other comments on institution, is the FDIC region in which delegate the authority to make a final the proposal, the FDIC specifically the institution is located. (See control determination or should that requests comment on the following. § 303.2(g)(1) of current part 303). If the authority be retained only at the Board 1. Is it advisable for the FDIC to adopt institution that is the subject of a filing level? is part of a group of related institutions, separate rules implementing section 8. If decision making authority with the appropriate FDIC regional office for 18(j)(1) of the FDI Act and section 23A respect to control determinations is that institution, and any individual and 23B of the FRA as they apply to delegated, is it appropriate to allow an associated with that institution, is the insured State nonmember banks? appeal of the decision and if so, to FDIC region in which the group’s major 2. If the FDIC does adopt separate whom? policy and decision makers are located regulations, should the regulation set 9. Is the FDIC correct in its initial (or any other region the FDIC designates out the full text of Regulation W rather view that the proposed exemption for on a case-by-case basis). (See than adopt the proposed cross section 24 subsidiaries that were § 303.2(g)(2) of current part 303). reference? If the FDIC adopted a full text established prior to the publication of Requests for a control hearing will be version it would be identical to this proposal from part 324 will not acknowledged in writing. The date and Regulation W with the exception that adversely impact the public or be time for hearings will be set by the FDIC ‘‘insured State nonmember bank’’ would inconsistent with the purposes of solely in its discretion (‘‘such time as be substituted for ‘‘member bank’; section 23A and 23B? FDIC determines to be reasonable’’). In ‘‘FDIC’’ would be substituted for 10. Should the FDIC draft the setting the date for the hearing the FDIC ‘‘Board’; ‘‘FDIC’’ would be substituted subsidiary exemption more narrowly? If will take care to consider the for ‘‘appropriate Federal banking so, why? Should the exemption be convenience of the participants in agency’’; the definition of ‘‘member broader in scope? If so, why? addition to other factors such as the bank’’ would be replaced with a 11. Should the FDIC consider complexity of the issues and the definition of ‘‘State nonmember bank’’ additional exemptions at this time? potential effects of the timing of the (definition would be the same as 12. Should the FDIC consider granting hearing on associated matters such as a currently proposed) and the authority, a phase-in period for transactions that pending examination. The presiding purpose and scope paragraph as found were entered into prior to the officer will be the Director of the in Regulation W would be modified to publication of the proposal? If so, Division of Supervision and Consumer read as those paragraphs are proposed should the phase-in period mirror the Protection or the Director’s designee. for comment. phase-in period the FRB adopted for

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member banks (i.e., three months from information technology, for example, an operating subsidiary of the the effective date of the rule) or would permitting electronic submission of institution after the acquisition. some other period be more appropriate? responses; and Regulation W requires the institution to 13. Should the FDIC consider 5. Estimates of capital or start-up costs provide its appropriate Federal banking exempting from part 324 transactions and costs of operation, maintenance, agency and the FRB with written notice that were entered into prior to the and purchases of services to provide of its intention to acquire the company publication of the proposal? If so, why? information. at or before the time that the company Would such an exemption pose safety Title of the collection: Transactions becomes an affiliate of the institution. and soundness issues? with affiliates. Through part 324’s cross-reference, 14. FDIC’s view is that insured State Summary of the collection: As insured State nonmember institutions branches, agencies, and commercial discussed more fully in the preamble, will provide that notice to the FDIC. lending companies of foreign banks are the FDIC’s 12 CFR part 324 will make There will be no reporting form subject to the substantive provisions of clear that insured State nonmember associated with this information Regulation W and this part. Comment is institutions must conform to the collection. The FDIC estimates that requested on whether the proposed standards of FRB’s Regulation W and approximately three insured State regulation is sufficiently clear in that that the FDIC is responsible for nonmember institutions will file this regard and whether or not the FDIC is administering Regulation W as it applies notice annually and that it will take justified in its view. to such institutions, including receiving approximately six hours to prepare the 15. Are the proposed amendments to and acting on notices required by notice. the FDIC’s regulations written clearly Regulation W. The third notice requirement, and in ‘‘plain language’’? If not, what The notices required in this collection described in Regulation W’s section changes should be made to the proposed are required to evidence compliance 223.41(d)(2), is a condition to an language to make it clearer and easier to with sections 23A and 23B of the exemption for internal corporate understand? Federal Reserve Act (12 U.S.C. 371c and reorganization transactions. Regulation 371c–1) and section 18(j)(1) of the W requires the depository institution to Paperwork Reduction Act Federal Deposit Insurance Act (‘‘FDI provide its appropriate Federal banking In accordance with the Paperwork Act’’). The respondents for part 324 will agency and the FRB with written notice Reduction Act (44 U.S.C. 3501 et seq.), be insured State nonmember of the transaction before consummation. the FDIC may not conduct or sponsor, institutions. Insured State nonmember institutions and a person is not required to respond Regulation W established four notices will provide notice to the FDIC. The to, a collection of information unless it at (12 CFR) sections 223.15(b)(4), notice must describe the primary displays a currently valid Office of 223.31(d)(4), 223.41(d)(2) and 223.43(b). business activities of the affiliate and Management and Budget (OMB) control The FDIC will require insured state indicate the proposed date of the number. The collection of information nonmember institutions to provide the reorganization. There will be no contained in this rule has been first three of these notices to the FDIC reporting form associated with this submitted to OMB for review. by the part 324’s cross-reference to information collection. The FDIC Written comments on the collection of Regulation W. The fourth Regulation W estimates that approximately seven information should be sent to the Joseph notice (223.43(b)) will not be required insured state nonmember institutions F. Lackey, FDIC desk officer: Office of through the part 324 cross-reference. will file this notice annually and that it Management and Budget, Office of Instead, the FDIC equivalent of that will take approximately six hours to Information and Regulatory Affairs, notice will be required through 12 CFR prepare a notice. New Executive Office Building, 303.251. Finally, part 324 will not require Washington, DC 20503. Copies of The first notice requirement, insured state nonmember institutions to comments should also be sent to: described in Regulation W’s section send a notice to the FDIC through a Thomas Nixon, Legal Division, FDIC, 223.15(b)(4), is a condition to an cross-reference to Regulation W’s 550 17th Street, NW., Washington, DC exemption for renewals of loan section 223.43(b). Instead, pursuant to 20429, (202) 898–8766. For further participations involving problem loans. § 303.251, they must submit a request to information on the Paperwork Regulation W requires the participating the appropriate FDIC regional office. Reduction Act aspect of this rule, depository institution to provide its The request must describe in detail the contact Thomas Nixon at the above appropriate Federal banking agency transaction or relationship for which the address. with written notice of the renewal or institution seeks exemption; explain Comment is solicited on: extension of additional credit not later why the FDIC should exempt the 1. Whether the collection of than 20 days after consummation. The transaction or relationship; and explain information is necessary for the proper FDIC is the appropriate Federal banking how the exemption would be in the performance of FDIC functions, agency to which insured State public interest and consistent with the including whether the information will nonmember institutions are to provide purposes of section 23A. There will be have practical utility; this notice. There will be no reporting no reporting form associated with this 2. The accuracy of our estimate of form associated with this information information collection. The FDIC burden of the proposed collection of collection. The FDIC estimates that estimates that approximately two information, including the validity of approximately three insured State insured State nonmember institutions the methodology and assumptions used; nonmember institutions will file this will file these requests annually and 3. The quality, utility, and clarity of notice annually and that it will take that it will take approximately 10 hours the information to be collected; approximately two hours to prepare the to prepare a request. 4. Ways to minimize the burden of the notice. Burden estimate: The total estimated information collection on those who are The second notice requirement, annual burden for insured State to respond, including through the use of described in Regulation W’s section nonmember institutions that must appropriate automated, electronic, 223.31(d)(4), is a condition to an comply with the above-mentioned mechanical, or other technological exemption for a depository institution’s requirements is 86 hours. Based on a collection techniques or other forms of acquisition of an affiliate that becomes rate of $50 per hour, the total annual

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cost to the public for these collections appropriate agency to grant exemptions be filed. Banks will not require the of information is estimated to be $4,300. from sections 23A and 23B to insured services of attorneys, consultants, State nonmember banks as well as to appraisers, accountants or other Regulatory Flexibility Act make other determinations under professionals to prepare and submit the In accordance with section 3(a) of the Regulation W, are set out more fully notices nor do these notices require the Regulatory Flexibility Act (5 U.S.C. under the supplementary information use of sophisticated computer programs, 603(a)), the FDIC must publish an initial section of this document. The proposed statistical analysis, or other complex regulatory flexibility analysis with this rule would apply to all insured State tracking or recordkeeping systems. rulemaking or certify that the proposed nonmember banks regardless of their While some aspects of Regulation W rule, if adopted, will not have a size. may require tracking or other significant economic impact on a Regulation W largely codifies the compliance systems in order for a bank substantial number of small entities. For application of section 23A and 23B of to comply with the requirements of the the purposes of the required analysis or the FRA as to member and State rule or to take advantage of certain certification, financial institutions with nonmember banks as interpreted and exemptions contained in the rule, those total assets of $150 million or less are applied before that rule’s adoption. In systems as well as any burden arising considered to be ‘‘small entities’’. For most instances the differences between out of FDIC’s proposed rule would be the reasons set out below the FDIC what a bank needed to do to comply present for State nonmember banks hereby certifies pursuant to 5 U.S.C. with section 23A or 23B previously and regardless of whether the FDIC adopts 605(b) that the proposed rule, if what is required to be done in order to the proposal or not. The impact of the adopted, will not have a significant proposed rule is largely procedural in economic impact on a substantial comply with section 23A or 23B post Regulation W are minimal. In many that its purpose is to clarify for State number of small entities. nonmember banks that it is the FDIC Sections 23A and 23B of the FRA instances Regulation W actually grants that administers the requirements of limit transactions between a member relief from restrictions contained in the Regulation W as to insured state bank and its affiliates. The FDIC statute. Regulation W does contain some nonmember banks. The rule does not enforces sections 23A and 23B of the new notice requirements and sets out impose any new or different substantive FRA as to insured State nonmember specifics as to filing requirements if a requirement. In short, proposed part 324 banks under section 18(j)(1) of the FDI bank wishes to obtain an exemption does not itself impose any burden on Act which provides that insured State from section 23A as to a particular small institutions that is not already nonmember banks are subject to transaction or relationship. Those imposed under Regulation W. sections 23A and 23B of the FRA as requirements are discussed above under though they were member banks. the heading ‘‘Paperwork Reduction Impact on Families Section 9 (Tenth) of the FDI Act Act’’. Of the requirements discussed The FDIC has determined that this authorizes the FDIC to issue such under that heading, the requirements proposed rule will not affect family regulations as may be necessary to necessary to obtain an exemption are well-being within the meaning of administer and carry out the purposes of the most onerous. Based on FDIC’s section 654 of the Treasury and General those sections. The proposed rule would experience as to the number and size of Government Appropriations Act, 1999, make clear to insured State nonmember State nonmember banks that have banks that in order to comply with sought such exemptions in the past, we Public Law 105–277, 112 Stat. 2681 section 18(j)(1) of the FDI Act they must anticipate very few such requests and (1998). comply with the substantive provisions the institutions most likely to file an List of Subjects of FRB Regulation W which was exemption request can be expected to be adopted in final by the FRB on larger than $150 million in total assets. 12 CFR Part 324 December 12, 2002 to implement the In 2003 only three insured State Banks, banking, Safety and requirements and restrictions of sections nonmember banks requested Soundness, Transactions with affiliates. 23A and 23B of the FRA as they apply exemptions from section 23A. Only one to member banks. Regulation W is of the three institutions was under $150 12 CFR Part 303 codified at 12 CFR 223. It appeared in million in total assets. Regulation W Administrative practice and volume 67 of the Federal Register at also requires a notice in connection procedure, Authority delegations page 76560 (67 FR 76560). A full with corporate reorganizations that are (Government agencies), Bank deposit description of the reasons why the FRB exempted from some of the restrictions insurance, Banks, banking, Bank merger, considered and adopted Regulation W of section 23A and 23B without need of Branching, Foreign branches, Foreign are set out in the Federal Register a case-by-case determination. Again investments, Gold parachute payments, document which contained Regulation based on our past experience we Insured branches, Interstate branching, W as originally proposed for comment anticipate that banks that will take Reporting and recordkeeping (66 FR 24186, May 11, 2001) and in advantage of this exemption are likely to requirements, Savings associations. Regulation W as adopted in final form. be larger than $150 million in total The Board of Directors of the Federal The FRB describes Regulation W as a assets. Over the years, exemption Deposit Insurance Corporation hereby regulation which, although designed to requests have typically involved proposes to add a new part 324 to title comprehensively implement sections reorganization transactions and as stated 12 of the Code of Federal Regulations 23A and 23B of the FRA, is a regulation above, banks that file exemption and amend part 303 of title 12 of the that in large measure simply codifies the requests are more likely to be banks in Code of Federal Regulations as follows: FRB’s past practice and interpretations excess of $150 million in total assets. 1. The authority citation for part 324 with respect to sections 23A and 23B. Although we cannot come to the same reads as follows: The reasons the FDIC is proposing to conclusion with respect to the final two adopt a cross reference to Regulation W categories of notices described under Authority: 12 U.S.C. 1819(tenth), in its regulations and, is further the Paperwork Reduction Act heading, 1828(j)(1). proposing to amend its regulations to those notice requirements are minimal 2. New part 324 is added to read as make clear that the FDIC is the in terms of the information required to follows:

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PART 324—TRANSACTIONS WITH § 324.3 Filings, submissions, requests and § 303.251 Affiliate transactions. AFFILIATES hearings. (a) Exemption requests. (1) Scope— Filings, submissions, and requests This paragraph contains the procedures Sec. made under section 324.5 and section to be followed by an insured state 324.1 Authority, purpose and scope. 324.6 of this part are governed by 12 nonmember bank that wants to obtain 324.2 Affiliate transactions. an order from the FDIC exempting 324.3 Filings, submissions, requests and CFR 303.251. All other filings, submissions or requests under this part affiliate transactions or relationships hearings. from the requirements of part 324 (12 324.4 Definitions and usage of terms. are governed by subpart A of 12 CFR 303. Procedures to which member banks CFR 324) and section 23A of the Federal 324.5 Exemptions. Reserve Act (12 U.S.C. 371c) as made 324.6 Controlling influence determinations. are subject under FRB Regulation W for filings, submissions, requests and applicable to insured state nonmember § 324.1 Authority, purpose and scope. hearings do not apply in the case of a banks by section 18(j)(1) of the FDI Act State nonmember bank. (12 U.S.C. 1828(j)(1)). (a) Authority. This part is issued (2) Where to File. Applicants shall under the authority of sections 9 (tenth) § 324.4 Definitions and usage of terms. submit a letter application to the and 18(j)(1) of the Federal Deposit appropriate FDIC office. Insurance Act (FDI Act) (12 U.S.C. 1819 For purposes of compliance with this (3) Content of Filing. The application (tenth), 1828(j)(1)). part insured state nonmember banks shall contain the following: should substitute ‘‘insured State (b) Purpose. This part implements (i) A detailed description of the nonmember bank’’ for ‘‘member bank’’ relationship or transaction for which the section 18(j)(1) of the FDI Act and and ‘‘FDIC’’ for ‘‘Board’’ wherever those sections 23A and 23B of the Federal applicant is seeking an exemption, terms appear in Federal Reserve Board (ii) An identification of the Reserve Act (FRA) (12 U.S.C. 371c, Regulation W. The phrase ‘‘appropriate requirements or restrictions from which 371c–1) as to insured State nonmember Federal banking agency’’ as used in the applicant is seeking relief, and banks. Section 18(j)(1) of the FDI Act Federal Reserve Board Regulation W (iii) A statement of why the requested makes insured State nonmember banks should in all instances be read to mean relief is in the public interest and subject to the restrictions of sections ‘‘FDIC’’. ‘‘State nonmember bank’’ has consistent with the purposes of section 23A and 23B of the FRA in the same the same meaning as in 12 U.S.C. 18(j)(1) of the FDI Act. manner and to the same extent as if 1813(e)(2). (4) Additional information. The FDIC insured State nonmember banks are § 324.5 Exemptions. may request additional information at member banks of the Federal Reserve any time during the processing of the System. Section 23A and 23B of the An insured State nonmember bank filing. FRA establish certain quantitative limits may request that the FDIC exempt (5) Processing. The FDIC will provide and other prudential requirements for transactions or relationships from the the applicant with written notification loans, purchases of assets, and certain requirements of section 23A of the FRA of the final action when the decision is other transactions between a member as implemented by this part. Exemption rendered. bank and its affiliates. Federal Reserve requests may be granted by the FDIC in (b) Controlling influence Board (FRB) Regulation W (12 CFR 223) its discretion if it finds such exemption determinations. (1) Scope—This implements sections 23A and 23B of the to be in the public interest and to be paragraph contains the procedures the FRA as to member banks by defining consistent with the purposes of section FDIC will follow when determining for terms used in sections 23A and 23B, 23A. the purposes of part 324 whether a explaining the requirements of those company or shareholder controls statutory provisions and exempting § 324.6 Controlling influence another company as a result of directly certain transactions from the restrictions determinations. or indirectly exercising a controlling and limitations of the FRA. Determinations by the FDIC that a influence over the management or (c) Scope. This part applies to insured shareholder or company directly or policies of such company. State nonmember banks. indirectly exercises a controlling (2) Opportunity for hearing. Prior to influence over the management or determining that a shareholder or a § 324.2 Affiliate transactions. policies of another company will only company has a controlling influence (a) General. Insured State nonmember be made after notice and opportunity for over the management or policies of banks are subject to the restrictions and hearing. Hearings will be conducted in another company, the shareholder or limitations contained in section 23A accordance with 12 CFR 303.251. company will be provided written and 23B of the FRA and FRB Regulation notice of an opportunity for hearing. 3. The authority citation for part 303 (3) Hearing requests. Requests for a W on transactions by member banks continues to read as follows: hearing must be received by the FDIC no with affiliates in the same manner and Authority: 12 U.S.C. 378, 1813, 1815, 1817, later than 10 days after a written notice to the same extent as if they were 1818, 1819 (Seventh and Tenth), 1820, 1823, of opportunity for a hearing is received. member banks of the Federal Reserve 1828, 1831a, 1831e, 1831o, 1831p–1, 1831w, (4) Where to File. Requests for a System. 1835a, 1843(l), 3104, 3105, 3108, 3207; 15 U.S.C. 1601–1607. hearing must be submitted by letter to (b) Exception. Any subsidiary the appropriate FDIC office. relationship that predates March 17, 4. Sections 303.251 and 303.252 of (5) Timing of hearing. Upon receipt of 2004, is exempt from the requirements subpart M of part 303 are redesignated a request for hearing, the FDIC will and restrictions of this part that would as §§ 303.252 and 303.253. acknowledge the request in writing and otherwise apply if such relationship set such date for the hearing as is 5. Section 303.251 is added to subpart would not have been subject to section determined by the FDIC to be M of part 303 to read as follows: 23A and 23B of the FRA prior to reasonable. December 12, 2002, because the Subpart M—Other Filings (6) Hearing Procedures. The presiding subsidiary would not have at that time officer shall be the Director of the been considered to be an affiliate. * * * * * Division of Supervision and Consumer

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Protection or the Director’s designee. ADDRESSES: Submit comments in environmental, and energy aspects of Hearings will be conducted in triplicate to the Federal Aviation the proposed rule. All comments accordance with sections 303.10(f)– Administration (FAA), Transport submitted will be available, both before section 303.10(i), section 303.10(k) and Airplane Directorate, ANM–114, and after the closing date for comments, section 303.10(m). The presiding officer Attention: Rules Docket No. 2002–NM– in the Rules Docket for examination by is responsible for conducting the 251–AD, 1601 Lind Avenue, SW., interested persons. A report hearing, determining all procedural Renton, Washington 98055–4056. summarizing each FAA-public contact questions not governed by paragraph (b) Comments may be inspected at this concerned with the substance of this of this section and making the final location between 9 a.m. and 3 p.m., proposal will be filed in the Rules determination within 20 days of the Monday through Friday, except Federal Docket. date on which the hearing record is holidays. Comments may be submitted Commenters wishing the FAA to closed. Participants will be notified in via fax to (425) 227–1232. Comments acknowledge receipt of their comments writing of the final disposition and may also be sent via the Internet using submitted in response to this action provided an explanation of the reasons the following address: 9-anm- must submit a self-addressed, stamped for the final decision. [email protected]. Comments sent postcard on which the following (7) Review of final decision. Final via fax or the Internet must contain statement is made: ‘‘Comments to decisions resulting in a determination ‘‘Docket No. 2002–NM–251–AD’’ in the Docket Number 2002–NM–251–AD.’’ that control exists may be appealed to subject line and need not be submitted The postcard will be date stamped and the Board of Directors of the FDIC by in triplicate. Comments sent via the returned to the commenter. filing a request for review with the Internet as attached electronic files must Availability of NPRMs Executive Secretary of the FDIC no later be formatted in Microsoft Word 97 or than 15 days after the date on which 2000 or ASCII text. Any person may obtain a copy of this written notification of the final decision The service information referenced in NPRM by submitting a request to the is received. the proposed rule may be obtained from FAA, Transport Airplane Directorate, Dated at Washington, DC, this 10th day of Fokker Services B.V., PO Box 231, 2150 ANM–114, Attention: Rules Docket No. March, 2004. AE Nieuw-Vennep, the Netherlands. 2002–NM–251–AD, 1601 Lind Avenue, By order of the Board of Directors. This information may be examined at SW., Renton, Washington 98055–4056. Federal Deposit Insurance Corporation. the FAA, Transport Airplane Discussion Robert E. Feldman, Directorate, 1601 Lind Avenue, SW., The Civil Aviation Authority—the Executive Secretary. Renton, Washington. Netherlands (CAA–NL), which is the [FR Doc. 04–5928 Filed 3–16–04; 8:45 am] FOR FURTHER INFORMATION CONTACT: Tom airworthiness authority for the BILLING CODE 6714–01–P Rodriguez, Aerospace Engineer; Netherlands, notified the FAA that an International Branch, ANM–116, FAA, unsafe condition may exist on certain Transport Airplane Directorate, 1601 Fokker Model F.28 Mark 0070 series DEPARTMENT OF TRANSPORTATION Lind Avenue, SW., Renton, Washington airplanes. The CAA–NL advises that an 98055–4056; telephone (425) 227–1137; operator reported an occurrence of a Federal Aviation Administration fax (425) 227–1149. short circuit between two cables SUPPLEMENTARY INFORMATION: attached to a contactor in the electrical 14 CFR Part 39 power center (EPC) while an airplane Comments Invited [Docket No. 2002–NM–251–AD] was on the ground and powered by Interested persons are invited to external power only. The short circuit RIN 2120–AA64 participate in the making of the occurred due to incorrect installation of proposed rule by submitting such the wires on the contactor, which left Airworthiness Directives; Fokker written data, views, or arguments as Model F.28 Mark 0070 Series Airplanes minimal clearance between the cable they may desire. Communications shall terminals. The operator also discovered AGENCY: Federal Aviation identify the Rules Docket number and the same condition on another airplane. Administration, DOT. be submitted in triplicate to the address This condition, if not corrected, could ACTION: Notice of proposed rulemaking specified above. All communications result in a short circuit in the EPC, (NPRM). received on or before the closing date possibly leading to a fire in the main for comments, specified above, will be cabin and damage to the airplane or SUMMARY: This document proposes the considered before taking action on the injury to passengers and flightcrew. adoption of a new airworthiness proposed rule. The proposals contained directive (AD) that is applicable to in this action may be changed in light Explanation of Relevant Service certain Fokker Model F.28 Mark 0070 of the comments received. Information series airplanes. This proposal would Submit comments using the following Fokker Services B.V. has issued require inspection of cables installed on format: Service Bulletin SBF100–24–035, dated certain contactors in the electrical • Organize comments issue-by-issue. May 27, 2002, which describes power center (EPC) for proper For example, discuss a request to procedures for inspection of cables installation of wires, and reinstallation change the compliance time and a installed on certain contactors in the of wires if necessary. These actions are request to change the service bulletin EPC for proper installation of wires, and necessary to prevent a short circuit in reference as two separate issues. reinstallation of wires, if necessary. the EPC, possibly leading to a fire in the • For each issue, state what specific Accomplishment of the actions main cabin and damage to the airplane, change to the proposed AD is being specified in the service bulletin is or injury to passengers and flightcrew. requested. intended to adequately address the These actions are intended to address • Include justification (e.g., reasons or identified unsafe condition. The CAA– the identified unsafe condition. data) for each request. NL classified this service bulletin as DATES: Comments must be received by Comments are specifically invited on mandatory and issued Dutch April 16, 2004. the overall regulatory, economic, airworthiness directive 2002–112, dated

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July 31, 2002, to ensure the continued operator has yet accomplished any of Fokker Services B.V.: Docket 2002–NM–251– airworthiness of these airplanes in the the proposed requirements of this AD AD. Netherlands. action, and that no operator would Applicability: Model F.28 Mark 0070 series accomplish those actions in the future if airplanes, serial numbers 11521, and 11528 FAA’s Conclusions this AD were not adopted. The cost through 11585 inclusive; certificated in any This airplane model is manufactured impact figures discussed in AD category. in the Netherlands and is type rulemaking actions represent only the Compliance: Required as indicated, unless certificated for operation in the United time necessary to perform the specific accomplished previously. States under the provisions of section actions actually required by the AD. To prevent a short circuit in the electrical 21.29 of the Federal Aviation These figures typically do not include power center (EPC), possibly leading to a fire Regulations (14 CFR 21.29) and the incidental costs, such as the time in the main cabin and damage to the applicable bilateral airworthiness required to gain access and close up, airplane, or injury to passengers and agreement. Pursuant to this bilateral planning time, or time necessitated by flightcrew, accomplish the following: airworthiness agreement, the CAA–NL other administrative actions. Inspection, and Reinstallation If Necessary has kept the FAA informed of the Regulatory Impact (a) Within 6 months after the effective date situation described above. The FAA has of this AD, perform a general visual examined the findings of the CAA–NL, The regulations proposed herein inspection of the 4 contactors having part reviewed all available information, and would not have a substantial direct number 9124–9283 located in the EPC for determined that AD action is necessary effect on the States, on the relationship proper installation of the wires; in for products of this type design that are between the national Government and accordance with the Accomplishment certificated for operation in the United the States, or on the distribution of Instructions of Fokker Service Bulletin States. power and responsibilities among the SBF100–24–035, dated May 27, 2002. Explanation of Requirements of various levels of government. Therefore, (1) If the installation is correct, no further action is required by this AD. Proposed Rule it is determined that this proposal would not have federalism implications (2) If the installation is incorrect, prior to Since an unsafe condition has been under Executive Order 13132. further flight, reinstall the wires in identified that is likely to exist or accordance with the Accomplishment For the reasons discussed above, I develop on other airplanes of the same Instructions of the service bulletin. certify that this proposed regulation (1) type design registered in the United is not a ‘‘significant regulatory action’’ Note 1: For the purposes of this AD, a States, the proposed AD would require general visual inspection is defined as: ‘‘A under Executive Order 12866; (2) is not accomplishment of the actions specified visual examination of an interior or exterior a ‘‘significant rule’’ under the DOT in the service bulletin described area, installation, or assembly to detect Regulatory Policies and Procedures (44 previously, except as discussed below. obvious damage, failure, or irregularity. This FR 11034, February 26, 1979); and (3) if level of inspection is made from within Differences Among the Proposed AD, promulgated, will not have a significant touching distance unless otherwise specified. the Service Bulletin and the Dutch economic impact, positive or negative, A mirror may be necessary to enhance visual Airworthiness Directive on a substantial number of small entities access to all exposed surfaces in the Operators should note that, although under the criteria of the Regulatory inspection area. This level of inspection is the referenced service bulletin and the Flexibility Act. A copy of the draft made under normally available lighting Dutch Airworthiness Directive include regulatory evaluation prepared for this conditions such as daylight, hangar lighting, instructions for reporting the results of action is contained in the Rules Docket. flashlight, or droplight and may require all inspections to Fokker Services. B.V., A copy of it may be obtained by removal or opening of access panels or doors. this proposed AD would not require contacting the Rules Docket at the Stands, ladders, or platforms may be required to gain proximity to the area being checked.’’ those actions. location provided under the caption ADDRESSES. Clarification of Inspection Terminology Exception to Service Bulletin Reporting List of Subjects in 14 CFR Part 39 Although the Dutch Airworthiness (b) Although Fokker Service Bulletin SBF100–24–035, dated May 27, 2002, Directive and the referenced service Air transportation, Aircraft, Aviation safety, Safety. specifies that all inspection results be bulletin do not specify the type of reported to Fokker Services. B.V., this inspection for the affected cables, this The Proposed Amendment proposed AD does not include such a proposed AD describes the inspection as requirement. a ‘‘general visual inspection.’’ Note 1 of Accordingly, pursuant to the this proposed AD has been included to authority delegated to me by the Alternative Methods of Compliance define this type of inspection. Administrator, the Federal Aviation (c) In accordance with 14 CFR 39.19, the Administration proposes to amend part Manager, International Branch, ANM–116, Cost Impact 39 of the Federal Aviation Regulations FAA, Transport Airplane Directorate, is The FAA estimates that 2 airplanes of (14 CFR part 39) as follows: authorized to approve alternative methods of U.S. registry would be affected by this compliance for this AD. proposed AD, that it would take PART 39—AIRWORTHINESS Note 2: The subject of this AD is addressed approximately 2 work hours per DIRECTIVES in Dutch airworthiness directive 2002–112, airplane to accomplish the proposed dated July 31, 2002. inspection, and that the average labor 1. The authority citation for part 39 rate is $65 per work hour. Based on continues to read as follows: Issued in Renton, Washington, on March 5, 2004. these figures, the cost impact of the Authority: 49 U.S.C. 106(g), 40113, 44701. proposed AD on U.S. operators is Ali Bahrami, estimated to be $260, or $130 per § 39.13 [Amended] Acting Manager, Transport Airplane airplane. 2. Section 39.13 is amended by Directorate, Aircraft Certification Service. The cost impact figure discussed adding the following new airworthiness [FR Doc. 04–5942 Filed 3–16–04; 8:45 am] above is based on assumptions that no directive: BILLING CODE 4910–13–P

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DEPARTMENT OF TRANSPORTATION The service information referenced in FAA, Transport Airplane Directorate, the proposed rule may be obtained from ANM–114, Attention: Rules Docket No. Federal Aviation Administration Fokker Services B.V., PO Box 231, 2150 2003–NM–162–AD, 1601 Lind Avenue, AE Nieuw-Vennep, the Netherlands. SW., Renton, Washington 98055–4056. 14 CFR Part 39 This information may be examined at Discussion [Docket No. 2003–NM–162–AD] the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., On November 26, 2001, the FAA RIN 2120–AA64 Renton, Washington. issued AD 2001–24–10, amendment 39– FOR FURTHER INFORMATION CONTACT: Tom 12527 (66 FR 63159, December 5, 2001), Airworthiness Directives; Fokker Rodriguez, Aerospace Engineer, applicable to certain Fokker Model F.28 Model F.28 Mark 0070 and 0100 Series International Branch, ANM–116, FAA, Mark 0100 series airplanes. That AD Airplanes Transport Airplane Directorate, 1601 requires repetitive inspections of certain AGENCY: Federal Aviation Lind Avenue, SW., Renton, Washington main landing gear (MLG) main fittings Administration, DOT. 98055–4056; telephone (425) 227–1137; to detect forging defects, and rework of ACTION: Notice of proposed rulemaking fax (425) 227–1149. the main fittings if necessary. The (NPRM). SUPPLEMENTARY INFORMATION: requirements of that AD are intended to detect forging defects of the MLG main SUMMARY: This document proposes the Comments Invited fittings, which could lead to cracking supersedure of an existing airworthiness Interested persons are invited to and result in significant structural directive (AD), applicable to certain participate in the making of the damage to the airplane and possible Fokker Model F.28 Mark 0100 series proposed rule by submitting such injury to the occupants. airplanes, that currently requires written data, views, or arguments as repetitive inspections of certain main they may desire. Communications shall Actions Since Issuance of Previous AD landing gear (MLG) main fittings to identify the Rules Docket number and Since the issuance of that AD, the detect forging defects, and rework of the be submitted in triplicate to the address airplane manufacturer has advised us main fittings if necessary. This action specified above. All communications that additional airplanes (Model F.28 would require either replacement of received on or before the closing date Mark 0070 series airplanes) may be each MLG with a MLG that has main for comments, specified above, will be equipped with the same Messier-Dowty fittings that have been inspected and considered before taking action on the MLG units that are subject to the reworked, or various one-time proposed rule. The proposals contained identified unsafe condition. inspections of the main fittings and in this action may be changed in light Also, the preamble to AD 2001–24–10 rework if necessary. Either of these of the comments received. specified that we considered the actions would constitute terminating Submit comments using the following requirements ‘‘interim action’’ and that action for the repetitive inspections. format: • the manufacturer was developing This action would also revise the Organize comments issue-by-issue. rework procedures to address the unsafe applicability by adding airplanes. The For example, discuss a request to condition. The manufacturer now has actions specified by the proposed AD change the compliance time and a developed such rework procedures, and are intended to detect forging defects of request to change the service bulletin we have determined that further the MLG main fittings, which could lead reference as two separate issues. rulemaking is indeed necessary; this • For each issue, state what specific to cracking and result in significant proposed AD follows from that change to the proposed AD is being structural damage to the airplane and determination. requested. possible injury to the occupants. This • action is intended to address the Include justification (e.g., reasons or Explanation of Relevant Service identified unsafe condition. data) for each request. Information Comments are specifically invited on DATES: Comments must be received by the overall regulatory, economic, Fokker Services B.V. has issued April 16, 2004. environmental, and energy aspects of Service Bulletin SBF100–32–134, dated ADDRESSES: Submit comments in the proposed rule. All comments March 24, 2003. Part 1 of the service triplicate to the Federal Aviation submitted will be available, both before bulletin describes procedures for Administration (FAA), Transport and after the closing date for comments, removing the MLGs from the airplane; Airplane Directorate, ANM–114, in the Rules Docket for examination by doing a detailed inspection of the MLG Attention: Rules Docket No. 2003–NM– interested persons. A report pintle pins, side stay attachment pins, 162–AD, 1601 Lind Avenue, SW., summarizing each FAA-public contact and MLG retract actuator attachment Renton, Washington 98055–4056. concerned with the substance of this bolts; and installing MLGs with main Comments may be inspected at this proposal will be filed in the Rules fittings that were reworked. location between 9 a.m. and 3 p.m., Docket. Part 2 of Fokker Services B.V. Service Monday through Friday, except Federal Commenters wishing the FAA to Bulletin SBF100–32–134 describes holidays. Comments may be submitted acknowledge receipt of their comments procedures for doing eddy current and via fax to (425) 227–1232. Comments submitted in response to this action etch penetrant inspections on MLG may also be sent via the Internet using must submit a self-addressed, stamped main fittings and identifying MLGs that the following address: 9-anm- postcard on which the following have been inspected. For discrepancies [email protected]. Comments sent statement is made: ‘‘Comments to (e.g., cracking or detected flaws of up to via fax or the Internet must contain Docket Number 2003–NM–162–AD.’’ 50% of the calibration amplitude of the ‘‘Docket No. 2003–NM–162–AD’’ in the The postcard will be date stamped and eddy current flaw detector) found subject line and need not be submitted returned to the commenter. during the inspections, Part 2 also in triplicate. Comments sent via the includes procedures for reworking Internet as attached electronic files must Availability of NPRMs certain discrepancies and contacting the be formatted in Microsoft Word 97 or Any person may obtain a copy of this part manufacturer for discrepancies that 2000 or ASCII text. NPRM by submitting a request to the are outside the permitted rework areas,

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or that cannot be removed within the Differences Among the Proposed AD, AD. Therefore, paragraph (g) and Note 1 limits specified in the service bulletin. Service Bulletins, and Dutch of AD 2001–24–10 are not included in Both Parts 1 and 2 of Service Bulletin Airworthiness Directive this proposed AD. SBF100–32–134 refer to Messier-Dowty The Dutch airworthiness directive Ltd. Service Bulletin F100–32–102, Cost Impact and Fokker Service Bulletin SBF100– including Appendices A, B, and C, There are approximately 70 airplanes 32–134 recommend that the actions dated February 24, 2003, as an of U.S. registry that would be affected which terminate the repetitive additional source of information for by this proposed AD. inspections be accomplished prior to or reworking the main fittings of the MLGs, The repetitive inspections currently doing the eddy current and etch during the next scheduled overhaul of required by AD 2001–24–10 take penetrant inspections, and identifying the affected MLG main fitting. Because approximately 2 work hours per MLGs that have been inspected. overhaul schedules vary among airplane to accomplish, at an average The Civil Aviation Authority—The operators, this proposed AD would labor rate of $65 per work hour. Based Netherlands (CAA–NL), which is the require accomplishment of the on these figures, the cost impact of the airworthiness authority for the terminating actions prior to the currently required actions on U.S. Netherlands, classified Fokker Service accumulation of 16,000 total landings operators is estimated to be $9,100, or Bulletin SBF100–32–134 and Messier- on a new MLG. This compliance time $130 per airplane, per inspection cycle. Dowty Ltd. Service Bulletin F100–32– represents the life limit for the MLG Should an operator rework a MLG per 102 as mandatory and issued Dutch main fitting. Part 1 of Fokker Service Bulletin airworthiness directive 2003–040, dated Operators should note that, although SBF100–32–134, it would take March 31, 2003, to ensure the continued the Dutch airworthiness directive approximately 44 work hours per airworthiness of these airplanes in the describes procedures for reporting airplane at an average labor rate of $65 Netherlands. inspection results to Messier-Dowty and per work hour. Based on these figures, Fokker B.V. Services, this proposed AD the cost impact of the proposed FAA’s Conclusions would not require those actions. modification is estimated to be $2,860 These airplane models are Although Fokker Service Bulletin per airplane. manufactured in the Netherlands and SBF100–32–134 and Messier-Dowty Should an operator do the inspections are type certificated for operation in the Ltd. Service Bulletin F100–32–102 both specified in Messier-Dowty Service United States under the provisions of specify that the parts manufacturer may Bulletin F100–32–102, it would take section 21.29 of the Federal Aviation be contacted for disposition of certain approximately 2 work hours per Regulations (14 CFR 21.29) and the discrepancies, this proposed AD would airplane at an average labor rate of $65 applicable bilateral airworthiness require the repair of those conditions to per work hour. Based on these figures, agreement. Pursuant to this bilateral be accomplished in accordance with a the cost impact of the proposed airworthiness agreement, the CAA–NL method approved by either the FAA or inspections is estimated to be $130 per has kept the FAA informed of the CAA–NL (or its delegated agent). In airplane. situation described above. The FAA has light of the type of repair that would be The cost impact figures discussed examined the findings of the CAA–NL, required to address the identified unsafe above are based on assumptions that no reviewed all available information, and condition, and in consonance with operator has yet accomplished any of determined that AD action is necessary existing bilateral airworthiness the current or proposed requirements of for products of this type design that are agreements, the FAA has determined this AD action, and that no operator certificated for operation in the United that, for this AD, a repair approved by would accomplish those actions in the States. either the FAA or CAA–NL (or its future if this AD were not adopted. The delegated agent) would be acceptable for Explanation of Requirements of cost impact figures discussed in AD compliance with this AD. Proposed AD rulemaking actions represent only the Change to Requirements of Existing AD time necessary to perform the specific Since an unsafe condition has been actions actually required by the AD. identified that is likely to exist or AD 2001–24–10 included a reporting These figures typically do not include develop on other airplanes of the same requirement to enable the manufacturer incidental costs, such as the time type design registered in the United to obtain better insight into the nature, required to gain access and close up, States, the proposed AD would cause, and extent of the cracking, and to planning time, or time necessitated by supersede AD 2001–24–10 to continue develop final action to address the other administrative actions. to require repetitive inspections of unsafe condition. This proposed AD certain MLG main fittings to detect includes such final action; therefore, the Regulatory Impact forging defects, and rework of the main reporting requirement is not included in The regulations proposed herein fittings if necessary. The proposed AD the requirements of this proposed AD. would not have a substantial direct also would require either replacement of effect on the States, on the relationship Changes to 14 CFR Part 39/Effect on the the MLG with a MLG that has main between the national Government and AD fittings that have been inspected and the States, or on the distribution of reworked, or various one-time On July 10, 2002, the FAA issued a power and responsibilities among the inspections of the main fittings, and new version of 14 CFR Part 39 (67 FR various levels of government. Therefore, rework if necessary. Either of these 47997, July 22, 2002), which governs the it is determined that this proposal actions would constitute terminating FAA’s airworthiness directives system. would not have federalism implications action for the repetitive inspections. The regulation now includes material under Executive Order 13132. This action would also revise the that relates to altered products, special For the reasons discussed above, I applicability by adding airplanes. The flight permits, and alternative methods certify that this proposed regulation (1) actions would be required to be of compliance (AMOC). Because we is not a ‘‘significant regulatory action’’ accomplished in accordance with the have now included this material in part under Executive Order 12866; (2) is not service bulletins described previously, 39, only the office authorized to approve a ‘‘significant rule’’ under the DOT except as discussed below. AMOCs is identified in each individual Regulatory Policies and Procedures (44

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FR 11034, February 26, 1979); and (3) if The Proposed Amendment § 39.13 [Amended] promulgated, will not have a significant 2. Section 39.13 is amended by economic impact, positive or negative, Accordingly, pursuant to the authority delegated to me by the removing amendment 39–12527 (66 FR on a substantial number of small entities 63159, December 5, 2001), and by under the criteria of the Regulatory Administrator, the Federal Aviation adding a new airworthiness directive Flexibility Act. A copy of the draft Administration proposes to amend part (AD), to read as follows: regulatory evaluation prepared for this 39 of the Federal Aviation Regulations action is contained in the Rules Docket. (14 CFR part 39) as follows: Fokker Services B.V.: Docket 2003–NM–162– A copy of it may be obtained by AD. Supersedes AD 2001–24–10, contacting the Rules Docket at the PART 39—AIRWORTHINESS Amendment 39–12527. location provided under the caption DIRECTIVES Applicability: Model F.28 Mark 0070 and ADDRESSES. 0100 series airplanes, certificated in any 1. The authority citation for part 39 category, equipped with a Messier-Dowty List of Subjects in 14 CFR Part 39 continues to read as follows: main landing gear (MLG) unit having a part Air transportation, Aircraft, Aviation number (P/N) with a main fitting sub- Authority: 49 U.S.C. 106(g), 40113, 44701. safety, Safety. assembly, as listed in Table 1 of this AD.

TABLE 1.—APPLICABILITY

P/N— Which includes a main fitting sub-assembly P/N—

201072011 ...... 201072283, 201072284, or 201251258 (main fitting P/N 201072383, 201072384, or 201072389) 201072012 ...... 201072283, 201072284, or 201251258 (main fitting P/N 201072383, 201072384, or 201072389) 201072013 ...... 201072283, 201072284, or 201251258 (main fitting P/N 201072383, 201072384, or 201072389) 201072014 ...... 201072283, 201072284, or 201251258 (main fitting P/N 201072383, 201072384, or 201072389) 201072015 ...... 201072283, 201072284, or 201251258 (main fitting P/N 201072383, 201072384, or 201072389) 201072016 ...... 201072283, 201072284, or 201251258 (main fitting P/N 201072383, 201072384, or 201072389)

Compliance: Required as indicated, unless Rework the MLG main fitting per the service accomplish the applicable actions required accomplished previously. bulletin. by paragraph (e)(1) or (e)(2) of this AD. To detect forging defects of the MLG main (2) If any cracking is found that exceeds the (1) If any cracking is found within the fittings, which could lead to cracking and limits specified in Messier-Dowty Ltd. limits specified in Messier-Dowty Ltd. result in significant structural damage to the Service Bulletin F100–32–101, including Service Bulletin F100–32–101, including airplane and possible injury to the occupants, Appendices A and B, dated October 25, 2001: Appendices A and B, dated October 25, 2001: accomplish the following: Rework the MLG main fitting per a method Rework the MLG main fitting per the service approved by the Manager, International bulletin. Restatement of the Requirements of AD Branch, ANM–116, Transport Airplane (2) If any cracking is found that exceeds the 2001–24–10: Initial and Repetitive Directorate, FAA; or the Civil Aviation limits specified in Messier-Dowty Ltd. Inspections Authority—The Netherlands (CAA–NL) (or Service Bulletin F100–32–101, including (a) For Fokker Model F.28 Mark 0100 series its delegated agent). Appendices A and B, dated October 25, 2001: Rework the MLG main fitting per a method airplanes: Before the accumulation of 1,000 Exception to Service Information total landings on a new MLG, or within 30 approved by the Manager, International (c) During any action required by this AD, days after December 20, 2001 (the effective Branch, ANM–116; or the CAA–NL (or its if the service bulletin specifies to contact date of AD 2001–24–10, amendment 39– delegated agent). Messier-Dowty Ltd. for an appropriate action: 12527), whichever occurs later, do an initial Before further flight, repair per a method Terminating Actions eddy current inspection on all MLG main approved by the Manager, International (f) For all airplanes: Before the fittings to detect forging defects, per Messier- Branch, ANM–116; or the CAA–NL (or its accumulation of 16,000 total landings on a Dowty Ltd. Service Bulletin F100–32–101, delegated agent). new MLG, do the actions in paragraph (f)(1) including Appendices A and B, dated or (f)(2) of this AD. Accomplishment of October 25, 2001. After accomplishment of New Actions Required by This AD paragraph (f)(1) or (f)(2) of this AD the initial inspection, repeat the eddy current Initial and Repetitive Inspections constitutes terminating action for the inspection thereafter at intervals not to repetitive inspections required by paragraphs (d) For Fokker Model F.28 Mark 0070 exceed 500 landings or 6 months, whichever (a) and (d) of this AD. series airplanes: Before the accumulation of occurs first, per the service bulletin. (1) Replace the main fitting of the MLG 1,000 total landings on a new MLG, or within Accomplishment of the actions required by with a main fitting that has had a detailed 30 days after the effective date of this AD, paragraph (f) of this AD terminates the inspection to detect forging defects and has whichever occurs later, do an initial eddy repetitive inspections. Although this service been reworked, per paragraph 2.B., Part 1, of current inspection on all MLG main fittings the Accomplishment Instructions of Fokker bulletin specifies to submit certain to detect forging defects, per Messier-Dowty Service Bulletin SBF100–32–134, dated information to the part manufacturer, this AD Ltd. Service Bulletin F100–32–101, including March 24, 2003. Any discrepancy found does not include such a requirement. Appendices A and B, dated October 25, 2001. during the detailed inspection must be Rework After accomplishment of the initial inspection, repeat the inspection thereafter at repaired before further flight per the Fokker (b) For Fokker Model F.28 Mark 0100 intervals not to exceed 500 landings or 6 100 Aircraft Maintenance Manual and series airplanes: After any inspection months, whichever occurs first, per the Messier-Dowty Ltd. Component Maintenance required by paragraph (a) of this AD, before service bulletin. Accomplishment of the Manual 32–11–04; or per a method approved further flight, accomplish the applicable actions required by paragraph (f) of this AD by the Manager, International Branch, ANM– actions required by paragraph (b)(1) or (b)(2) terminates the repetitive inspections. 116, or the CAA–NL (or its delegated agent). of this AD. Note 1: For the purposes of this AD, a (1) If any cracking is found within the Rework detailed inspection is defined as: ‘‘An limits specified in Messier-Dowty Ltd. (e) For Fokker Model F.28 Mark 0070 series intensive visual examination of a specific Service Bulletin F100–32–101, including airplanes: After any inspection required by structural area, system, installation, or Appendices A and B, dated October 25, 2001: paragraph (d) of this AD, before further flight, assembly to detect damage, failure, or

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irregularity. Available lighting is normally SUMMARY: This document proposes the identify the Rules Docket number and supplemented with a direct source of good adoption of a new airworthiness be submitted in triplicate to the address lighting at intensity deemed appropriate by directive (AD) that is applicable to specified above. All communications the inspector. Inspection aids such as mirror, certain BAE Systems (Operations) received on or before the closing date magnifying lenses, etc., may be used. Surface cleaning and elaborate access procedures Limited Model BAe 146 and Avro 146– for comments, specified above, will be may be required.’’ RJ series airplanes equipped with considered before taking action on the Pacific Scientific engine fire proposed rule. The proposals contained Note 2: Fokker Service Bulletin SBF100– extinguisher bottles. This proposal 32–134, dated March 24, 2003, references in this action may be changed in light Messier-Dowty Ltd. Service Bulletin F100– would require a one-time inspection to of the comments received. 32–102, including Appendices A, B, and C, detect discrepancies in the wiring • Submit comments using the dated February 24, 2003, as an additional installation of the engine fire following format: source of service information for reworking extinguisher bottles, and related • Organize comments issue-by-issue. the main fitting of each MLG. investigative/corrective actions as For example, discuss a request to (2) Do eddy current and etch penetrant necessary. This action is necessary to change the compliance time and a inspections, as applicable, to detect forging prevent the inability of the left-hand fire request to change the service bulletin defects; and rework the main fitting of each extinguisher on one or more engines to reference as two separate issues. MLG, as applicable; by accomplishing all of discharge, and consequent inability to • For each issue, state what specific the actions in paragraph 3.C. of the control or suppress an engine fire. This Accomplishment Instructions of Messier- change to the proposed AD is being action is intended to address the requested. Dowty Ltd. Service Bulletin F100–32–102, identified unsafe condition. including Appendices A, B, and C, dated • Include justification (e.g., reasons or February 24, 2003. Do all of the actions per DATES: Comments must be received by data) for each request. the service bulletin. Any rework must be April 16, 2004. Comments are specifically invited on done before further flight. ADDRESSES: Submit comments in the overall regulatory, economic, Parts Installation triplicate to the Federal Aviation environmental, and energy aspects of Administration (FAA), Transport the proposed rule. All comments (g) As of the effective date of this AD, no Airplane Directorate, ANM–114, person may install a MLG, MLG main fitting submitted will be available, both before sub-assembly, or MLG main fitting having a Attention: Rules Docket No. 2002–NM– and after the closing date for comments, P/N listed in Messier-Dowty Ltd. Service 343–AD, 1601 Lind Avenue, SW., in the Rules Docket for examination by Bulletin F100–32–102, including Appendices Renton, Washington 98055–4056. interested persons. A report A, B, and C, dated February 24, 2003, on any Comments may be inspected at this summarizing each FAA-public contact airplane unless the part has been inspected location between 9 a.m. and 3 p.m., concerned with the substance of this and reworked, as applicable, per that service Monday through Friday, except Federal proposal will be filed in the Rules bulletin. holidays. Comments may be submitted Docket. Alternative Methods of Compliance via fax to (425) 227–1232. Comments Commenters wishing the FAA to (h) In accordance with 14 CFR 39.19, the may also be sent via the Internet using acknowledge receipt of their comments Manager, International Branch, ANM–116, is the following address: 9-anm- submitted in response to this action authorized to approve alternative methods of [email protected]. Comments sent must submit a self-addressed, stamped compliance for this AD. via fax or the Internet must contain postcard on which the following Note 3: The subject of this AD is addressed ‘‘Docket No. 2002–NM–343–AD’’ in the statement is made: ‘‘Comments to in Dutch airworthiness directive 2003–040, subject line and need not be submitted Docket Number 2002–NM–343–AD.’’ dated March 31, 2003. in triplicate. Comments sent via the The postcard will be date stamped and Internet as attached electronic files must Issued in Renton, Washington, on March 5, returned to the commenter. 2004. be formatted in Microsoft Word 97 or 2000 or ASCII text. Availability of NPRMs Ali Bahrami, The service information referenced in Acting Manager, Transport Airplane Any person may obtain a copy of this the proposed rule may be obtained from NPRM by submitting a request to the Directorate, Aircraft Certification Service. British Aerospace Regional Aircraft [FR Doc. 04–5943 Filed 3–16–04; 8:45 am] FAA, Transport Airplane Directorate, American Support, 13850 Mclearen ANM–114, Attention: Rules Docket No. BILLING CODE 4910–13–P Road, Herndon, Virginia 20171. This 2002–NM–343–AD, 1601 Lind Avenue, information may be examined at the SW., Renton, Washington 98055–4056. FAA, Transport Airplane Directorate, DEPARTMENT OF TRANSPORTATION 1601 Lind Avenue, SW., Renton, Discussion Federal Aviation Administration Washington. The Civil Aviation Authority (CAA), FOR FURTHER INFORMATION CONTACT: which is the airworthiness authority for 14 CFR Part 39 Todd Thompson, Aerospace Engineer, the United Kingdom, notified the FAA International Branch, ANM–116, FAA, that an unsafe condition may exist on [Docket No. 2002–NM–343–AD] Transport Airplane Directorate, 1601 certain BAE Systems (Operations) RIN 2120–AA64 Lind Avenue, SW., Renton, Washington Limited Model BAe 146 and Avro 146– 98055–4056; telephone (425) 227–1175; RJ series airplanes equipped with Airworthiness Directives; BAE fax (425) 227–1149. Pacific Scientific engine fire Systems (Operations) Limited Model SUPPLEMENTARY INFORMATION: extinguisher bottles. The CAA advises BAe 146 and Avro 146–RJ Series that an operator has reported that it is Airplanes Comments Invited possible to incorrectly wire the left- AGENCY: Federal Aviation Interested persons are invited to hand engine fire extinguisher circuits on Administration, DOT. participate in the making of the each engine. If left undetected, such proposed rule by submitting such incorrect wiring could result in the ACTION: Notice of proposed rulemaking written data, views, or arguments as inability of the left-hand fire (NPRM). they may desire. Communications shall extinguisher on one or more engines to

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discharge, and consequent inability to States, the proposed AD would require Regulatory Impact control or suppress an engine fire. accomplishment of the actions specified The regulations proposed herein Explanation of Relevant Service in the service bulletin described would not have a substantial direct Information previously, except as discussed below. effect on the States, on the relationship between the national Government and BAE Systems (Operations) Limited Differences Between the Service the States, or on the distribution of has issued Inspection Service Bulletin Information and This Proposed AD power and responsibilities among the 26–065, dated September 16, 2002. This various levels of government. Therefore, service bulletin describes procedures for The effectivity of the service bulletin it is determined that this proposal visually inspecting the wiring states that airplanes with BAE Systems would not have federalism implications installation for Pacific Scientific engine (Operations) Limited Modification under Executive Order 13132. fire extinguisher bottles. The procedures HCM01582B installed are exempt from the inspection/test if BAE Systems For the reasons discussed above, I for the visual inspection include a one- certify that this proposed regulation (1) time test of the wiring for the indicating (Operations) Limited Service Bulletin 26–060 (Inspection for Cross Connection is not a ‘‘significant regulatory action’’ system of the engine fire extinguishing under Executive Order 12866; (2) is not system, and related investigative/ of Wiring on Pacific Scientific Fire Extinguishers) has been accomplished a ‘‘significant rule’’ under the DOT corrective actions. The related Regulatory Policies and Procedures (44 on each engine. This information is not investigative action is a function test of FR 11034, February 26, 1979); and (3) if included in the applicability of this the left-hand fire extinguishing and promulgated, will not have a significant proposed AD, but it is included in cartridge firing unit system. The economic impact, positive or negative, paragraph (b) of this proposed AD. function test is necessary only if each on a substantial number of small entities engine does not pass the wiring test for The service bulletin specifies to under the criteria of the Regulatory the indicating system. The function test submit certain information to the Flexibility Act. A copy of the draft includes examining the wiring manufacturer. This proposed AD does regulatory evaluation prepared for this installation to determine if the correct not include such a requirement. action is contained in the Rules Docket. wires are connected to the firing A copy of it may be obtained by Clarification of Requirements cartridge, testing correct loop resistance, contacting the Rules Docket at the and testing for correct voltage. The The British airworthiness directive location provided under the caption corrective actions include disconnecting ADDRESSES. and reconnecting the wiring for the left- requires a test of the left-hand fire hand engine fire extinguishing and extinguisher bottle wiring on all four List of Subjects in 14 CFR Part 39 engines. The Accomplishment cartridge firing unit system per the Air transportation, Aircraft, Aviation Instructions of the service bulletin applicable BAE Systems (Operations) safety, Safety. Limited wiring manual and Drawing 2 specify that the fire bottle wiring test of the service bulletin. Accomplishment includes a visual inspection of the The Proposed Amendment of the actions specified in the service wiring. This proposed AD specifies that Accordingly, pursuant to the bulletin is intended to adequately both a detailed inspection of the fire authority delegated to me by the address the identified unsafe condition. extinguisher bottle wiring and a test of Administrator, the Federal Aviation The CAA classified this service bulletin the left-hand engine fire extinguishing Administration proposes to amend part as mandatory and issued British system will be required. 39 of the Federal Aviation Regulations airworthiness directive 003–09–2002 to Cost Impact (14 CFR part 39) as follows: ensure the continued airworthiness of these airplanes in the United Kingdom. The FAA estimates that 54 airplanes PART 39—AIRWORTHINESS DIRECTIVES FAA’s Conclusions of U.S. registry would be affected by this proposed AD, that it would take 1. The authority citation for part 39 These airplane models are approximately 3 work hours per continues to read as follows: manufactured in the United Kingdom airplane to accomplish the proposed Authority: 49 U.S.C. 106(g), 40113, 44701. and are type certificated for operation in actions, and that the average labor rate the United States under the provisions is $65 per work hour. Based on these § 39.13 [Amended] of section 21.29 of the Federal Aviation figures, the cost impact of the proposed 2. Section 39.13 is amended by Regulations (14 CFR 21.29) and the AD on U.S. operators is estimated to be adding the following new airworthiness applicable bilateral airworthiness $10,530, or $195 per airplane. directive: agreement. Pursuant to this bilateral airworthiness agreement, the CAA has The cost impact figure discussed BAE Systems (Operations) Limited above is based on assumptions that no (Formerly British Aerospace Regional kept the FAA informed of the situation Aircraft): Docket 2002–NM–343–AD. described above. The FAA has operator has yet accomplished any of Applicability: Model BAe 146 and Avro examined the findings of the CAA, the proposed requirements of this AD action, and that no operator would 146–RJ series airplanes, equipped with reviewed all available information, and Pacific Scientific engine fire extinguisher determined that AD action is necessary accomplish those actions in the future if bottles, and having BAE Systems for products of this type design that are this AD were not adopted. The cost (Operations) Limited Modification certificated for operation in the United impact figures discussed in AD HCM01688A, and either HCM01582A or States. rulemaking actions represent only the HCM01582B installed; certificated in any time necessary to perform the specific category; Explanation of Requirements of actions actually required by the AD. Compliance: Required as indicated, unless Proposed AD These figures typically do not include accomplished previously. To prevent the inability of the left-hand Since an unsafe condition has been incidental costs, such as the time fire extinguisher bottle on one or more identified that is likely to exist or required to gain access and close up, engines to discharge, and consequent develop on other airplanes of the same planning time, or time necessitated by inability to control or suppress an engine fire, type design registered in the United other administrative actions. accomplish the following:

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Inspection, Test, and Related Investigative/ DEPARTMENT OF TRANSPORTATION ville, Montreal, Quebec H3C 3G9, Corrective Actions Canada. This information may be (a) Within 6 months after the effective date Federal Aviation Administration examined at the FAA, Transport of this AD: Do a one-time detailed inspection Airplane Directorate, 1601 Lind to detect discrepancies in the wiring 14 CFR Part 39 Avenue, SW., Renton, Washington; or at installation of the fire extinguisher bottles for [Docket No. 2003–NM–149–AD] the FAA, New York Aircraft the engines, a one-time test of the wiring for Certification Office, 1600 Stewart the indicating system of the engine fire RIN 2120–AA64 Avenue, suite 410, Westbury, New York. extinguishing system, and all applicable Airworthiness Directives; Bombardier FOR FURTHER INFORMATION CONTACT: related investigative/corrective actions, per Model CL–600–2B19 (Regional Jet Serge Napoleon, Aerospace Engineer, the Accomplishment Instructions of BAE Airframe and Propulsion Branch, ANE– Systems (Operations) Limited Inspection Series 100 & 440) Airplanes 171, FAA, New York Aircraft Service Bulletin ISB.26–065, dated AGENCY: Federal Aviation Certification Office, 1600 Stewart September 16, 2002. Do all of the actions per Administration, DOT. Avenue, suite 410, Westbury, New York the service bulletin. Any corrective actions ACTION: Notice of proposed rulemaking 11590; telephone (516) 228–7312; fax must be done before further flight. Although (NPRM). the service bulletin specifies to submit (516) 794–5531. certain information to the manufacturer, this SUMMARY: This document proposes the SUPPLEMENTARY INFORMATION: AD does not include such a requirement. adoption of a new airworthiness Comments Invited Note 1: For the purposes of this AD, a directive (AD) that is applicable to detailed inspection is defined as: ‘‘An certain Bombardier Model CL–600– Interested persons are invited to intensive visual examination of a specific 2B19 (Regional Jet Series 100 & 440) participate in the making of the structural area, system, installation, or airplanes. This proposal would require proposed rule by submitting such assembly to detect damage, failure, or repetitive detailed and eddy current written data, views, or arguments as irregularity. Available lighting is normally inspections on the main fittings of the they may desire. Communications shall supplemented with a direct source of good main landing gears (MLG) to detect identify the Rules Docket number and lighting at intensity deemed appropriate by discrepancies, and related investigative/ be submitted in triplicate to the address the inspector. Inspection aids such as mirror, corrective actions if necessary. This specified above. All communications magnifying lenses, etc., may be used. Surface proposal also would require servicing received on or before the closing date cleaning and elaborate access procedures the shock strut of the MLGs; inspecting for comments, specified above, will be may be required.’’ the shock strut of the MLGs for nitrogen considered before taking action on the pressure, visible chrome dimension, and proposed rule. The proposals contained Credit for Actions Done Per Other Service oil leakage; and servicing any discrepant in this action may be changed in light Information strut. This action is necessary to detect of the comments received. (b) For airplanes with BAE Systems and correct premature cracking of the Submit comments using the following (Operations) Limited Modification main fittings of the MLGs, which could format: HCM01582B installed: Accomplishment of result in failure of the fittings and • Organize comments issue-by-issue. BAE Systems (Operations) Limited Service consequent collapse of the MLGs during Bulletin 26–060 (Inspection for Cross For example, discuss a request to landing. This action is intended to change the compliance time and a Connection of Wiring on Pacific Scientific address the identified unsafe condition. Fire Extinguishers) on each engine is request to change the service bulletin DATES: considered acceptable for compliance with Comments must be received by reference as two separate issues. April 17, 2004. the requirements of this AD. • For each issue, state what specific ADDRESSES: Submit comments in Alternative Methods of Compliance change to the proposed AD is being triplicate to the Federal Aviation requested. (c) In accordance with 14 CFR 39.19, the Administration (FAA), Transport • Include justification (e.g., reasons or Manager, International Branch, ANM–116, Airplane Directorate, ANM–114, data) for each request. FAA, Transport Airplane Directorate, is Attention: Rules Docket No. 2003–NM– authorized to approve alternative methods of 149–AD, 1601 Lind Avenue, SW., Comments are specifically invited on compliance for this AD. Renton, Washington 98055–4056. the overall regulatory, economic, Note 2: The subject of this AD is addressed Comments may be inspected at this environmental, and energy aspects of in British airworthiness directive 003–09– location between 9 a.m. and 3 p.m., the proposed rule. All comments 2002. Monday through Friday, except Federal submitted will be available, both before holidays. Comments may be submitted and after the closing date for comments, Issued in Renton, Washington, on March 5, via fax to (425) 227–1232. Comments in the Rules Docket for examination by 2004. may also be sent via the Internet using interested persons. A report Ali Bahrami, the following address: 9-anm- summarizing each FAA-public contact Acting Manager, Transport Airplane [email protected]. Comments sent concerned with the substance of this Directorate, Aircraft Certification Service. via fax or the Internet must contain proposal will be filed in the Rules [FR Doc. 04–5944 Filed 3–16–04; 8:45 am] ‘‘Docket No. 2003–NM–149–AD’’ in the Docket. BILLING CODE 4910–13–P subject line and need not be submitted Commenters wishing the FAA to in triplicate. Comments sent via the acknowledge receipt of their comments Internet as attached electronic files must submitted in response to this action be formatted in Microsoft Word 97 or must submit a self-addressed, stamped 2000 or ASCII text. postcard on which the following The service information referenced in statement is made: ‘‘Comments to the proposed rule may be obtained from Docket Number 2003–NM–149–AD.’’ Bombardier, Inc., Canadair, Aerospace The postcard will be date stamped and Group, P.O. Box 6087, Station Centre- returned to the commenter.

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Availability of NPRMs airworthiness directive CF–2003–09, actions actually required by the AD. Any person may obtain a copy of this effective June 6, 2003, to ensure the These figures typically do not include NPRM by submitting a request to the continued airworthiness of these incidental costs, such as the time FAA, Transport Airplane Directorate, airplanes in Canada. required to gain access and close up, planning time, or time necessitated by ANM–114, Attention: Rules Docket No. FAA’s Conclusions other administrative actions. 2003–NM–149–AD, 1601 Lind Avenue, This airplane model is manufactured SW., Renton, Washington 98055–4056. Manufacturer warranty remedies may be in Canada and is type certificated for available for certain labor costs Discussion operation in the United States under the associated with this proposed AD. As a provisions of section 21.29 of the Transport Canada Civil Aviation result, the costs attributable to the Federal Aviation Regulations (14 CFR (TCCA), which is the airworthiness proposed AD may be less than stated 21.29) and the applicable bilateral authority for Canada, notified the FAA above. airworthiness agreement. Pursuant to that an unsafe condition may exist on this bilateral airworthiness agreement, Regulatory Impact certain Bombardier Model CL–600– TCCA has kept the FAA informed of the 2B19 (Regional Jet Series 100 & 440) The regulations proposed herein situation described above. The FAA has airplanes. TCCA advises that the results would not have a substantial direct examined the findings of TCCA, of a stress analysis revealed that certain effect on the States, on the relationship reviewed all available information, and main fittings of the main landing gears between the national government and determined that AD action is necessary (MLG) are susceptible to premature the States, or on the distribution of for products of this type design that are cracking, starting in the radius of the power and responsibilities among the certificated for operation in the United upper lug. This condition, if not various levels of government. Therefore, States. corrected, could result in failure of the it is determined that this proposal main fittings of the MLGs and Explanation of Requirements of would not have federalism implications consequent collapse of the MLGs during Proposed Rule under Executive Order 13132. For the reasons discussed above, I landing. Since an unsafe condition has been certify that this proposed regulation (1) identified that is likely to exist or Explanation of Relevant Service is not a ‘‘significant regulatory action’’ develop on other airplanes of the same Information under Executive Order 12866; (2) is not type design registered in the United a ‘‘significant rule’’ under the DOT Bombardier has issued Alert Service States, the proposed AD would require Regulatory Policies and Procedures (44 Bulletin A601R–32–088, including accomplishment of the actions specified FR 11034, February 26, 1979); and (3) if Appendices A, B, and C, dated February in the service bulletin described promulgated, will not have a significant 20, 2003, which describes, among other previously, except as discussed below. actions, the following procedures: economic impact, positive or negative, • Performing repetitive detailed Difference Between Proposed Rule and on a substantial number of small entities inspections on the main fittings of the Canadian Airworthiness Directive/ under the criteria of the Regulatory MLGs to detect discrepancies (e.g., Service Bulletin Flexibility Act. A copy of the draft linear paint cracks or lack of paint Operators should note that, although regulatory evaluation prepared for this (paint peeling), any other paint damage, the Accomplishment Instructions of the action is contained in the Rules Docket. adhesion, paint bulging, or corrosion), referenced service bulletin describe A copy of it may be obtained by and related investigative/corrective procedures for submitting a comment contacting the Rules Docket at the actions if necessary. The related sheet related to service bulletin quality location provided under the caption investigative actions include either an and a sheet recording compliance to the ADDRESSES. eddy current or fluorescent penetrant airplane manufacturer bulletin, this List of Subjects in 14 CFR Part 39 inspection of the main fittings of the proposed AD would not require those MLGs for discrepancies. The corrective actions. The FAA does not need this Air transportation, Aircraft, Aviation action includes replacing the MLGs or information from operators. safety, Safety. main fittings of the MLGs with new The Proposed Amendment parts and repainting, repairing, and/or Cost Impact reworking any paint damage; as The FAA estimates that 288 airplanes Accordingly, pursuant to the applicable. of U.S. registry would be affected by this authority delegated to me by the • Performing repetitive eddy current proposed AD, that it would take Administrator, the Federal Aviation inspections on the main fittings of the approximately 4 work hours per Administration proposes to amend part MLGs to detect cracks, and replacement airplane to accomplish the proposed 39 of the Federal Aviation Regulations of the main fittings of the MLGs with actions, and that the average labor rate (14 CFR part 39) as follows: new or serviceable fittings if necessary. is $65 per work hour. Based on these • Servicing the shock strut of the figures, the cost impact of the proposed PART 39—AIRWORTHINESS MLGs. AD on U.S. operators is estimated to be DIRECTIVES • Inspecting the shock strut of the $74,880, or $260 per airplane. MLGs for nitrogen pressure, visible The cost impact figure discussed 1. The authority citation for part 39 chrome dimension, and oil leakage, and above is based on assumptions that no continues to read as follows: servicing the affected shock strut of the operator has yet accomplished any of Authority: 49 U.S.C. 106(g), 40113, 44701. MLGs if necessary. the proposed requirements of this AD § 39.13 [Amended] Accomplishment of the actions action, and that no operator would specified in the service bulletin is accomplish those actions in the future if 2. Section 39.13 is amended by intended to adequately address the this AD were not adopted. The cost adding the following new airworthiness identified unsafe condition. TCCA impact figures discussed in AD directive: classified this service bulletin as rulemaking actions represent only the Bombardier, Inc. (Formerly Canadair): mandatory and issued Canadian time necessary to perform the specific Docket 2003–NM–149–AD.

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Applicability: Model CL–600–2B19 affected main fittings of the MLGs with new alternative methods of compliance for this (Regional Jet Series 100 & 440) airplanes, or serviceable fittings in accordance with AD. equipped with main fittings, part numbers paragraph E.(5) of Part B of the Note 3: The subject of this AD is addressed (P/N) 601R85001–81 and 601R85001–82 Accomplishment Instructions of service in Canadian airworthiness directive CF– (Messier Dowty Incorporated P/N 17064–105 bulletin. 2003–09, dated April 23, 2003. and 17064–106), of the main landing gears (MLG); certificated in any category. Servicing of Shock Struts and Serving If Issued in Renton, Washington, on March 5, Compliance: Required as indicated, unless Necessary 2004. accomplished previously. (d) Before the accumulation of 2,500 total Ali Bahrami, To detect and correct premature cracking flight cycles on the MLGs, or within 500 Acting Manager, Transport Airplane of the main fittings of the MLGs, which could flight cycles after the effective date of this Directorate, Aircraft Certification Service. result in failure of the fittings and consequent AD, whichever occurs later, service the shock [FR Doc. 04–5947 Filed 3–16–04; 8:45 am] collapse of the MLGs during landing, strut of the MLGs in accordance with Part C accomplish the following: or D, as applicable, of the Accomplishment BILLING CODE 4910–13–P Note 1: Where this AD differs from the Instructions of Bombardier ASB A601R–32– referenced service bulletin, the AD prevails. 088, including Appendix B, dated February 20, 2003. DEPARTMENT OF TRANSPORTATION Detailed Inspection of Main Fittings of the MLGs Shock Strut Inspection Federal Aviation Administration (a) Before the accumulation of 2,500 total (e) Within 500 flight cycles after flight cycles on the MLGs, or within 250 completing the servicing required by 14 CFR Part 39 flight cycles after the effective date of this paragraph (d) of this AD, inspect the shock [Docket No. 2002–NM–301–AD] AD, whichever occurs later, do a detailed strut of the MLGs for nitrogen pressure, inspection on the main fittings of the MLGs visible chrome dimension, and oil leakage in RIN 2120–AA64 to detect discrepancies (i.e., linear paint accordance with Part E of the cracks or lack of paint (paint peeling), any Accomplishment Instructions of Bombardier Airworthiness Directives; Aerospatiale other paint damage, adhesion, paint bulging, ASB A601R–32–088, including Appendix B, Model ATR42–500 and ATR72–212A or corrosion), in accordance with Part A of dated February 20, 2003. Repeat the Series Airplanes the Accomplishment Instructions of inspection thereafter at intervals not to Bombardier Alert Service Bulletin (ASB) exceed 500 flight cycles. If the nitrogen AGENCY: Federal Aviation A601R–32–088, dated February 20, 2003. pressure and visible chrome dimensions are Administration, DOT. Repeat the inspection thereafter at intervals found outside the limits (the service bulletin ACTION: not to exceed 100 flight cycles. refers to the airplane maintenance manual as Notice of proposed rulemaking (NPRM). Note 2: For the purposes of this AD, a the source of defined limits) and/or oil leakage is found, before further flight, service detailed inspection is defined as: ‘‘An SUMMARY: This document proposes the the affected shock strut of the MLGs in intensive visual examination of a specific adoption of a new airworthiness structural area, system, installation, or accordance with Part C or D, as applicable, assembly to detect damage, failure, or of the Accomplishment Instructions of the directive (AD) that is applicable to irregularity. Available lighting is normally service bulletin. certain Aerospatiale Model ATR42–500 and ATR72–212A series airplanes. This supplemented with a direct source of good Reporting lighting at intensity deemed appropriate by proposal would require repetitive the inspector. Inspection aids such as mirror, (f) Submit a report of all findings (both inspections for cracking of the upper magnifying lenses, etc., may be used. Surface positive and negative) after each inspection closing rib of the vertical fin, related cleaning and elaborate access procedures and servicing required by this AD to investigative actions, and corrective may be required.’’ Bombardier Aerospace, In-Service Engineering, attention Jean Gauthier, fax actions if necessary. This action is Related Investigative/Corrective Actions (524) 855–7708, e-mail necessary to prevent interference (b) If any discrepancy is detected during [email protected], at the between the upper closing rib and the any inspection required by paragraph (a) of applicable time specified in paragraph (f)(1) rudder, which could result in a rudder this AD, before further flight, do the related or (f)(2) of this AD. Under the provisions of jam and consequent reduced investigative/corrective actions in accordance the Paperwork Reduction Act of 1980 (44 controllability of the airplane. This with Part B or F of the Accomplishment U.S.C. 3501 et seq.), the Office of action is intended to address the Instructions of Bombardier ASB A601R–32– Management and Budget (OMB) has identified unsafe condition. approved the information collection 088, including Appendices A and C, dated DATES: Comments must be received by February 20, 2003. If an eddy current requirements contained in this AD and has inspection (a related investigative action assigned OMB Control Number 2120–0056. April 16, 2004. specified in Part B) is used to confirm the (1) If any inspection or servicing is done ADDRESSES: Submit comments in detailed inspection findings, the next eddy after the effective date of this AD: Submit the triplicate to the Federal Aviation current required by paragraph (c) of this AD report within 30 days after the applicable Administration (FAA), Transport must be conducted within 500 flight cycles inspection or servicing. Airplane Directorate, ANM–114, after the eddy current inspection specified in (2) If any inspection or servicing was Attention: Rules Docket No. 2002–NM– accomplished before the effective date of this this paragraph, and thereafter at intervals not 301–AD, 1601 Lind Avenue, SW., to exceed 500 flight cycles. AD: Submit the report within 30 days after the effective date of this AD. Renton, Washington 98055–4056. Eddy Current Inspection of Main Fittings of (g) Although the Accomplishment Comments may be inspected at this the MLGs Instructions of the service bulletin referenced location between 9 a.m. and 3 p.m., (c) At the time specified in paragraph (a) in this AD specifies to submit a comment Monday through Friday, except Federal of this AD, do an eddy current inspection on sheet related to service bulletin quality and holidays. Comments may be submitted the main fittings of the MLGs to detect cracks a sheet recording compliance to the airplane via fax to (425) 227–1232. Comments in accordance with Part B of the manufacturer bulletin, this AD does not may also be sent via the Internet using Accomplishment Instructions of Bombardier include such a requirement the following address: 9-anm- ASB A601R–32–088, including Appendix A, dated February 20, 2003. Repeat the eddy Alternative Methods of Compliance [email protected]. Comments sent current inspection thereafter at intervals not (h) In accordance with 14 CFR 39.19, the via fax or the Internet must contain to exceed 500 flight cycles. If any crack is Manager, New York Aircraft Certification ‘‘Docket No. 2002–NM–301–AD’’ in the found, before further flight, replace the Office, FAA, is authorized to approve subject line and need not be submitted

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in triplicate. Comments sent via the The postcard will be date stamped and • Performing an internal detailed Internet as attached electronic files must returned to the commenter. visual inspection of the fin tip closure be formatted in Microsoft Word 97 or rib in the area of the fairing, to detect Availability of NPRMs 2000 or ASCII text. and determine the extent of any Any person may obtain a copy of this The service information referenced in cracking. NPRM by submitting a request to the • Performing a measurement of the the proposed rule may be obtained from FAA, Transport Airplane Directorate, fin tip closure rib position. Aerospatiale, 316 Route de Bayonne, ANM–114, Attention: Rules Docket No. • Performing an additional 31060 Toulouse, Cedex 03, France. This 2002–NM–301–AD, 1601 Lind Avenue, measurement of the planarity of the fin information may be examined at the SW., Renton, Washington 98055–4056. tip closure rib. FAA, Transport Airplane Directorate, • Contacting the manufacturer for Discussion 1601 Lind Avenue, SW., Renton, repair information. Washington. ´ The Direction Gen´ erale de l’Aviation Accomplishment of the actions FOR FURTHER INFORMATION CONTACT: Dan Civile (DGAC), which is the specified in the applicable service Rodina, Aerospace Engineer, airworthiness authority for France, bulletin is intended to adequately International Branch, ANM–116, FAA, notified the FAA that an unsafe address the identified unsafe condition. Transport Airplane Directorate, 1601 condition may exist on certain The DGAC classified these service Lind Avenue, SW., Renton, Washington Aerospatiale Model ATR42–500 and bulletins as mandatory and issued 98055–4056; telephone (425) 227–2125; ATR72–212A series airplanes. The French airworthiness directive 2002– fax (425) 227–1149. DGAC advises that rudder operation 506(B) R1, dated December 24, 2002, to difficulties occurred on a Model SUPPLEMENTARY INFORMATION: ensure the continued airworthiness of ATR42–500 series airplane while the these airplanes in France. Comments Invited airplane was on the ground. Investigation revealed interference FAA’s Conclusions Interested persons are invited to between the rudder and the upper participate in the making of the These airplane models are closing rib of the vertical fin. This proposed rule by submitting such manufactured in France and are type interference was subsequently attributed written data, views, or arguments as certificated for operation in the United to failure of parts of the upper closing they may desire. Communications shall States under the provisions of section rib of the vertical fin due to fatigue identify the Rules Docket number and 21.29 of the Federal Aviation cracking induced by installation stress. be submitted in triplicate to the address Regulations (14 CFR 21.29) and the This condition, if not corrected, could specified above. All communications applicable bilateral airworthiness result in a rudder jam and consequent received on or before the closing date agreement. Pursuant to this bilateral reduced controllability of the airplane. airworthiness agreement, the DGAC has for comments, specified above, will be The subject area on certain Model considered before taking action on the kept the FAA informed of the situation ATR72–212A series airplanes is almost described above. The FAA has proposed rule. The proposals contained identical to that on the affected Model in this action may be changed in light examined the findings of the DGAC, ATR42–500 series airplanes. Therefore, reviewed all available information, and of the comments received. those Model ATR72–212A series Submit comments using the following determined that AD action is necessary airplanes may be subject to the unsafe for products of this type design that are format: condition revealed on the Model • certificated for operation in the United Organize comments issue-by-issue. ATR42–500 series airplanes. States. For example, discuss a request to change the compliance time and a Explanation of Relevant Service Explanation of Requirements of request to change the service bulletin Information Proposed AD reference as two separate issues. Aerospatiale has issued Avions de Since an unsafe condition has been • For each issue, state what specific Transport Regional Service Bulletin identified that is likely to exist or change to the proposed AD is being ATR42–55–0011, dated September 26, develop on other airplanes of the same requested. 2002 (for Model ATR42–500 series type design registered in the United • Include justification (e.g., reasons or airplanes); and Avions de Transport States, the proposed AD would require data) for each request. Regional Service Bulletin ATR72–55– accomplishment of the actions specified Comments are specifically invited on 1003, Revision 1, dated November 13, in the service bulletin described the overall regulatory, economic, 2002 (for Model ATR72–212A series previously, except as discussed below. environmental, and energy aspects of airplanes). These service bulletins the proposed rule. All comments describe procedures for repetitive Differences Between Proposed AD and submitted will be available, both before detailed visual inspections for cracking Service Bulletins and after the closing date for comments, of the upper closing rib of the vertical Although the service bulletins specify in the Rules Docket for examination by fin, and related investigative actions. that operators may contact the interested persons. A report The related investigative actions manufacturer for disposition of certain summarizing each FAA-public contact involve measuring the planarity of the repair conditions, this proposed AD concerned with the substance of this upper closing rib and measuring the gap would require operators to repair those proposal will be filed in the Rules between the rudder horn and the upper conditions per a method approved by Docket. closing rib of the vertical fin. If any either the FAA or the DGAC (or its Commenters wishing the FAA to crack, wave, or anomaly is found, or if delegated agent). In light of the type of acknowledge receipt of their comments any measurement is outside the limits repair that would be required to address submitted in response to this action specified in the service bulletin, the the unsafe condition, and consistent must submit a self-addressed, stamped service bulletin specifies further actions, with existing bilateral airworthiness postcard on which the following which include: agreements, we have determined that, statement is made: ‘‘Comments to • Removing the fairing of the vertical for this proposed AD, a repair approved Docket Number 2002–NM–301–AD.’’ fin. by either the FAA or the DGAC would

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be acceptable for compliance with this Regulatory Policies and Procedures (44 (2) Where the service bulletins specify to proposed AD. FR 11034, February 26, 1979); and (3) if report inspection results to the manufacturer, Operators should note that, although promulgated, will not have a significant this AD does not require such reporting. the Accomplishment Instructions of the economic impact, positive or negative, Repetitive Inspections referenced service bulletins describe on a substantial number of small entities (b) Within 500 flight hours after the procedures for submitting inspection under the criteria of the Regulatory effective date of this AD: Perform a detailed results to the manufacturer, this Flexibility Act. A copy of the draft inspection for cracking of the upper closing proposed AD would not require that regulatory evaluation prepared for this rib of the vertical fin, per the action. action is contained in the Rules Docket. Accomplishment Instructions of the applicable service bulletin. Repeat this Interim Action A copy of it may be obtained by contacting the Rules Docket at the inspection thereafter at intervals not to We consider this proposed AD location provided under the caption exceed 500 flight hours. interim action. If final action is later ADDRESSES. Note 1: For the purposes of this AD, a identified, we may consider further detailed inspection is defined as: ‘‘An rulemaking then. List of Subjects in 14 CFR Part 39 intensive visual examination of a specific structural area, system, installation, or Cost Impact Air transportation, Aircraft, Aviation safety, Safety. assembly to detect damage, failure, or The FAA estimates that 2 Model irregularity. Available lighting is normally ATR42–500 series airplanes of U.S. The Proposed Amendment supplemented with a direct source of good registry would be affected by this Accordingly, pursuant to the lighting at intensity deemed appropriate by the inspector. Inspection aids such as mirror, proposed AD, that it would take authority delegated to me by the magnifying lenses, etc., may be used. Surface approximately 2 work hours per Administrator, the Federal Aviation cleaning and elaborate access procedures airplane to accomplish the proposed Administration proposes to amend part may be required.’’ actions, and that the average labor rate 39 of the Federal Aviation Regulations is $65 per work hour. Based on these (14 CFR part 39) as follows: Note 2: There is no terminating action available at this time for the repetitive figures, the cost impact of the proposed PART 39—AIRWORTHINESS inspections required by paragraph (b) of this AD on U.S. operators is estimated to be AD. $260, or $130 per airplane. DIRECTIVES Currently, there are no affected Model 1. The authority citation for part 39 One-Time Follow-On Inspections ATR72–212A series airplanes on the continues to read as follows: (c) Before further flight following the initial U.S. Register. However, if an affected detailed inspection for cracking required by airplane is imported and placed on the Authority: 49 U.S.C. 106(g), 40113, 44701. paragraph (b) of this AD, measure the U.S. Register in the future, it would be § 39.13 [Amended] planarity of the upper closing rib and measure the gap between the rudder horn subject to the same per-airplane cost 2. Section 39.13 is amended by specified above for the Model ATR42– and the upper closing rib of the vertical fin; adding the following new airworthiness per paragraphs 2.C.(2) and 2.C.(3) of the 500 series airplanes. directive: The cost impact figures discussed Accomplishment Instructions of the above are based on assumptions that no Aerospatiale: Docket 2002–NM–301–AD. applicable service bulletin. operator has yet accomplished any of Applicability: Model ATR42–500 and Repair ATR72–212A series airplanes; certificated in the proposed requirements of this AD (d) If any crack is found during any action, and that no operator would any category; on which Aerospatiale Modification 4440 has been accomplished; inspection required by paragraph (b) of this accomplish those actions in the future if except those Model ATR42–500 series AD; or if any wave, anomaly, or measurement this AD were not adopted. The cost airplanes having serial numbers (S/Ns) 618 is found that is outside the limits specified impact figures discussed in AD and subsequent; and except those Model in the applicable service bulletin: Before rulemaking actions represent only the ATR72–212A series airplanes having S/Ns further flight, do all applicable actions in and time necessary to perform the specific 682, 683, 684, 687, and 694 and subsequent. per paragraph 2.C.(4) of the applicable service bulletin; except, where the applicable actions actually required by the AD. Compliance: Required as indicated, unless service bulletin says to contact the These figures typically do not include accomplished previously. To prevent interference between the upper manufacturer for an approved repair incidental costs, such as the time closing rib and the rudder, which could solution, repair per a method approved by required to gain access and close up, result in a rudder jam and consequent either the Manager, International Branch, planning time, or time necessitated by reduced controllability of the airplane, ANM–116, FAA, Transport Airplane other administrative actions. accomplish the following: Directorate; or the Direction Generale de l’Aviation Civile (or its delegated agent). Regulatory Impact Service Bulletin References Alternative Methods of Compliance The regulations proposed herein (a) The term ‘‘service bulletin,’’ as used in would not have a substantial direct this AD, means the Accomplishment (e) In accordance with 14 CFR 39.19, the Instructions of Avions de Transport Regional effect on the States, on the relationship Manager, International Branch, ANM–116, is Service Bulletin ATR42–55–0011, dated authorized to approve alternative methods of between the national Government and September 26, 2002 (for Model ATR42–500 compliance for this AD. the States, or on the distribution of series airplanes); and Avions de Transport Note 3: The subject of this AD is addressed power and responsibilities among the Regional Service Bulletin ATR72–55–1003, in French airworthiness directive 2002– various levels of government. Therefore, Revision 1, dated November 13, 2002 (for 506(B) R1, dated December 24, 2002. it is determined that this proposal Model ATR72–212A series airplanes); as would not have federalism implications applicable. Issued in Renton, Washington, on March 5, under Executive Order 13132. (1) For Model ATR72–212A series 2004. For the reasons discussed above, I airplanes: Actions accomplished before the Ali Bahrami, effective date of this AD per Avions de Acting Manager, Transport Airplane certify that this proposed regulation (1) Transport Regional Service Bulletin ATR72– Directorate, Aircraft Certification Service. is not a ‘‘significant regulatory action’’ 55–1003, dated October 11, 2002, are under Executive Order 12866; (2) is not acceptable for compliance with the [FR Doc. 04–5946 Filed 3–16–04; 8:45 am] a ‘‘significant rule’’ under the DOT corresponding actions required by this AD. BILLING CODE 4910–13–P

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DEPARTMENT OF TRANSPORTATION FAA, Transport Airplane Directorate, Discussion 1601 Lind Avenue, SW., Renton, The Civil Aviation Authority (CAA), Federal Aviation Administration Washington. which is the airworthiness authority for 14 CFR Part 39 FOR FURTHER INFORMATION CONTACT: the United Kingdom, notified the FAA Todd Thompson, Aerospace Engineer, that an unsafe condition may exist on [Docket No. 2003–NM–171–AD] International Branch, ANM–116, FAA, certain BAE Systems (Operations) RIN 2120–AA64 Transport Airplane Directorate, 1601 Limited Model BAe 146 series airplanes. Lind Avenue, SW., Renton, Washington The CAA advises that it received reports Airworthiness Directives; BAE 98055–4056; telephone (425) 227–1175; of in-line splices in the auxiliary power Systems (Operations) Limited Model fax (425) 227–1149. unit (APU) feeder cables being damaged BAe 146 Series Airplanes SUPPLEMENTARY INFORMATION: Comments by overheating. The CAA considers that splices in the integrated drive generator AGENCY: Invited Federal Aviation (IDG) feeder cables could also be subject Administration, DOT. Interested persons are invited to participate in the making of the to overheating. Poor joint splicing of ACTION: Notice of proposed rulemaking electrical cables can lead to overheating (NPRM). proposed rule by submitting such written data, views, or arguments as that involves conductor melting. These SUMMARY: This document proposes the they may desire. Communications shall failures can result in open APU adoption of a new airworthiness identify the Rules Docket number and generator or IDG circuits, followed by directive (AD) that is applicable to be submitted in triplicate to the address the associated generator tripping off- certain BAE Systems (Operations) specified above. All communications line. Overheating of the in-line splices Limited Model BAe 146 series airplanes. received on or before the closing date of the APU or IDG feeder cables, if not This proposal would require repetitive for comments, specified above, will be corrected, can lead to smoke, fumes, and detailed inspections for heat damage to considered before taking action on the possible fire in the flight deck and any in-line splice in the auxiliary power proposed rule. The proposals contained cabin. unit (APU) and integrated drive in this action may be changed in light Explanation of Relevant Service generator (IDG) feeder cable circuits, of the comments received. Information and corrective action if necessary. This Submit comments using the following proposed AD also would provide for format: BAE Systems (Operations) Limited has issued Inspection Service Bulletin optional terminating action for the • Organize comments issue-by-issue. ISB.24–139, dated April 2, 2003, which repetitive inspections. This action is For example, discuss a request to describes procedures for repetitive necessary to prevent overheating of the change the compliance time and a detailed inspections for heat damage to in-line splices of the APU and IDG request to change the service bulletin any in-line splice in the APU and IDG feeder cables, which can lead to smoke, reference as two separate issues. feeder cable circuits, and corrective fumes, and possible fire in the flight • For each issue, state what specific deck and cabin. This action is intended action if necessary. The service bulletin change to the proposed AD is being refers to additional service bulletins for to address the identified unsafe requested. condition. • corrective and terminating actions, as Include justification (e.g., reasons or follows: DATES: Comments must be received by data) for each request. • April 16, 2004. Comments are specifically invited on BAE Systems (Operations) Limited Modification Service Bulletin SB.24– ADDRESSES: Submit comments in the overall regulatory, economic, triplicate to the Federal Aviation environmental, and energy aspects of 82–36097A&B, Revision No. 2, dated Administration (FAA), Transport the proposed rule. All comments September 23, 1992, which describes Airplane Directorate, ANM–114, submitted will be available, both before procedures for modification of the APU Attention: Rules Docket No. 2003–NM– and after the closing date for comments, feeders involving installation of an 171–AD, 1601 Lind Avenue, SW., in the Rules Docket for examination by improved splice, and installation of Renton, Washington 98055–4056. interested persons. A report continuous size 6 cables without Comments may be inspected at this summarizing each FAA–public contact splices. • location between 9 a.m. and 3 p.m., concerned with the substance of this BAE Systems (Operations) Limited Monday through Friday, except Federal proposal will be filed in the Rules Modification Service Bulletin SB.24– holidays. Comments may be submitted Docket. 85–01253A, Revision No. 1, dated via fax to (425) 227–1232. Comments Commenters wishing the FAA to March 15, 1991, which describes may also be sent via the Internet using acknowledge receipt of their comments procedures for modification of the IDG the following address: 9-anm- submitted in response to this action feeders involving installation of an [email protected]. Comments sent must submit a self-addressed, stamped improved splice. via fax or the Internet must contain postcard on which the following • BAE Systems (Operations) Limited ‘‘Docket No. 2003–NM–171–AD’’ in the statement is made: ‘‘Comments to Modification Service Bulletin SB.24– subject line and need not be submitted Docket Number 2003–NM–171–AD.’’ 98–01253B, dated October 30, 1992, in triplicate. Comments sent via the The postcard will be date stamped and which describes procedures for Internet as attached electronic files must returned to the commenter. modification of the IDG feeders be formatted in Microsoft Word 97 or involving installation of continuous size Availability of NPRMs 2000 or ASCII text. 6 cables without splices. The service information referenced in Any person may obtain a copy of this • BAE Systems (Operations) Limited the proposed rule may be obtained from NPRM by submitting a request to the Modification Service Bulletin SB.24– British Aerospace Regional Aircraft FAA, Transport Airplane Directorate, 92–01203C, Revision 1, dated August American Support, 13850 Mclearen ANM–114, Attention: Rules Docket No. 27, 2002, which describes procedures Road, Herndon, Virginia 20171. This 2003–NM–171–AD, 1601 Lind Avenue, for modification of the IDG feeders information may be examined at the SW., Renton, Washington 98055–4056. involving installation of size 4 cables

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that have terminal blocks instead of Difference Between Proposed Rule and FR 11034, February 26, 1979); and (3) if splices. Certain Referenced Service Bulletin promulgated, will not have a significant Per BAE Systems (Operations) Operators should note that, although economic impact, positive or negative, Limited Inspection Service Bulletin the Accomplishment Instructions of on a substantial number of small entities ISB.24–139, dated April 2, 2003, BAE Systems (Operations) Limited under the criteria of the Regulatory accomplishment of any of the Inspection Service Bulletin ISB.24–139, Flexibility Act. A copy of the draft modifications described previously dated April 2, 2003, describes regulatory evaluation prepared for this eliminates the need for the repetitive procedures for reporting inspection action is contained in the Rules Docket. inspections of the APU or IDG feeders, findings to the airplane manufacturer, A copy of it may be obtained by as applicable. this proposed AD would not require that contacting the Rules Docket at the Accomplishment of the actions action. location provided under the caption specified in the service bulletins is ADDRESSES. intended to adequately address the Cost Impact List of Subjects in 14 CFR Part 39 identified unsafe condition. The CAA The FAA estimates that 17 airplanes classified BAE Systems (Operations) of U.S. registry would be affected by this Air transportation, Aircraft, Aviation Limited Inspection Service Bulletin proposed AD, that it would take safety, Safety. ISB.24–139, dated April 2, 2003, as approximately 6 work hours per The Proposed Amendment mandatory and issued British airplane to accomplish the proposed Accordingly, pursuant to the airworthiness directive 005–04–2003 to inspections, and that the average labor authority delegated to me by the ensure the continued airworthiness of rate is $65 per work hour. Based on Administrator, the Federal Aviation these airplanes in the United Kingdom. these figures, the cost impact of the Administration proposes to amend part FAA’s Conclusions proposed AD on U.S. operators is 39 of the Federal Aviation Regulations estimated to be $6,630, or $390 per This airplane model is manufactured (14 CFR part 39) as follows: in the United Kingdom and is type airplane, per inspection cycle. certificated for operation in the United The optional terminating action, if PART 39—AIRWORTHINESS States under the provisions of section done, would take approximately DIRECTIVES 21.29 of the Federal Aviation between 5 and 30 work hours per Regulations (14 CFR 21.29) and the airplane, at an average labor rate of $65 1. The authority citation for part 39 applicable bilateral airworthiness per work hour. Required parts would continues to read as follows: agreement. Pursuant to this bilateral cost approximately between $744 and Authority: 49 U.S.C. 106(g), 40113, 44701. airworthiness agreement, the CAA has $1,379 per airplane. Based on these § 39.13 [Amended] kept the FAA informed of the situation figures, we estimate the cost of the described above. The FAA has optional terminating action to be 2. Section 39.13 is amended by examined the findings of the CAA, between $1,069 and $2,847 per airplane. adding the following new airworthiness reviewed all available information, and The cost impact figures discussed directive: determined that AD action is necessary above are based on assumptions that no BAE Systems (Operations) Limited for products of this type design that are operator has yet accomplished any of (Formerly British Aerospace Regional certificated for operation in the United the proposed requirements of this AD Aircraft): Docket 2003–NM–171–AD. States. action, and that no operator would Applicability: Model BAE 146 series accomplish those actions in the future if airplanes, as identified in BAE Systems Explanation of Requirements of this AD were not adopted. The cost (Operations) Limited Inspection Service Proposed Rule impact figures discussed in AD Bulletin ISB.24–139, dated April 2, 2003; Since an unsafe condition has been rulemaking actions represent only the certificated in any category. Compliance: Required as indicated, unless identified that is likely to exist or time necessary to perform the specific accomplished previously. develop on other airplanes of the same actions actually required by the AD. To prevent overheating of the in-line type design registered in the United These figures typically do not include splices of the auxiliary power unit (APU) and States, the proposed AD would require incidental costs, such as the time integrated drive generator (IDG) feeder accomplishment of the actions specified required to gain access and close up, cables, which can lead to smoke, fumes, and in BAE Systems (Operations) Limited planning time, or time necessitated by possible fire in the flight deck and cabin, Inspection Service Bulletin ISB.24–139, other administrative actions. accomplish the following: dated April 2, 2003, except as discussed Regulatory Impact Inspection below under ‘‘Difference Between (a) Within 6 months after the effective date Proposed Rule and Certain Referenced The regulations proposed herein of this AD, do a detailed inspection for heat Service Bulletin.’’ would not have a substantial direct damage to any in-line splice in the APU and This proposed AD also would provide effect on the States, on the relationship IDG feeder cables, per the Accomplishment for optional terminating action for the between the national government and Instructions of BAE Systems (Operations) repetitive inspections. Consistent with the States, or on the distribution of Limited Inspection Service Bulletin ISB.24– the findings of the CAA, the proposed power and responsibilities among the 139, dated April 2, 2003. If no heat damage AD would allow repetitive inspections various levels of government. Therefore, is found, repeat the inspections thereafter at to continue in lieu of the terminating it is determined that this proposal intervals not to exceed 12 months. Although action. In making this determination, we would not have federalism implications the service bulletin specifies to report inspection findings to the airplane considered that long-term continued under Executive Order 13132. manufacturer, this AD does not include such operational safety in this case will be For the reasons discussed above, I a requirement. adequately ensured by repetitive certify that this proposed regulation (1) Note 1: For the purposes of this AD, a inspections of in-line splices in the APU is not a ‘‘significant regulatory action’’ detailed inspection is defined as: ‘‘An and IDG feeder cables to detect heat under Executive Order 12866; (2) is not intensive visual examination of a specific damage before it represents a hazard to a ‘‘significant rule’’ under the DOT structural area, system, installation, or the airplane. Regulatory Policies and Procedures (44 assembly to detect damage, failure, or

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irregularity. Available lighting is normally investigative and corrective actions. Submit comments using the following supplemented with a direct source of good This action is necessary to prevent format: lighting at intensity deemed appropriate by failure of certain ground spoiler support • Organize comments issue-by-issue. the inspector. Inspection aids such as mirror, arms due to interference between the For example, discuss a request to magnifying lenses, etc., may be used. Surface cleaning and elaborate access procedures ground spoiler assemblies and the wing change the compliance time and a may be required.’’ flaps, which could result in loss of request to change the service bulletin function of affected ground spoiler reference as two separate issues. Corrective Action assemblies and consequent reduced • For each issue, state what specific (b) If any heat damage is found during any controllability of the airplane. This change to the proposed AD is being inspection done per paragraph (a) of this AD: action is intended to address the requested. Prior to further flight, modify the damaged identified unsafe condition. • Include justification (e.g., reasons or in-line splices in the APU and/or IDG feeder data) for each request. DATES: Comments must be received by cable circuits, per paragraph 2.F., Comments are specifically invited on April 16, 2004. ‘‘Terminating Action,’’ of the the overall regulatory, economic, Accomplishment Instructions of BAE ADDRESSES: Submit comments in environmental, and energy aspects of Systems (Operations) Limited Inspection triplicate to the Federal Aviation the proposed rule. All comments Service Bulletin ISB.24–139, dated April 2, Administration (FAA), Transport 2003, as applicable. submitted will be available, both before Airplane Directorate, ANM–114, and after the closing date for comments, Optional Terminating Action Attention: Rules Docket No. 2003–NM– in the Rules Docket for examination by (c) Modifying the in-line splices in the 121–AD, 1601 Lind Avenue, SW., interested persons. A report APU and/or the IDG feeder cable circuits, per Renton, Washington 98055–4056. summarizing each FAA-public contact the Terminating Action instructions of the Comments may be inspected at this concerned with the substance of this Accomplishment Instructions of BAE location between 9 a.m. and 3 p.m., proposal will be filed in the Rules Systems (Operations) Limited Inspection Monday through Friday, except Federal Docket. Service Bulletin ISB.24–139, dated April 2, holidays. Comments may be submitted 2003, constitutes terminating action for this Commenters wishing the FAA to AD. via fax to (425) 227–1232. Comments acknowledge receipt of their comments may also be sent via the Internet using submitted in response to this action Alternative Methods of Compliance the following address: 9-anm- must submit a self-addressed, stamped (d) In accordance with 14 CFR 39.19, the [email protected]. Comments sent postcard on which the following Manager, International Branch, ANM–116, via fax or the Internet must contain statement is made: ‘‘Comments to Transport Airplane Directorate, FAA, is ‘‘Docket No. 2003–NM–121–AD’’ in the Docket Number 2003–NM–121–AD.’’ authorized to approve alternative methods of subject line and need not be submitted compliance for this AD. The postcard will be date stamped and in triplicate. Comments sent via the returned to the commenter. Note 2: The subject of this AD is addressed Internet as attached electronic files must in British airworthiness directive 005–04– Availability of NPRMs 2003. be formatted in Microsoft Word 97 or 2000 or ASCII text. Any person may obtain a copy of this Issued in Renton, Washington, on March 5, The service information referenced in NPRM by submitting a request to the 2004. the proposed rule may be obtained from FAA, Transport Airplane Directorate, Ali Bahrami, AvCraft Aerospace GmbH, P.O. Box ANM–114, Attention: Rules Docket No. Acting Manager, Transport Airplane 1103, D–82230 Wessling, Germany. This 2003–NM–121–AD, 1601 Lind Avenue, Directorate, Aircraft Certification Service. information may be examined at the SW., Renton, Washington 98055–4056. [FR Doc. 04–5945 Filed 3–16–04; 8:45 am] FAA, Transport Airplane Directorate, Discussion BILLING CODE 4910–13–P 1601 Lind Avenue, SW., Renton, Washington. The Luftfahrt-Bundesamt (LBA), which is the airworthiness authority for DEPARTMENT OF TRANSPORTATION FOR FURTHER INFORMATION CONTACT: Dan Germany, notified the FAA that an Rodina, Aerospace Engineer, unsafe condition may exist on all Federal Aviation Administration International Branch, ANM–116, FAA, Dornier Model 328–300 series airplanes. Transport Airplane Directorate, 1601 The LBA advises that there may be 14 CFR Part 39 Lind Avenue, SW., Renton, Washington insufficient clearance between the 98055–4056; telephone (425) 227–2125; [Docket No. 2003–NM–121–AD] bottom of the trailing edges of the fax (425) 227–1149. ground spoilers and the upper surfaces RIN 2120–AA64 SUPPLEMENTARY INFORMATION: of the wing flaps, which places higher loads on support arms #3 and #8 of the Airworthiness Directives; Dornier Comments Invited ground spoiler assemblies. Higher loads Model 328–300 Series Airplanes Interested persons are invited to may result in premature cracking of the AGENCY: Federal Aviation participate in the making of the support arms. This condition, if not Administration, DOT. proposed rule by submitting such corrected, could result in loss of ACTION: Notice of proposed rulemaking written data, views, or arguments as function of the affected ground spoiler (NPRM). they may desire. Communications shall assemblies, and consequent reduced identify the Rules Docket number and controllability of the airplane. SUMMARY: This document proposes the be submitted in triplicate to the address adoption of a new airworthiness specified above. All communications Explanation of Relevant Service directive (AD) that is applicable to all received on or before the closing date Information Dornier Model 328–300 series airplanes. for comments, specified above, will be Dornier has issued Service Bulletin This proposal would require various considered before taking action on the SB–328J–57–180, Revision 1, dated one-time inspections for discrepancies proposed rule. The proposals contained March 10, 2003, which describes of the ground spoiler assemblies and the in this action may be changed in light procedures for a visual inspection, flap of each wing, and related of the comments received. contour inspection, and clearance

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inspection of the ground spoilers and Explanation of Requirements of planning time, or time necessitated by the flap of each wing for discrepancies, Proposed Rule other administrative actions. and the following related investigative Since an unsafe condition has been Regulatory Impact and corrective actions: identified that is likely to exist or The regulations proposed herein • develop on other airplanes of the same A visual inspection of the flap would not have a substantial direct type design registered in the United protection strip for chafing marks, effect on the States, on the relationship States, the proposed AD would require reporting inspection results to the between the national Government and accomplishment of the actions specified manufacturer, and inspecting the the States, or on the distribution of in the service bulletin described bottom surface of the ground spoiler and power and responsibilities among the previously, except as discussed below. the mating upper surface of the flap of various levels of government. Therefore, each wing for surface damage (chafing Differences Between the Proposed AD, it is determined that this proposal marks or paint damage), and repair if German Airworthiness Directive, and would not have federalism implications necessary. Service Information under Executive Order 13132. • For the reasons discussed above, I A contour inspection of the ground Operators should note that the service certify that this proposed regulation (1) spoiler and the flap of each wing to bulletin recommends doing the is not a ‘‘significant regulatory action’’ determine if they are within the specified actions ‘‘as soon as possible, under Executive Order 12866; (2) is not tolerances specified in Table 1 of the or at the latest, at the next A-Check or a ‘‘significant rule’’ under the DOT service bulletin, adjusting the ground equivalent.’’ The German airworthiness Regulatory Policies and Procedures (44 spoiler actuator if out of tolerance, and directive recommends doing the actions FR 11034, February 26, 1979); and (3) if repeating the inspection one time if the ‘‘as soon as possible, but not later than promulgated, will not have a significant ground spoiler actuator is adjusted. the next A-Check.’’ Because ‘‘A-Check’’ economic impact, positive or negative, • schedules vary among operators, this A clearance inspection between the on a substantial number of small entities proposed AD would require bottom of the trailing edge of the ground under the criteria of the Regulatory accomplishment of the actions within spoiler and the upper surface of the flap Flexibility Act. A copy of the draft 400 flight cycles after the effective date of each wing. If there is a notable regulatory evaluation prepared for this of this proposed AD. We find that a deflection (spring back effect) between action is contained in the Rules Docket. compliance time of within 400 flight the ground spoiler and the surface, the A copy of it may be obtained by cycles after the effective date of this AD service bulletin recommends writing contacting the Rules Docket at the is appropriate for affected airplanes to down and reporting the results of the location provided under the caption continue to operate without clearance and contour inspections to the ADDRESSES. compromising safety. manufacturer. If there is no notable Whereas the service bulletin specifies List of Subjects in 14 CFR Part 39 deflection (spring back effect) between a visual inspection of the flap protection the ground spoiler and the surface, the Air transportation, Aircraft, Aviation strip for chafing marks, this proposed safety, Safety. service bulletin recommends adjusting AD requires a general visual inspection. the ground spoiler actuator and A note has been added to define that The Proposed Amendment repeating the contour inspection one inspection. time. Accordingly, pursuant to the The service bulletin also specifies to authority delegated to me by the Accomplishment of the actions submit information to the manufacturer, Administrator, the Federal Aviation specified in the service bulletin is however, this proposed AD does not Administration proposes to amend part intended to adequately address the include such a requirement. 39 of the Federal Aviation Regulations identified unsafe condition. The LBA Cost Impact (14 CFR part 39) as follows: classified this service bulletin as mandatory and issued German We estimate that 48 airplanes of U.S. PART 39—AIRWORTHINESS airworthiness directive 2003–120/2, registry would be affected by this DIRECTIVES dated July 24, 2003, to ensure the proposed AD, that it would take approximately 2 work hours per 1. The authority citation for part 39 continued airworthiness of these continues to read as follows: airplanes in Germany. airplane to accomplish the proposed actions, and that the average labor rate Authority: 49 U.S.C. 106(g), 40113, 44701. FAA’s Conclusions is $65 per work hour. Based on these figures, the cost impact of the proposed § 39.13 [Amended] This airplane model is manufactured AD on U.S. operators is estimated to be 2. Section 39.13 is amended by in Germany and is type certificated for $6,240, or $130 per airplane. adding the following new airworthiness operation in the United States under the The cost impact figure discussed directive: provisions of section 21.29 of the above is based on assumptions that no Fairchild Dornier Gmbh (Formerly Dornier Federal Aviation Regulations (14 CFR operator has yet accomplished any of Luftfahrt GmbH): Docket 2003–NM– 21.29) and the applicable bilateral the proposed requirements of this AD 121–AD. airworthiness agreement. Pursuant to action, and that no operator would Applicability: All Model 328–300 this bilateral airworthiness agreement, accomplish those actions in the future if airplanes, certificated in any category. the LBA has kept the FAA informed of this AD were not adopted. The cost Compliance: Required as indicated, unless the situation described above. The FAA impact figures discussed in AD accomplished previously. has examined the findings of the LBA, rulemaking actions represent only the To prevent failure of certain ground spoiler reviewed all available information, and support arms due to interference between the time necessary to perform the specific ground spoiler assemblies and the wing flaps, determined that AD action is necessary actions actually required by the AD. which could result in loss of function of for products of this type design that are These figures typically do not include affected ground spoiler assemblies and certificated for operation in the United incidental costs, such as the time consequent reduced controllability of the States. required to gain access and close up, airplane, accomplish the following:

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General Visual, Contour, and Clearance ACTION: Notice of proposed rulemaking identify the Rules Docket number and Inspections of Ground Spoilers, and Related (NPRM). be submitted in triplicate to the address Investigative/Corrective Actions specified above. All communications (a) Within 400 flight cycles after the SUMMARY: This document proposes the received on or before the closing date effective date of this AD: Do one-time general adoption of a new airworthiness for comments, specified above, will be visual, contour, and clearance inspections for directive (AD) that is applicable to considered before taking action on the discrepancies of the ground spoiler certain Airbus Model A320–211, –212, proposed rule. The proposals contained assemblies and the wing flaps by doing all –214, –232 and –233 series airplanes in this action may be changed in light the actions per the Accomplishment and Model A321–211, –231 and –232 Instructions of Dornier Service Bulletin SB– of the comments received. series airplanes. This proposal would Submit comments using the following 328J–57–180, Revision 1, dated March 10, require a one-time ultrasonic inspection 2003. Any applicable related investigative format: and corrective actions must be done before of certain floor crossbeams to determine • Organize comments issue-by-issue. further flight per the service bulletin. if they are of nominal thickness; and a For example, discuss a request to Note 1: For the purposes of this AD, a structural modification to reinforce any change the compliance time and a general visual inspection is defined as: ‘‘A crossbeam that is not of nominal request to change the service bulletin visual examination of an interior or exterior thickness. This action is necessary to reference as two separate issues. area, installation, or assembly to detect prevent reduced structural integrity of • For each issue, state what specific obvious damage, failure, or irregularity. This the floor in the event of rapid change to the proposed AD is being level of inspection is made from within depressurization or rapid vertical requested. touching distance unless otherwise specified. acceleration. This action is intended to • Include justification (e.g., reasons or A mirror may be necessary to enhance visual address the identified unsafe condition. data) for each request. access to all exposed surfaces in the Comments are specifically invited on inspection area. This level of inspection is DATES: Comments must be received by made under normally available lighting April 16, 2004. the overall regulatory, economic, conditions such as daylight, hangar lighting, ADDRESSES: Submit comments in environmental, and energy aspects of flashlight, or droplight and may require triplicate to the Federal Aviation the proposed rule. All comments removal or opening of access panels or doors. Administration (FAA), Transport submitted will be available, both before Stands, ladders, or platforms may be required Airplane Directorate, ANM–114, and after the closing date for comments, to gain proximity to the area being checked.’’ Attention: Rules Docket No. 2002–NM– in the Rules Docket for examination by interested persons. A report Submission of Inspection Results Not 224–AD, 1601 Lind Avenue, SW., Required Renton, Washington 98055–4056. summarizing each FAA-public contact Comments may be inspected at this concerned with the substance of this (b) Although the service bulletin proposal will be filed in the Rules referenced in this AD specifies to submit location between 9 a.m. and 3 p.m., information to the manufacturer, this AD Monday through Friday, except Federal Docket. does not include such a requirement. holidays. Comments may be submitted Commenters wishing the FAA to acknowledge receipt of their comments Alternative Methods of Compliance via fax to (425) 227–1232. Comments may also be sent via the Internet using submitted in response to this action (c) In accordance with 14 CFR 39.19, the the following address: 9-anm- must submit a self-addressed, stamped Manager, International Branch, ANM–116, postcard on which the following Transport Airplane Directorate, FAA, is [email protected]. Comments sent via fax or the Internet must contain statement is made: ‘‘Comments to authorized to approve alternative methods of Docket Number 2002–NM–224–AD.’’ compliance for this AD. ‘‘Docket No. 2002–NM–224–AD’’ in the subject line and need not be submitted The postcard will be date stamped and Note 2: The subject of this AD is addressed returned to the commenter. in German airworthiness directive 2003–120/ in triplicate. Comments sent via the 2, dated July 24, 2003. Internet as attached electronic files must Availability of NPRMs be formatted in Microsoft Word 97 or Any person may obtain a copy of this Issued in Renton, Washington, on March 2000 or ASCII text. 11, 2004. NPRM by submitting a request to the The service information referenced in FAA, Transport Airplane Directorate, Kalene C. Yanamura, the proposed rule may be obtained from ANM–114, Attention: Rules Docket No. Acting Manager, Transport Airplane Airbus, 1 Rond Point Maurice Bellonte, 2002–NM–224–AD, 1601 Lind Avenue, Directorate, Aircraft Certification Service. 31707 Blagnac Cedex, France. This SW., Renton, Washington 98055–4056. [FR Doc. 04–5967 Filed 3–16–04; 8:45 am] information may be examined at the BILLING CODE 4910–13–P FAA, Transport Airplane Directorate, Discussion 1601 Lind Avenue, SW., Renton, The Direction Ge´ne´rale de l’Aviation Washington. DEPARTMENT OF TRANSPORTATION Civile (DGAC), which is the FOR FURTHER INFORMATION CONTACT: Dan airworthiness authority for France, Federal Aviation Administration Rodina, Aerospace Engineer; notified the FAA that an unsafe International Branch, ANM–116, FAA, condition may exist on certain Airbus 14 CFR Part 39 Transport Airplane Directorate, 1601 Model A320–211, –212, –214, –232 and Lind Avenue, SW., Renton, Washington –233 series airplanes and Model A321– [Docket No. 2002–NM–224–AD] 98055–4056; telephone (425) 227–2125; 211, –231 and –232 series airplanes. The fax (425) 227–1149. DGAC advises that an Airbus quality RIN 2120–AA64 SUPPLEMENTARY INFORMATION: check revealed that, due to a process discrepancy during production, certain Airworthiness Directives; Airbus Model Comments Invited A320–211, –212, –214, –232 and –233 floor structural crossbeams were Series Airplanes and Model A321–211, Interested persons are invited to manufactured that were not of nominal –231 and –232 Series Airplanes participate in the making of the thickness and were installed in certain proposed rule by submitting such airplanes before the discrepancy was AGENCY: Federal Aviation written data, views, or arguments as discovered. This condition, if not Administration, DOT. they may desire. Communications shall corrected, could result in reduced

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structural integrity of the floor in the States, the proposed AD would require power and responsibilities among the event of rapid depressurization or rapid accomplishment of the actions specified various levels of government. Therefore, vertical acceleration. in the applicable service bulletins it is determined that this proposal described previously, except as would not have federalism implications Explanation of Relevant Service described below. under Executive Order 13132. Information For the reasons discussed above, I Airbus has issued Service Bulletin Difference Between Proposed Rule and Referenced Service Bulletins certify that this proposed regulation (1) A320–53A1162, including Appendix 01 is not a ‘‘significant regulatory action’’ and Appendix 02, dated June 25, 2002, Operators should note that, although under Executive Order 12866; (2) is not which describes procedures for a one- Airbus Service Bulletin A320–53A1162, a ‘‘significant rule’’ under the DOT time ultrasonic inspection of certain including Appendix 01 and Appendix Regulatory Policies and Procedures (44 floor crossbeams for nominal thickness. 02, dated June 25, 2002, describes FR 11034, February 26, 1979); and (3) if Airbus has also issued Service Bulletin procedures for submitting inspection promulgated, will not have a significant A320–53A1163, dated June 25, 2002, results to the manufacturer, this economic impact, positive or negative, which describes procedures for proposed AD would not require that on a substantial number of small entities reinforcement of crossbeams found not action. under the criteria of the Regulatory at nominal thickness. Accomplishment Cost Impact Flexibility Act. A copy of the draft of the actions specified in the service regulatory evaluation prepared for this bulletins is intended to adequately The FAA estimates that 25 airplanes action is contained in the Rules Docket. address the identified unsafe condition. of U.S. registry would be affected by this A copy of it may be obtained by The DGAC classified these service proposed AD. contacting the Rules Docket at the bulletins as mandatory and issued The ultrasonic inspection required by location provided under the caption French airworthiness directive 2002– this proposed AD would take ADDRESSES. 418(B), on August 7, 2002, to ensure the approximately 1 work hour per airplane continued airworthiness of these to accomplish at an average labor rate of List of Subjects in 14 CFR Part 39 airplanes in France. $65 per work hour. Based on these figures, the cost impact of this AD on Air transportation, Aircraft, Aviation FAA’s Conclusions U.S. operators is estimated to be $1,625, safety, Safety. These airplane models are or $65 per airplane. The Proposed Amendment manufactured in France and are type The cost impact figures discussed certificated for operation in the United above are based on assumptions that no Accordingly, pursuant to the States under the provisions of section operator has yet accomplished any of authority delegated to me by the 21.29 of the Federal Aviation the proposed requirements of this AD Administrator, the Federal Aviation Regulations (14 CFR 21.29) and the action, and that no operator would Administration proposes to amend part applicable bilateral airworthiness accomplish those actions in the future if 39 of the Federal Aviation Regulations agreement. Pursuant to this bilateral this AD were not adopted. The cost (14 CFR part 39) as follows: airworthiness agreement, the DGAC has impact figures discussed in AD kept the FAA informed of the situation rulemaking actions represent only the PART 39—AIRWORTHINESS described above. The FAA has time necessary to perform the specific DIRECTIVES examined the findings of the DGAC, actions actually required by the AD. 1. The authority citation for part 39 reviewed all available information, and These figures typically do not include continues to read as follows: determined that AD action is necessary incidental costs, such as the time for products of this type design that are required to gain access and close up, Authority: 49 U.S.C. 106(g), 40113, 44701. certificated for operation in the United planning time, or time necessitated by § 39.13 [Amended] States. other administrative actions. 2. Section 39.13 is amended by Explanation of Requirements of Regulatory Impact adding the following new airworthiness Proposed Rule The regulations proposed herein directive: Since an unsafe condition has been would not have a substantial direct Airbus: Docket 2002–NM–224–AD. identified that is likely to exist or effect on the States, on the relationship Applicability: This AD applies to the develop on other airplanes of the same between the national Government and airplanes specified in Table 1 of this AD; type design registered in the United the States, or on the distribution of certificated in any category.

TABLE 1

Manufacturer’s Serial For model Number (MSN) Except for MSN

A320–211, –212, –214, –232, and –233 series airplanes 1516 to 1754 inclusive ...... 1624, 1655, 1665, 1676, 1694, 1697, 1708, 1730, 1732 and 1736 A321–211, –231 and –232 series airplanes ...... 1572 to 1711 inclusive ...... 1675 and 1681

Compliance: Required as indicated, unless Inspection applicable, dated June 25, 2002. Do the accomplished previously. (a) Within 450 flight hours from the inspection per the Accomplishment To prevent reduced structural integrity of effective date of this AD, perform a one-time Instructions of the Service Bulletin. the floor in the event of rapid ultrasonic inspection of the specified floor (1) If both floor crossbeams are found to be depressurization or rapid vertical crossbeams for nominal thickness, as defined at the nominal thickness, no further action is acceleration, accomplish the following: in Airbus Service Bulletin A320–53A1162, required by this AD. including Appendix 01 and Appendix 02, as

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(2) If any floor crossbeam is found to not guidance document that would serve as devices, are classified automatically by be at the nominal thickness, within 50 flight the special control for the devices if this statute (section 513(f) of the act) into hours after the inspection required by proposal becomes final. class III without any FDA rulemaking paragraph (a) of this AD, reinforce the DATES: Submit written or electronic process. Those devices remain in class crossbeam in accordance with the III and require premarket approval until Accomplishment Instructions of Airbus comments by June 15, 2004. See section Service Bulletin A320–53A1163, dated June IX of this document for the proposed FDA performs the following tasks: (1) 25, 2002, as applicable. effective date of a final rule based on Reclassifies the device into class I or II; this document. (2) issues an order classifying the device Difference Between Proposed Rule and into class I or II in accordance with new ADDRESSES: Submit written comments Referenced Service Bulletins section 513(f)(2) of the act, as amended to the Division of Dockets Management (b) Although the service bulletins by the FDAMA; or (3) issues an order (HFA–305), Food and Drug referenced in this AD specify to submit finding the device to be substantially Administration, 5630 Fishers Lane, certain information to the manufacturer, this equivalent, in accordance with section AD does not include such a requirement. Room 1061, Rockville, MD 20852. 513(i) of the act, to a legally marketed Submit electronic comments to http:// Alternative Methods of Compliance device that does not require premarket www.fda.gov/dockets/ecomments. (c) In accordance with 14 CFR 39.19, the approval. The agency determines Manager, International Branch, ANM–116, FOR FURTHER INFORMATION CONTACT: whether new devices are substantially FAA, is authorized to approve alternative Janine Morris, Center for Devices and equivalent to previously marketed methods of compliance for this AD. Radiological Health (HFZ–470), Food devices by means of premarket Note 1: The subject of this AD is addressed and Drug Administration, 9200 notification procedures in section 510(k) in French airworthiness directive 2002– Corporate Blvd., Rockville, MD 20850, of the act (21 U.S.C. 360(k)) and 21 CFR 418(B), dated August 7, 2002. (301) 594–2194. part 807 of the regulations. Issued in Renton, Washington, on March SUPPLEMENTARY INFORMATION: A preamendments device that has been classified into class III may be 10, 2004. I. Background Kalene C. Yanamura, marketed, by means of premarket A. Regulatory Authorities notification procedures, without Acting Manager, Transport Airplane submission of a premarket approval Directorate, Aircraft Certification Service. The Federal Food, Drug, and Cosmetic application (PMA) until FDA issues a [FR Doc. 04–5968 Filed 3–16–04; 8:45 am] Act (the act) (21 U.S.C. 301 et seq.), as final regulation under section 515(b) of BILLING CODE 4910–13–P amended by the Medical Device the act (21 U.S.C. 360e(b)) requiring Amendments of 1976 (the 1976 premarket approval. amendments) (Public Law 94–295), the FDAMA added a new section 510(m) DEPARTMENT OF HEALTH AND Safe Medical Devices Act of 1990 to the act (21 U.S.C. 360(m)). New HUMAN SERVICES (SMDA) (Public Law 101–629), the Food section 510(m) of the act provides that and Drug Administration Modernization FDA may exempt a class II device from Food and Drug Administration Act (FDAMA) (Public Law 105–115), the premarket notification requirements and the Medical Devices User Fee and under section 510(k) of the act, if the 21 CFR Part 876 Modernization Act (MDUFMA) (Public agency determines that premarket Law 107–250) established a [Docket No. 1998N–1111] notification is not necessary to assure comprehensive system for regulating the safety and effectiveness of the Gastroenterology-Urology Devices; medical devices intended for human device. FDA has determined that Classification for External Penile use. Section 513 of the act (21 U.S.C. premarket notification is not necessary Rigidity Devices 360c) established three categories to assure the safety and effectiveness of (classes) of devices, depending on the external penile rigidity devices. AGENCY: Food and Drug Administration, regulatory controls needed to provide HHS. reasonable assurance of their safety and B. Regulatory History ACTION: Proposed rule. effectiveness. The three categories of External penile rigidity devices are devices are class I (general controls), preamendments devices. These devices SUMMARY: The Food and Drug class II (special controls), and class III were not classified with the Administration (FDA) is proposing to (premarket approval). gastroenterology and urology devices classify external penile rigidity devices Under section 513 of the act, devices that were classified in 1983. FDA has intended to create or maintain sufficient that were in commercial distribution reviewed marketing submissions for penile rigidity for sexual intercourse before May 28, 1976 (the date of these devices through the 510(k) into class II (special controls). Also, enactment of the amendments), process. Based on the premarket FDA is giving notice of its intent to generally referred to as preamendments notifications (510(k)) reviews, the exempt this type of device from the devices, are classified after FDA has agency believes that the labeling of premarket notification (510(k)) taken the following steps: (1) Received these devices adequately informs users requirements of the Federal Food, Drug, a recommendation from a device and practitioners about the safe and and Cosmetic Act. After considering classification panel (an FDA advisory effective use of the devices. public comments on the proposed committee); (2) published the panel’s Consistent with the act and the classification, FDA will publish a final recommendation for comment, along regulations, FDA consulted with the regulation classifying these devices. with a proposed regulation classifying Gastroenterology-Urology Advisory This action is being taken to establish the device; and (3) published a final Panel (the Panel), an FDA advisory sufficient regulatory controls that will regulation classifying the device. FDA committee, regarding the classification provide reasonable assurance of the has classified most preamendments of these devices. During a public safety and effectiveness of this device. devices under these procedures. meeting on August 7, 1997, the Panel Elsewhere in this issue of the Federal Devices that were not in commercial discussed the history, composition, and Register, FDA is publishing a notice distribution before May 28, 1976, usage of external penile rigidity devices. announcing the availability of a draft generally referred to as postamendments The Panel recommended classifying

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external penile rigidity devices into page at http://www.fda.gov/cdrh or by 3. Information Relevant to Penile class II with labeling recommendations fax through CDRH Facts-on-Demand at Splints as special controls (Ref. 1). 1–800–899–0381 or 301–827–0111. The user should consult a physician In the Federal Register of January 4, Specify ‘‘159’’ when prompted for the if any injuries occur to either the user 1999 (64 FR 62), FDA issued a proposed document shelf number. rule to classify external penile rigidity or the user’s partner. III. Recommendation of the Panel devices into class II. The January 4, C. Summary of Reasons for 1999, proposal provided the regulatory A. Device Identification Recommendation history of external penile rigidity The Panel made the following device The Panel recommended that external devices as well as the recommendation identification recommendation: Penile penile rigidity devices be classified into of the Panel that these devices be rigidity devices are generic external class II. The Panel believed that special classified into class II (special controls). devices that include constriction rings, Specifically, the Panel recommended controls regarding labeling vacuum pumps, and penile splints for recommendations, in addition to general that FDA classify the devices into class the management of erectile dysfunction. II because it concluded that special controls, would provide reasonable These devices fit on, over, or around the assurance of the safety and effectiveness controls, in addition to general controls, penis to support, promote, or maintain would provide reasonable assurance of of the devices, and that there is sufficient penile rigidity for sexual sufficient information to establish the safety and effectiveness of the intercourse. devices, and that there was sufficient special controls to provide such information to establish special controls B. Recommended Classification of the assurance. to provide that assurance. FDA agreed Panel D. Summary of Data Upon Which the with the Panel’s recommended The Panel unanimously Recommendation is Based classification. recommended that FDA classify The Panel based its recommendation The January 4, 1999, proposed rule external penile rigidity devices into provided an opportunity for interested on the Panel members’ knowledge and class II (special controls). The Panel clinical experience, as well as published persons to submit comments. The 90- believed that special controls regarding day comment period ended on April 15, literature on external penile rigidity labeling recommendations would devices (Refs. 2 through 4). 1999. FDA received no comments. provide reasonable assurance of the FDA has decided to repropose the safety and effectiveness of the device E. Risks to Health classification of this device to modify type. The Panel advised that the the description of external penile The Panel identified pain and/or labeling provide the following discomfort, bruising, hemorrhage and/or rigidity devices to clarify its intended information: (1) The identified risks to use. In addition, FDA, on its own hematoma formation, penile injury and health of this device type; (2) relevant penile gangrene (if blood flow is initiative, is proposing to exempt these contraindications, warnings, and devices from premarket notification restricted too long) as risks and possible precautions; (3) possible methods of side effects associated with the use of requirements. The agency believes that resolution of the problems/risks these external penile rigidity devices. premarket notification is not necessary associated with the use of the devices; After considering the Panel’s to assure the safety and effectiveness of and (4) device-specific information. deliberations, as well as the published the device for the following reasons: (1) Device-specific information (64 FR 62) literature and medical device reports, FDA received no adverse event reports contains warnings and precautions, FDA evaluated the risks to health regarding the use of external penile including, but not limited to, the associated with the use of external rigidity devices from 1997 to the present following: and (2) FDA conducted a scientific penile rigidity devices. FDA categorized literature review from 1996 to June 1. Information Relevant to Vacuum the following as risks to health: (1) 2003, which continued to show that the Pumps Tissue injury or trauma; (2) aggravation devices are safe and effective when used The user should apply the minimum of existing medical conditions, such as properly. FDA also believes that a amount of vacuum pressure necessary to Peyronie’s disease, priaprism, and special controls guidance document achieve an erection. Misuse of a vacuum urethral strictures; and (3) infection/ with labeling recommendations pump may aggravate already existing adverse tissue reactions. addressing proper usage, along with the medical conditions such as Peyronie’s 1. Tissue Injury or Trauma general controls, would provide disease, priaprism, and urethral reasonable assurance of the safety and strictures. Tissue injury and trauma are risks to effectiveness of the devices. health associated with the use of 2. Information Relevant to Constriction external penile rigidity devices. II. Criteria for Exemption Rings Prolonged use of constriction bands There are a number of factors FDA The user should restrict use of the over 30 minutes without removal may may consider to determine whether a device to 30 minutes and should not fall cause permanent injury to the penis 510(k) is necessary to provide asleep wearing the constriction ring. because of restricted blood flow. reasonable assurance of the safety and Prolonged use of the constriction ring Frequent use of constriction rings also effectiveness of a class II device. These without removal may cause permanent may result in bruising at the base of the factors are discussed in a guidance injury to the penis. penis. Misuse of a vacuum pump may document the agency issued on Frequent use of constrictions rings bruise or rupture the blood vessels February 19, 1998, entitled ‘‘Procedures may result in bruising at the base of the either immediately below the surface of for Class II Device Exemptions From penis. The user should not use the skin or within the deep structures of Premarket Notification, Guidance for constrictions rings if there is decreased the penis or scrotum, resulting in Industry and CDRH Staff.’’ You may ability to sense pain in the penis, hemorrhage and/or hematoma obtain that guidance through the because pain may occur as a warning formation. Misuse of a penile splint may Internet on FDA’s Center for Devices sign that the device may be causing cause vaginal trauma to the user’s and Radiological Health (CDRH) home injury. partner.

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2. Aggravation of Certain Existing device, and (3) warning statements and to assure the safety and effectiveness of Medical Conditions consequences that emphasize their the device for the following reasons: (1) Misuse of a vacuum pump or importance. FDA received no adverse event reports constriction ring may aggravate already b. Design features. The section on regarding the use of external penile existing medical conditions, such as design features has specific safety- rigidity devices from 1997 to the present Peyronie’s disease, priaprism, and related recommendations for and (2) FDA conducted a scientific urethral strictures. Peyronie’s disease constriction rings, vacuum pumps, and literature review from 1996 to June involves the formation of hardened penile splints to reduce user and partner 2003, which continued to show that the tissue in the penis that causes pain, injury. The guidance document devices are safe and effective when used curvature, and distortion, usually addresses manual safety release properly. Serious complications are during erection. Priaprism is the mechanisms and shape and surface rare. FDA also believes that a special persistent, usually painful erection of designs that do not promote extended controls guidance document with the penis as a consequence of disease. continuous use. labeling recommendations addressing A urethral stricture is an area of proper usage, along with the general 2. Aggravation of Certain Existing controls, would provide reasonable hardened tissue which narrows the Medical Conditions urethra and may cause pain and assurance of the safety and effectiveness difficulty in urination. Increased The use of vacuum pumps or of the devices. In this proposal, the pressure from a vacuum pump or constriction rings may aggravate certain agency is giving notice of its intent to constriction ring may exacerbate the existing medical conditions such as exempt the devices from premarket symptoms of these medical conditions. Peyronie’s disease, priaprism, or notification requirements. urethral strictures. The guidance FDA believes that the device 3. Infection/Adverse Tissue Reactions document recommends additional description recommended by the Panel The materials used in external penile labeling precautions specific to vacuum in 1997 should reflect more accurately rigidity devices may present a risk to pumps and constriction rings to the intended use of the devices. FDA health when in contact with skin by minimize the risk to users with the proposes that the device identification causing adverse tissue reactions with previously mentioned medical read as follows: External penile rigidity respect to cytotoxicity, sensitization, or conditions. devices are devices intended to create or maintain sufficient penile rigidity for irritation. Infection is also a potential 3. Infection/Adverse Tissue Reactions risk as a result of injury or inadequate sexual intercourse. External penile cleaning of the devices. a. Labeling. The labeling rigidity devices include vacuum pumps, recommendations for reducing tissue constriction rings, and penile splints, F. Special Control injury or trauma also will help reduce which are mechanical, powered, or FDA believes that FDA’s guidance the risk of infection as a result of tissue pneumatic devices. injury. The section on general labeling document entitled ‘‘Class II Special V. Environmental Impact Controls Guidance Document: External of external penile rigidity devices Penile Rigidity Devices; Guidance for provides for manufacturers to include The agency has determined under 21 Industry and FDA Staff’’ can provide instructions for cleaning the devices to CFR 25.34(b) that this proposed reasonable assurance of the safety and minimize the risk of infection from classification action is of a type that effectiveness of external penile rigidity contaminated sources. does not individually or cumulatively devices. FDA agrees with the Panel that b. Design features. The section on have a significant effect on the human specific labeling recommendations and design features contains environment. Therefore, neither an adequate instructions for users are recommendations for conformance to environmental assessment nor an appropriate special controls. FDA international standards for materials environmental impact statement is believes that guidance on device design, used in constriction rings, vacuum required. in combination with labeling pumps, and penile splints to avoid VI. Analysis of Impacts instructions, will also help assure a adverse tissue reactions regarding reasonable assurance of safety and cytotoxicity, sensitization, and FDA has examined the impacts of the effectiveness. irritation. Design features include proposed rule under Executive Order The guidance document addresses recommendations for device shape and 12866, the Regulatory Flexibility Act (5 Panel and agency concerns about tissue surface design as well as safety to U.S.C. 601–612), and the Unfunded injury and trauma, aggravation of minimize the risk of injury and the Mandates Reform Act of 1995 (Public existing medical conditions such as potential risk of infection to injured Law 104–4). Executive Order 12866 Peyronie’s disease, priaprism, and tissue. directs agencies to assess all costs and urethral strictures, and infection/ benefits of available regulatory adverse tissue reactions. IV. Proposed Classification alternatives and, when regulation is FDA agrees with the Panel’s necessary, to select regulatory 1. Tissue Injury and Trauma recommendation to classify these approaches that maximize net benefits a. Labeling. The section addressing devices into class II (special controls). (including potential economic, general labeling provisions for external FDA believes that classifying external environmental, public health and safety, penile rigidity devices will help penile rigidity devices into class II is and other advantages; distributive minimize tissue injury and trauma due appropriate because special controls, in impacts; and equity). The agency to user misuse by providing addition to general controls, would believes that this proposed rule is comprehensive instructions for use in provide reasonable assurance of the consistent with the regulatory language written and formatted for the safety and effectiveness of these devices, philosophy and principles identified in lay person. The instructions should and there is sufficient information to the Executive order. In addition, the provide the following information: (1) establish special controls to provide this proposed rule is not a significant How to size, place, operate, and remove assurance. regulatory action as defined by the the device, (2) potential risks and Additionally, the agency believes that Executive order and so is not subject to hazards associated with using the premarket notification is not necessary review under the Executive order.

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The Regulatory Flexibility Act List of Subjects in 21 CFR Part 876 DEPARTMENT OF HOMELAND requires agencies to analyze regulatory SECURITY options that would minimize any Medical devices. significant impact of a rule on small Therefore, under the Federal Food, Coast Guard entities. This proposed rule will relieve Drug, and Cosmetic Act and under a burden and simplify the marketing of authority delegated to the Commissioner 33 CFR Part 117 these devices by exempting the devices of Food and Drugs, FDA proposes that [CGD07–04–037] from premarket notification 21 CFR part 876 be amended to read as RIN 1625–AA09 requirements. The guidance document follows: is based on existing review practices Drawbridge Operation Regulations; and will not impose new burdens on PART 876—GASTROENTEROLOGY– Hobe Sound Bridge (SR 708), Atlantic manufacturers of these devices. The UROLOGY DEVICES agency, therefore, certifies that the Intracoastal Waterway, mile 996.0, Hobe Sound, Martin County, FL proposed rule will not have a significant 1. The authority citation for 21 CFR economic impact on a substantial part 876 continues to read as follows: AGENCY: Coast Guard, DHS. number of small entities. Therefore, ACTION: Notice of proposed rulemaking. under the Regulatory Flexibility Act, no Authority: 21 U.S.C. 351, 360, 360c, 360e, further analysis is required. 360j, 360l, 371. SUMMARY: The Coast Guard proposes to 2. Section 876.1 is amended by VII. Submission of Comments change the operating regulations of the adding paragraph (e) to read as follows: Hobe Sound Bridge (SR 708) across the You may submit written or electronic Atlantic Intracoastal Waterway, mile comments regarding this proposal to the § 876.1 Scope. 996.0 in Hobe Sound, Florida. This Division of Dockets Management (see * * * * * proposed rule would require the ADDRESSES). Submit a single copy of (e) Guidance documents referenced in drawbridge to open on a 20-minute electronic comments or two paper schedule from 7 a.m. to 6 p.m., daily. copies of any mailed comments, except this part are available on the Internet at http://www.fda.gov/cdrh/guidance.html. This proposed action would improve that individuals may submit one paper the movement of vehicular traffic while copy. You should identify comments 3. Section 876.5020 is added to not unreasonably interfering with the with the docket number found in subpart F to read as follows: movement of vessel traffic. brackets in the heading of this § 876.5020 External penile rigidity devices. DATES: Comments and related material document. Any comments FDA receives must reach the Coast Guard on or before will be available in the Division of (a) Identification. External penile May 17, 2004. Dockets Management between 9 a.m. rigidity devices are devices intended to ADDRESSES: You may mail comments and 4 p.m., Monday through Friday. create or maintain sufficient penile and related material to Commander VIII. Paperwork Reduction Act of 1995 rigidity for sexual intercourse. External (obr), Seventh Coast Guard District, 909 penile rigidity devices include vacuum FDA concludes that this proposed S.E. 1st Avenue, Room 432, Miami, FL, rule contains no collection of pumps, constriction rings, and penile 33131, who maintains the public docket information that is subject to review by splints which are mechanical, powered, for this rulemaking. Comments and the Office of Management and Budget or pneumatic devices. material received from the public, as under the Paperwork Reduction Act of (b) Classification. Class II (special well as documents indicated in this 1995. controls). The devices are exempt from preamble as being available in the docket, will become part of this docket IX. Proposed Effective Date the premarket notification procedures in subpart E of part 807 of this chapter and are available for inspection or FDA is proposing that any final rule subject to the limitations in § 876.9. The copying at Commander (obr), Seventh Coast Guard District, between 7:30 a.m. based on this proposal become effective special control for these devices is the and 4 p.m., Monday through Friday, 30 days after the date of its publication FDA guidance document entitled ‘‘Class except Federal holidays. in the Federal Register. II Special Controls Guidance Document: FOR FURTHER INFORMATION CONTACT: X. References External Penile Rigidity Devices; Draft Mr. Michael Lieberum, Project Officer, Guidance for Industry and FDA.’’ See The following references have been Seventh Coast Guard District, Bridge § 876.1(e) for the availability of this placed on display in the Division of Branch, at (305) 415–6744. guidance document. Dockets Management (see ADDRESSES) SUPPLEMENTARY INFORMATION: and may be seen by interested persons Dated: March 4, 2004. Request for Comments between 9 am. and 4 pm., Monday Beverly Chernaik Rothstein, through Friday. We encourage you to participate in 1. Gastroenterology and Urology Devices Acting Deputy Director for Policy and Regulations, Center for Devices and this rulemaking by submitting Panel of the Medical Devices Advisory comments and related material. If you Committee transcript, August 7, 1997. Radiological Health. 2. Lewis, J. H. et al., ‘‘A Way to Help Your [FR Doc. 04–5983 Filed 3–16–04; 8:45 am] do so, please include your name and address, identify the docket number for Patients Who Use Vacuum Devices,’’ BILLING CODE 4160–01–S Contemporary Urology, vol. 3, No. 12: 15–24, this rulemaking [CGD07–04–037], 1991. indicate the specific section of this 3. Montague, D. K. et al., ‘‘Clinical document to which each comment Guidelines Panel on Erectile Dysfunction; applies, and give the reason for each Summary Report on the Treatment of Erectile comment. Please submit all comments Dysfunction,’’ Journal of Urology, 156, 2007– 2011, 1996. and related material in an unbound 1 4. ‘‘NIH Consensus Statement-Impotence,’’ format, no larger than 8 ⁄2 by 11 inches, National Institutes of Health, vol. 10, No. 4, suitable for copying. If you would like 1992. to know they reached us, please enclose

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a stamped, self-addressed postcard or The need for a seasonal summer and may be small entities: the owners or envelope. We will consider all winter schedule does not appear to have operators of vessels needing to transit comments and material received during any additional benefits for either vehicle the Intracoastal Waterway in the the comment period. We may change or vessel traffic in this area as the prior vicinity of Hobe Sound Bridge, persons this proposed rule in view of them. traffic counts did not significantly differ intending to drive over the bridge and between the summer and winter Public Meeting nearby business owners. The proposed seasons. However, we may request rule offers frequent, scheduled openings We do not now plan to hold a public additional traffic counts based on for vessel traffic, 3 times per hour from meeting. But you may submit a request comments related to this NPRM. One 7 a.m. to 6 p.m., and will meet the for a meeting by writing to the Bridge comment requested an exemption for reasonable needs of navigation Branch at the address under ADDRESSES commercial vessels. However, with the throughout the affected times. Vehicle explaining why one would be exception of tugs and tugs with tows traffic and small business owners in the beneficial. If we determine that one and Public Vessels of the United States, area will benefit from the increased would aid this rulemaking, we will hold the Coast Guard does not normally traffic flow that regularly scheduled one at a time and place announced by exempt classes of vessels from openings will offer this area. a later notice in the Federal Register. regulations governing bridge operations. If you think that your business, organization, or governmental Background and Purpose Discussion of Proposed Rule jurisdiction qualifies as a small entity The existing regulations of the Hobe This proposed rule would require the and that this rule would have a Sound Bridge (SR 708), mile 996.0, at Hobe Sound Bridge (SR 708), mile significant economic impact on it, Hobe Sound, published in 33 CFR 117.5 996.0, at Hobe Sound to open on signal; please submit a comment (see require the draw to open on signal. except that, from 7 a.m. to 6 p.m., the ADDRESSES) explaining why you think it On June 18, 2002, the Town of Jupiter draw need open only on the hour, 20 Island requested that the Coast Guard qualifies and how and to what degree minutes after the hour, and 40 minutes this proposed rule would economically review the existing regulations after the hour. governing the operation of the Hobe affect it. Sound Bridge, because the Town Regulatory Evaluation Assistance for Small Entities contended that those regulations were This proposed rule is not a Under section 213(a) of the Small not meeting the needs of vehicle and ‘‘significant regulatory action’’ under Business Regulatory Enforcement vessel traffic. section 3(f) of Executive Order 12866, Fairness Act of 1996 (Pub. L. 104–121), On August 28, 2002, the Coast Guard Regulatory Planning and Review, and we want to assist small entities in issued a test deviation published in the does not require an assessment of understanding this proposed rule so that Federal Register (67 FR 55115). This potential costs and benefits under they can better evaluate its effects on test deviation was effective from section 6(a)(3) of that Order. The Office them and participate in the rulemaking. November 1, 2002, until January 27, of Management and Budget has not If the rule would affect your small 2003. The test deviation allowed a reviewed it under that Order. It is not business, organization, or governmental change to the current bridge regulations ‘‘significant’’ under the regulatory jurisdiction and you have questions by allowing the bridge to open on the policies and procedures of the concerning its provisions or options for hour, 20 minutes after the hour, and 40 Department of Homeland Security compliance, please contact the person minutes after the hour from 7 a.m. to 6 (DHS). listed under FOR FURTHER INFORMATION p.m. daily. We received 67 comments in We expect the economic impact of CONTACT. reference to this deviation. Sixty this proposed rule to be so minimal that comments were for the 20 minute a full Regulatory Evaluation under the Collection of Information schedule; three comments requested regulatory policies and procedures of This proposed rule would call for no that the schedule be changed to an hour DHS is unnecessary. This proposed rule new collection of information under the and half-hour; two comments were would modify the existing bridge Paperwork Reduction Act of 1995 (44 against the proposed schedule; and one schedule to allow for efficient vehicle U.S.C. 3501–3520). of those requested that, if it were to be traffic flow and provide scheduled made permanent, it be limited to the openings for vessel traffic. Federalism winter season. One comment requested A rule has implications for federalism a permanent exemption from the Small Entities under Executive Order 13132, regulations for all commercial vessels Under the Regulatory Flexibility Act Federalism, if it has a substantial direct and one comment suggested (5 U.S.C. 601–612), we have considered effect on State or local governments and enforcement of current regulations. whether this proposed rule would have would either preempt State law or The Coast Guard proposes to make the a significant economic impact on a impose a substantial direct cost of 20-minute schedule published in the substantial number of small entities. compliance on them. We have analyzed test deviation permanent, based on prior The term ‘‘small entities’’ comprises this proposed rule under that Order and bridge logs, which indicated that the small business, not-for-profit have determined that it does not have bridge opened two to three times an organizations that are independently implications for federalism. hour, and comments received from the owned and operated and are not public during the test deviation period. dominant in their fields, and Unfunded Mandates Reform Act This proposed schedule may benefit governmental jurisdictions with The Unfunded Mandates Reform Act both vessel and vehicle traffic by populations of less than 50,000. of 1995 (2 U.S.C. 1531–1538) requires allowing for the opportunity to plan The Coast Guard certifies under 5 Federal agencies to assess the effects of trips in conjunction with the 20-minute U.S.C. 605(b) that this proposed rule their discretionary regulatory actions. In scheduled bridge openings. The hour would not have a significant economic particular, the Act addresses actions and half schedule suggested by three impact on a substantial number of small that may result in the expenditure by a comments appears to place additional entities. This proposed rule would affect State, local, or tribal government, in the unnecessary restrictions on navigation. the following entities, some of which aggregate, or by the private sector of

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$100,000,000 or more in any one year. M16475.1D, which guides the Coast ENVIRONMENTAL PROTECTION Though this proposed rule will not Guard in complying with the National AGENCY result in such an expenditure, we do Environmental Policy Act of 1969 discuss the effects of this rule elsewhere (NEPA) (42 U.S.C. 4321–4370f), and 40 CFR Parts 60 and 63 in this preamble. have concluded that there are no factors [FRL–7637–7] Taking of Private Property in this case that would limit the use of a categorical exclusion under section Supplemental Notice and Extension of This proposed rule would not affect a 2.B.2 of the Instruction. Therefore, this the Comment Period for the Proposed taking of private property or otherwise proposed rule is categorically excluded, National Emission Standards for have taking implications under under figure 2–1, paragraph (32)(e) of Hazardous Air Pollutants; and, in the Executive Order 12630, Governmental the Instruction, from further Alternative, Proposed Standards of Actions and Interference with environmental documentation. Under Performance for New and Existing Constitutionally Protected Property Stationary Sources: Electric Utility figure 2–1, paragraph (32)(e) of the Rights. Steam Generating Units Instruction, an ‘‘Environmental Analysis Civil Justice Reform Check List’’ and a ‘‘Categorical AGENCY: Environmental Protection This proposed rule meets applicable Exclusion Determination’’ are not Agency (EPA). standards in sections 3(a) and 3(b)(2) of required for this proposed rule. ACTION: Announcement of public Executive Order 12988, Civil Justice hearing and extension of public List of Subjects in 33 CFR Part 117 Reform, to minimize litigation, comment period. eliminate ambiguity, and reduce Bridges. SUMMARY: burden. The EPA is announcing that Regulations a public hearing will be held for the Protection of Children Supplemental Notice of Proposed Rule We have analyzed this proposed rule For the reasons discussed in the (Supplemental Proposal) for the January under Executive Order 13045, preamble, the Coast Guard proposes to 30, 2004, Proposed National Emission Protection of Children from amend 33 CFR part 117 as follows: Standards for Hazardous Air Pollutants Environmental Health Risks and Safety (69 FR 4652); and, in the Alternative, Risks. This rule is not an economically PART 117—DRAWBRIDGE Proposed Standards of Performance for significant rule and would not create an OPERATION REGULATIONS New and Existing Stationary Sources: environmental risk to health or risk to Electric Utility Steam Generating Units safety that might disproportionately 1. The authority citation for Part 117 (Proposed Utility Mercury Reductions affect children. continues to read as follows: Rule). Authority: 33 U.S.C. 499; Department of The Supplemental Proposal includes Indian Tribal Governments Homeland Security Delegation No. 0170.1; 33 a model cap and trade program and This proposed rule does not have CFR 1.05–1(g); section 117.255 also issued monitoring and reporting requirements tribal implications under Executive under the authority of Pub. L. 102–587, 106 for the January 30, 2004, proposal. The Order 13175, Consultation and Stat. 5039. Supplemental Proposal was signed by Coordination with Indian Tribal the EPA Administrator on February 25, Governments, because it would not have 2. Add § 117.261(q) to read as follows: 2004, and is posted on the EPA Web site a substantial direct effect on one or (provided under ADDRESSES). § 117.261 Atlantic Intracoastal Waterway The public hearing will be held in more Indian tribes, on the relationship from St. Marys River to Key Largo. between the Federal Government and Denver, Colorado. The hearing is Indian tribes, or on the distribution of * * * * * scheduled for March 31, 2004. Persons power and responsibilities between the (q) Hobe Sound Bridge (SR 708), mile wishing to present oral testimony for the Federal Government and Indian tribes. 996.0, at Hobe Sound. The draw shall Supplemental Proposal may do so at this hearing. Details of the hearing are Energy Effects open on signal; except that, from 7 a.m. to 6 p.m., the draw need open only on reiterated below. We have analyzed this proposed rule the hour, 20 minutes after the hour, and DATES: Public Hearing. The public under Executive Order 13211, Actions 40 minutes after the hour. hearing will be held on March 31, 2004. Concerning Regulations That Comments. The public comment Significantly Affect Energy Supply, * * * * * period for the Proposed Utility Mercury Distribution, or Use. We have Dated: February 13, 2004. Reductions Rule, which was published determined that it is not a ‘‘significant Harvey E. Johnson, Jr., on January 30, 2004, is extended to April 30, 2004, in order to provide the energy action’’ under that order because Rear Admiral, U.S. Coast Guard, Commander, public additional time to submit it is not a ‘‘significant regulatory action’’ Seventh Coast Guard District. comments and supporting information. under Executive Order 12866 and is not [FR Doc. 04–6049 Filed 3–16–04; 8:45 am] likely to have a significant adverse effect ADDRESSES: Public Hearing. The hearing on the supply, distribution, or use of BILLING CODE 4910–15–P will be held at the following location: energy. It has not been designated by the Hyatt Regency Denver, 1750 Welton Administrator of the Office of Street, Denver, Colorado, 80202, (303) Information and Regulatory Affairs as a 295–1234. significant energy action. Therefore, it Comments. Written comments on the does not require a Statement of Energy Supplemental Proposal may also be Effects under Executive Order 13211. submitted to EPA electronically, by mail, by facsimile, or through hand Environment delivery/courier. Please refer to the We have analyzed this proposed rule proposal for the addresses and detailed under Commandant Instruction instructions.

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Docket. Documents relevant to this scheduled for March 31, 2004. Persons Dated: March 9, 2004. action are available for public wishing to present oral testimony on the Jeffrey R. Holmstead, inspection at the EPA Docket Center, Supplemental Proposal may do so. The Assistant Administrator for Air and located at 1301 Constitution Avenue, meeting facilities and their phone Radiation. NW., Room B102, Washington, DC numbers are provided above under [FR Doc. 04–6093 Filed 3–16–04; 8:45 am] between 8:30 a.m. and 4:30 p.m., ADDRESSES. BILLING CODE 6560–50–P Monday through Friday, excluding legal If you would like to present oral holidays. A reasonable fee may be testimony at the hearing, please notify charged for copying. Documents are also Ms. Kelly Hayes at (919) 541–5578 no ENVIRONMENTAL PROTECTION available through EPA’s electronic later than March 26, 2004. She will AGENCY Docket system at http://www.epa.gov/ provide you with a specific time and 40 CFR Part 300 edocket. date to speak. Worldwide Web. The EPA Web site for The public hearing will begin each [FRL–7637–3] this rulemaking, which includes the day at 8 a.m. and continue into the Supplemental Proposal and information National Oil and Hazardous evening until 9 p.m., or later if about the public hearing, is at http:// Substances Pollution Contingency necessary, depending on the number of www.epa.gov/mercury. Plan; National Priorities List speakers. The EPA is scheduling lunch FOR FURTHER INFORMATION CONTACT: If breaks from 12:30 until 2 p.m. and AGENCY: Environmental Protection you would like to speak at the public dinner breaks from 6 to 7:30 p.m. Agency. hearing or have questions concerning Oral testimony will be limited to a ACTION: Notice of intent to delete the the public hearing, please contact Ms. Hooker-102nd Street Superfund Site Kelly Hayes at the address given below total of 10 minutes per commenter to address the Supplemental Proposal. We from the National Priorities List. under SUPPLEMENTARY INFORMATION or at will not be providing equipment for (919) 541–5578. Questions concerning SUMMARY: The Environmental Protection commenters to show overhead slides or the Supplemental Proposal should be Agency (the ‘‘EPA’’ or the ‘‘Agency’’), make computerized slide presentations addressed to William Maxwell, U.S. Region 2, announces its intent to delete unless we receive special requests in EPA, Office of Air Quality Planning and the Hooker-102nd Street Superfund Site advance. Commenters should notify Ms. Standards, Emission Standards (Site) from the National Priorities List Kelly Hayes if they will need specific Division, Combustion Group (C439–01), (NPL) and requests public comment on equipment. The EPA encourages Research Triangle Park, NC 27711, this action. commenters to provide written versions telephone number (919) 541–5430, e- The NPL is Appendix B of the; of their oral testimonies either mail at [email protected]. For National Oil and Hazardous Substances electronically on computer disk or CD information on section 111 Hg Model Pollution Contingency Plan (NCP), 40 ROM or in paper copy. Trading Rule contact Mary Jo Krolewski, CFR Part 300, which the EPA U.S. EPA, 1200 Pennsylvania Ave. (MC The hearing schedules, including lists promulgated pursuant to Section 105 of 6204J), Washington, DC 20460, of speakers, will be posted on EPA’s the Comprehensive Environmental telephone number (202) 343–9847, fax Web pages for the rulemakings at http:/ Response, Compensation, and Liability number (202) 343–2358, electronic mail /www.epa.gov/mercury prior to the Act of 1980 (CERCLA), as amended. The (e-mail) address, hearing. Verbatim transcripts of the EPA and New York State, through its [email protected]. For hearing and written statements will be Department of Environmental information on the part 75 Hg included in the rulemaking docket. Conservation (NYSDEC) have monitoring requirements contact Ruben Comment Period determined that all appropriate Deza, U.S. EPA, 1200 Pennsylvania Ave. response actions under CERCLA have (MC 6204J), Washington, DC 20460, Due to the many requests we have been implemented and that no further telephone number (202) 343–3956, fax received from both the public and response actions, other than operation, number (202) 343–2358, electronic mail members of Congress to extend the maintenance, and monitoring, are (e-mail) address, [email protected]. public comment period for the January required. Moreover, the EPA and the SUPPLEMENTARY INFORMATION: 30, 2004, Proposed Utility Mercury NYSDEC have determined that the Site Reduction Rule to reduce air emissions no longer poses a significant threat to Public Hearing of mercury and nickel, EPA is extending public health or the environment. The The public hearing will provide the public comment period by 30 days. Site is located in the City of Niagara interested parties the opportunity to Therefore, the public comment period Falls, Niagara County, New York. present data, views, or arguments will end on April 30, 2004, rather than DATES: The EPA will accept comments concerning the Supplemental Proposal. March 30, 2004. concerning its intent to delete on or The EPA may ask clarifying questions How Can I Get Copies of This before April 16, 2004. during the oral presentations, but will Document and Other Related ADDRESSES: Comments should be not respond to the presentations at that Information? mailed to: Paul J. Olivo, Hooker-102nd time. Written statements and supporting Street Site Remedial Project Manager, information submitted during the The EPA has established the official U.S. Environmental Protection Agency, comment period will be considered public docket for the Supplemental Region 2, 290 Broadway, 20th Floor, with the same weight as any oral Proposal and the Utility Mercury New York, New York 10007–1866. comments and supporting information Reductions Rule under Docket ID No. Comprehensive information on the presented at the public hearing. Written OAR–2002–0056. The EPA has also Site is available for viewing, by comments must be postmarked by the developed Web sites for these appointment only, at: U.S. last day of the comment period, as rulemakings at the addresses given Environmental Protection Agency, specified in the Supplemental Proposal. above. Please refer to the Supplemental Region 2, Superfund Records Center, The public hearing will be held in Proposal for details on accessing 290 Broadway, Room 1828, New York, Denver, Colorado. The hearing is information related to that action. New York 10007–1866, (212) 637–4308.

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Hours: Monday through Friday: 9 a.m. (iii) A remedial investigation has shown IV. Basis for Intended Site Deletion through 5 p.m. that the release poses no significant The following summary provides a Information on the Site is also threat to public health or to the brief description and history of the Site available for viewing at the Site environment and, therefore, taking and the Agency’s rationale for Administrative Record Repository remedial measures is not recommending deletion of the Site from located at: U.S. EPA Public Information appropriate. the NPL. Office, 345 Third Street, Suite 530, III. Deletion Procedures The Site consists of two land parcels Niagara Falls, New York 14303, Tel. totaling 22.1 acres. The Occidental The following procedures apply to the (716) 285–8842. Hours: Monday through Chemical Corporation (OCC), formerly deletion of this Site: Friday: 8 a.m. to 4:30 p.m. the Hooker Chemical and Plastics FOR FURTHER INFORMATION CONTACT: Mr. 1. The EPA, Region 2, issued a Record of Decision (ROD) for the Site on Corporation, owns 15.6 acres, and the Olivo at the address above, by telephone remaining 6.5 acres are owned by the at (212) 637–4280, by electronic mail at September 26, 1990, which selected the remedy for the Site. The ROD was Olin Chemical Corporation (Olin). The [email protected], or by FAX at (212) Site is located on Buffalo Avenue in 637–4284. amended on June 9, 1995. 2. Responsible parties implemented Niagara Falls, Niagara County, New SUPPLEMENTARY INFORMATION the remedy selected in the amended York. It borders on the Niagara River, CONCERNING THE HOOKER (102ND STREET) ROD as described in a Final Closeout and lies less than one-quarter of a mile SITE: Report dated September 8, 2003. south of the Love Canal Superfund Site. Table of Contents 3. The EPA, Region 2, recommends It is separated from the Love Canal Site I. Introduction deletion and has prepared the relevant by the LaSalle Expressway, Buffalo II. NPL Deletion Criteria documents. Avenue and Frontier Avenue. III. Deletion Procedures 4. The State of New York, through the Since the mid-1940s, the Site was IV. Basis for Intended Site Deletion NYSDEC, concurred with the proposed used as an industrial waste landfill. In deletion of the Site in a letter dated the early 1970s, landfilling operations at I. Introduction September 29, 2003. the Site were stopped. OCC and Olin The Environmental Protection Agency 5. A notice has been published in a remain as the current owners of the Site. (EPA), Region 2, announces its intent to local newspaper, and in addition, a During the period of active waste delete the Hooker-102nd Street notice has been distributed to disposal at the Site, OCC and Olin Superfund Site (Site) from the National appropriate Federal, State or local deposited at least 159,000 tons of Priorities List (NPL) and requests public officials, and other interested parties wastes, in both liquid and solid forms, comment on this deletion. The EPA announcing a thirty-day public into the landfill. These deposits maintains the NPL as a list of sites that comment period which starts on the included approximately 4,600 tons of appear to present a significant risk to date of publication of this notice in the benzene, chlorobenzene, chlorophenols, public health, or the environment. As Federal Register and a newspaper of and hexachlorocyclohexanes, all of described in § 300.425(e)(3) of the NCP, record. which are hazardous substances. a site deleted from the NPL remains 6. The EPA has made available the In 1979, the U.S. Department of eligible for Fund-financed remedial relevant documents to this decision at Justice, on behalf of the EPA, filed a actions, if conditions at the site warrant the addresses listed above. lawsuit against OCC and Olin, two such action. 7. Upon completion of the thirty-day potentially responsible parties (PRPs) The EPA will accept comments public comment period, the EPA will for the Site’s contamination, in order to concerning the deletion of this Site from evaluate all comments received before put an end to the continuing discharges the NPL for thirty (30) days after issuing a final decision on deletion. The and to clean up Site contamination. The publication of this document in the EPA, Region 2, will prepare a PRPs, with EPA and NYSDEC guidance, Federal Register. Responsiveness Summary, if agreed to conduct a study into the Section II of this document explains appropriate, which will address nature and extent of Site contamination the criteria for deleting sites from the significant comments received during and to recommend alternatives for the NPL Section III discusses procedures the public comment period. The cleanup of the Site. that the EPA is using for this action. Responsiveness Summary will be made The investigation included the Section IV discusses how the Site meets available to the public at the landfill residues, contaminated fill in an the NPL deletion criteria. information repositories. area outside the landfill, shallow ground 8. If, after consideration of the water, bedrock ground water, liquid II. NPL Deletion Criteria comments received, the EPA decides to waste, soil, river sediments, and storm Section 300.425(e) of the NCP proceed with the deletion, the EPA will drains. The investigation was completed provides that sites may be deleted from place a Notice of Deletion in the Federal in 1990. the NPL where no further response is Register. Deletion does not occur until In September 1990, the EPA selected appropriate. In making this the final Notice of Deletion is published a remedy which included the determination, the EPA, in consultation in the Federal Register. Generally, the installation of a synthetic-lined cap; with the NYSDEC, will consider NPL will reflect deletions in the next consolidation of contaminated soils whether any of the following criteria has final update following the final Notice beneath the cap; surrounding the waste been met: publication. mass with a slurry wall; dredging and (i) Responsible parties or other persons Deletion of a site from the NPL does incineration of highly contaminated have implemented all appropriate not, by itself, alter, or revoke any sediments; dredging, dewatering, and response actions required; or, individual’s rights or obligation. consolidation, beneath the cap, of the (ii) All appropriate Fund-financed Deletion of a site from the NPL does not remaining contaminated sediments; responses under CERCLA have been alter the EPA’s right to take appropriate recovery and treatment of ground water; implemented, and no further enforcement actions. The NPL is incineration of any recovered NAPL response action by responsible primarily for informational purposes (non-aqueous phase liquids); parties is appropriate; or, and to assist EPA management. monitoring; and restricting access to the

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Site by the installation of additional the terms of the Consent Decree, the ENVIRONMENTAL PROTECTION security fencing. PRPs agreed to implement the long-term AGENCY In September 1991, the EPA issued O&M for the Site and reimbursed to the the PRPs an Administrative Order to EPA $6,800,000 of its past costs plus 40 CFR Part 300 conduct the remedial design and the interest. Additionally, OCC and Olin [FRL–7619–5] remedial action. The two PRPs agreed to implemented institutional controls in comply with the Order. Design of the the form of deed notifications that the National Oil and Hazardous EPA-selected remedy was begun in Site property was subject to the terms of Substances Pollution Contingency October 1991. The Intermediate the Consent Decree, and use restrictions Plan; National Priorities List Engineering Report (IER) was approved that run with the land that prohibit by the EPA on August 31, 1993. AGENCY: Environmental Protection future uses of the property such as However, certain concerns raised by the Agency. groundwater extraction or excavation federal and state natural resource ACTION: that could adversely affect the remedy Notice of intent to delete the trustees caused the EPA to reexamine Niagara County Refuse Superfund Site for the Site. These institutional controls the remedial design as proposed in the from the National Priorities List. IER. As a result of the reexamination, are recorded in the property records of the September 1990 ROD was amended Niagara County. SUMMARY: The Environmental Protection in June 1995. The amendment The Site no longer poses a significant Agency (EPA), Region 2, announces its eliminated the incineration contingency threat to human health or the intent to delete the Niagara County whereby all highly contaminated environment. However, hazardous Refuse Superfund Site (Site) from the sediments in an embayment area in the substances remain at the Site above National Priorities List (NPL) and Niagara River adjacent to the landfill levels that would allow for unlimited requests public comment on this action. would have had to be excavated and use with unrestricted exposure. The Niagara County Refuse Superfund incinerated were they to remain outside Pursuant to Section 121(c) of CERCLA, Site is located in the Town of the final positioning of the slurry wall. the EPA and/or the State will review Wheatfield, Niagara County, New York. The slurry wall was in fact redesigned Site remedies no less often than every The NPL is appendix B of the National so as to be positioned to run as close to Oil and Hazardous Substances Pollution five years. The first Five-Year Review the shoreline as was practical and still Contingency Plan (NCP), 40 CFR part for this Site was signed by the EPA on contain any migration of the NAPL 300, which EPA promulgated pursuant plumes. Remedial action activity began August 15, 2001, and concluded that the to section 105 of the Comprehensive in April 1996. The construction of the response actions implemented at the Environmental Response, slurry wall was completed in 1996 along Site are in accordance with the remedy Compensation, and Liability Act of 1980 with excavation of contaminated selected by the EPA and that the remedy (CERCLA), as amended. EPA and New sediments from the embayment and continues to be protective of human York State, through the Department of consolidation of these sediments into health and the environment. The next Environmental Conservation (NYSDEC) the landfill. The installation of the Five-Year Review will be completed have determined that all appropriate permanent cap over the landfill was before August 2006. response actions have been completed during the 1997 construction Public participation activities for this implemented and no further response season. Site have been satisfied as required in actions, other than operation, The remedy for the Site was maintenance, and monitoring, are completed in March 1999 when the CERCLA Section 113(k), 42 U.S.C. 9613(k), and Section 117, 42 U.S.C. required. In addition, EPA and the forcemain system for pumping leachate NYSDEC have determined that the Site from the landfill to the Love Canal 9617. The ROD was subject to a public review process. All other documents is protective of public health, welfare, Treatment Facility became operational. and the environment. A Preliminary Closeout Report (PCOR) and information which the EPA relied DATES: was approved by the EPA on September on, or considered in recommending this EPA will accept comments 2, 1999. The PCOR documented the fact deletion are available for the public to concerning its intent to delete on or that all construction activities identified review at the information repositories. before April 16, 2004. ADDRESSES: as necessary remedial actions for the One of the three criteria for site Comments should be submitted to: Michael J. Negrelli, Site pursuant to the ROD, as amended, deletion is when ‘‘responsible parties or Remedial Project Manager, U.S. had been completed. The forcemain other persons have implemented all system continues to pump sufficient Environmental Protection Agency, appropriate response actions required’’ Region 2, 290 Broadway, 20th Floor, leachate from the landfill so as to (40 CFR 300.425(e)(1)(i)). The EPA, with maintain an inward gradient across the New York, New York 10007–1866. the concurrence of the State of New slurry wall. The leachate pumping Comprehensive information on the York, through the NYSDEC, believes system reached the steady-state phase in Site is available for viewing, by November 2000. that this criterion for deletion has been appointment only, at: U.S. An Operation and Maintenance met. Consequently, the EPA is Environmental Protection Agency, (O&M) Manual was developed and proposing deletion of this Site from the Region 2, Superfund Records Center, implemented. Annual reports are NPL. 290 Broadway, Room 1828, New York, provided to the EPA and the NYSDEC Dated: March 4, 2004. New York 10007–1866, (212) 637–4308, and both the EPA and the NYSDEC Kathleen C. Callahan, Hours: Monday through Friday: 9 a.m. believe that the reports for 2001 and through 5 p.m. Acting Regional Administrator, Region 2. 2002 confirm that the remedy for the Information on the Site is also Site has been successfully implemented. [FR Doc. 04–5873 Filed 3–16–04; 8:45 am] available for viewing at the Site A Consent Decree between EPA and BILLING CODE 6560–50–M Administrative Record Repository the State of New York and OCC and located at: North Tonawanda Public Olin was approved and entered by a Library, 505 Meadow Road, North federal court on October 1, 1999. Under Tonawanda, New York 14120, Tel. (716)

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693–4132, Hours: Monday through implemented, and no further response The Niagara County Refuse site is a Thursday: 9:30 a.m. through 9 p.m., action by responsible parties is former municipal landfill, comprised of Friday and Saturday 9:30 a.m. through appropriate; or, approximately 65 acres, located along 5 p.m. (iii) A remedial investigation has the eastern border of the Town of Site information is also available for shown that the release poses no Wheatfield, New York and the western viewing at the following location: U.S. significant threat to public health or to border of the City of North Tonawanda. EPA Public Information Office, 345 the environment and, therefore, taking The southern edge of the Site lies Third Street, Suite 530, Niagara Falls, remedial measures is not appropriate. approximately 500 feet north of the New York 14303, Tel. (716) 285–8842, III. Deletion Procedures Niagara River. Hours: Monday through Friday: 8 a.m. During the landfill’s operational to 4:30 p.m. The following procedures apply to the period (1968–1976), the Niagara County FOR FURTHER INFORMATION CONTACT: Mr. deletion of this Site: Refuse Disposal District (NCRDD) Negrelli at the address provided above, 1. EPA, Region 2, issued a Record of accepted municipal refuse and by telephone at (212) 637–4278, by Decision (ROD) for the Site on industrial wastes, which are electronic mail at September 24, 1993, which selected the commingled throughout the landfill. [email protected], or by FAX at remedy for the Site. More than 100 waste generators or (212) 637–4284. 2. Responsible parties implemented transporters are thought to have used the remedy selected in the ROD as SUPPLEMENTARY INFORMATION: the Site. Disposed materials included described in a Final Close Out Report heat-treatment salts, plating-tank sludge, Table of Contents dated August 14, 2003. tetrachloroethylene, PVC skins and I. Introduction 3. EPA, Region 2, recommends emulsion, thiazole polymer blends, II. NPL Deletion Criteria deletion and has prepared the relevant polyvinyl alcohol, phenolic resins, and III. Deletion Procedures documents. brine sludge containing mercury. IV. Basis for Intended Site Deletion 4. The State of New York, through the Beginning in 1980, the Site became NYSDEC, concurred with the proposed I. Introduction the focus of several investigations by deletion of the Site in a letter dated EPA, Region 2, announces its intent to EPA, NYSDEC, and the United States September 29, 2003. Geological Survey (USGS) resulting in delete the Niagara County Refuse 5. A notice has been published in a the Site being placed on the National Superfund Site (Site) from the National local newspaper, and in addition, a Priorities List (NPL) and requests public Priorities List (NPL) in September 1983. notice has been distributed to In March 1989, a group of fourteen comment on this action. EPA maintains appropriate Federal, State and local the NPL as the list of sites that appear potentially responsible parties (PRPs) officials, and other interested parties entered into an administrative consent to present a significant risk to public announcing a 30-day public comment health, welfare, or the environment. order with EPA to perform a Remedial period which starts on the date of Investigation/Feasibility Study (RI/FS). Sites on the NPL may be the subject of publication of this notice in the Federal remedial actions financed by the In February 1995, a group of twelve Register and a newspaper of record. PRPs entered into a judicial consent Hazardous Substances Superfund 6. The EPA has made available the decree with the United States on behalf Response Trust Fund (Fund). As relevant documents to this decision at of EPA to conduct the remedial design, described in § 300.425(e)(3) of the NCP, the addresses listed above. remedial construction, operation, any site deleted from the NPL remains 7. Upon completion of the thirty (30) maintenance, and monitoring for the eligible for Fund-financed remedial day public comment period, EPA will Site. EPA signed a Record of Decision actions, if conditions at the site warrant evaluate all comments received before (ROD) for the Site on September 24, such action. issuing a final decision on deletion. The 1993, selecting the remedy for the Site EPA will accept comments EPA, Region 2, will prepare a as follows: concerning the deletion of the Site from Responsiveness Summary, if the NPL for thirty (30) days after appropriate, which will address —Construction of a New York State Part publication of this document in the significant comments received during 360 Standard Landfill Cap; Federal Register. the public comment period. The —Construction of a clay perimeter Section II of this document explains Responsiveness Summary will be made barrier wall; the criteria for deleting sites from the available to the public at the —Construction of a gas venting system NPL. Section III discusses procedures information repositories. beneath the cap; that the EPA is using for this action. If, after consideration of the —Construction of a leachate collection Section IV discusses how the Site meets comments it receives, EPA decides to system; the NPL deletion criteria. proceed with the deletion, EPA will —Removal of the field tile drains located to the west of the landfill; II. NPL Deletion Criteria place a Notice of Deletion in the Federal Register. Deletion does not occur until —Performance of an ecological Section 300.425 (e) of the NCP the final Notice of Deletion is published assessment of the adjacent wetlands; provides that sites may be deleted from in the Federal Register. Generally, the —Implementation of deed and access the NPL where no further response is NPL will reflect deletions in the next restrictions; appropriate. In making this final update following the final notice —Implementation of a long-term determination, EPA, in consultation publication. operation & maintenance program for with the State, shall consider whether the cap, and gas venting and leachate any of the following criteria has been IV. Basis for Intended Site Deletion collection systems; and met: The following summary provides a —Implementation of long-term air and (i) Responsible parties or other brief description and history of the water quality monitoring. persons have implemented all Niagara County Refuse Superfund Site On-site construction at the Site appropriate response actions required; and provides the Agency’s rationale for commenced in November 1998, (ii) All appropriate Fund-financed recommending deletion of the Site from continuing unabated through the next responses under CERCLA have been the NPL. two construction seasons and in

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September 2000, EPA conducted a final criterion for deletion has been met. II public docket contained at: U.S. inspection with NYSDEC and the PRPs. Subsequently, EPA is proposing Environmental Protection Agency, In December 2000, EPA issued its deletion of this Site from the NPL. Region II, Superfund Records Center, approval of the Remedial Action Report. 290 Broadway, Room 1828, New York, List of Subjects in 40 CFR Part 300 The ecological assessment recognized NY 10007–1866, (212) 637–4308. that there were valuable wetlands and Environmental protection, Chemicals, Hours: 9 a.m. to 5 p.m., Monday uplands located on the Site. A Hazardous substances, Hazardous through Friday. restoration plan was developed and waste, Intergovernmental relations, Information on the Site is also implemented to account for the wetland Penalties, Reporting and recordkeeping available for viewing at the following losses incurred by the capping, and 0.17 requirements, Superfund, Water information repository: U.S. acres of wetland were created as part of pollution control, Water Supply. Environmental Protection Agency, 530 the work done at the Site. The success Dated: December 24, 2003. Third Street, Niagara Falls, New York of the restoration effort is described in Kathleen Callahan, 10460, (716) 285–8842. the Site Annual Monitoring Reports. Acting Regional Administrator, Region 2. Additionally, institutional controls, FOR FURTHER INFORMATION CONTACT: consisting of recording the Consent [FR Doc. 04–5874 Filed 3–16–04; 8:45 am] Damian Duda, at the address provided Decree and placing restrictive covenants BILLING CODE 6560–50–P above, by telephone at (212) 637–4269, on the real property at the Site, have by electronic mail at been implemented by Niagara County [email protected] or by FAX at ENVIRONMENTAL PROTECTION and the Town of Wheatfield. (212) 637–3966. AGENCY An Operation, Maintenance, and SUPPLEMENTARY INFORMATION: Monitoring (OM&M) Manual was 40 CFR Part 300 Table of Contents developed and implemented. Financial assurance for OM&M activities has been [FRL–7637–4] I. Introduction provided by the PRPs in the form of II. NPL Deletion Criteria National Oil and Hazardous III. Deletion Procedures demand notes as required by the IV. Basis for Intended Site Deletion Consent Decree. Annual reports are Substances Pollution Contingency provided to EPA and NYSDEC and both Plan; National Priorities List I. Introduction EPA and NYSDEC believe that the AGENCY: Environmental Protection EPA Region II announces its intent to reports for 2001 and 2002 confirm that Agency. delete the Love Canal Superfund site, the remedy for the Site has been ACTION: Notice of intent to delete the located in the City of Niagara Falls, successfully implemented. Love Canal Superfund site from the Niagara County, New York from the The Site has been cleaned and NPL and requests public comment on environmentally valuable lands National Priorities List. this action. The NPL is Appendix B of restored. The Site no longer poses an SUMMARY: The Environmental Protection the NCP, which EPA promulgated, unacceptable risk to human health or Agency (EPA), Region II, announces its pursuant to Section 105 of CERCLA. the environment. However, hazardous intent to delete the Love Canal EPA identifies sites that appear to substances remain at the Site above Superfund site (Site) from the National levels that would allow for unlimited present a significant risk to public Priorities List (NPL) and requests public health or the environment and use with unrestricted exposure. comment on this action. The NPL is Pursuant to section 121(c) of CERCLA, maintains the NPL as the list of those Appendix B of the National Oil and sites. Sites on the NPL can have EPA and/or the State will review site Hazardous Substances Pollution remedies no less often than every five remedial actions financed by the Contingency Plan (NCP), 40 CFR Part Hazardous Substances Superfund years. The EPA, Region 2, conducted a 300, which EPA promulgated pursuant Five-Year Review of the Site in Response Trust Fund (Fund). As to Section 105 of the Comprehensive described in 40 CFR 300.425(e)(3) of the November 2003. The Five-Year Review Environmental Response, concluded that the contamination at the NCP, a site deleted from the NPL Compensation, and Liability Act remains eligible for remedial actions, if Niagara County Refuse site is under (CERCLA), as amended. EPA and the control and there is no exposure to conditions at the site warrant such State of New York (State), through the action. human or environmental receptors from New York State Department of Site-related contaminants due to The Site is located in the southeast Environmental Conservation (NYSDEC), corner of the City of Niagara Falls, permanent measures in place at the Site. have determined that all appropriate Public participation activities for this approximately 1⁄4 mile north of the response actions under CERCLA have Site have been satisfied as required in Niagara River in Niagara County, New been implemented and that no further CERCLA section 113(k), 42 U.S.C. York. response action pursuant to CERCLA are 9613(k), and section 117, 42 U.S.C. EPA will accept comments appropriate. 9617. The ROD was subject to a public concerning the deletion of this Site from review process. All other documents DATES: Comments concerning this the NPL for thirty days after publication and information which EPA relied on or Action must be received by April 16, of this notice in the Federal Register. 2004. considered in recommending this II. NPL Deletion Criteria deletion are available for the public to ADDRESSES: Written comments should review at the information respositories. be submitted to: Damian J. Duda, The NCP establishes the criteria that One of the three criteria for site Remedial Project Manager, Emergency the Agency uses to delete sites from the deletion is when ‘‘responsible parties or and Remedial Response Division, U.S. NPL. In accordance with 40 CFR other persons have implemented all Environmental Protection Agency, 300.425(e), sites may be deleted from appropriate response actions required’’ Region II, 290 Broadway, 20th Floor, the NPL where no further response is (40 CFR 300.425(e)(1)(i)). EPA, with the New York, New York 10007–1866. appropriate. In making this concurrence of the State of New York, Comprehensive information on this determination, EPA, in consultation through the NYSDEC, believes that this Site is available through the EPA Region with the State of New York, shall

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consider whether any of the following to delete this Site, the decision will be In May 1982, EPA’s Office of Research criteria have been met: made in a final Notice of Deletion in the and Development issued the (i) Responsible or other parties have Federal Register. Deletion of a site from Environmental Monitoring at Love implemented all appropriate response the NPL does not affect responsible Canal Study (May 1982) (EMS) which actions required; or, party liability or impede Agency efforts evaluated the nature and extent of (ii) All appropriate Fund-financed to recover costs associated with contamination throughout the EDA, responses under CERCLA have been response efforts. The NPL is designed including air, soils, surface water, implemented, and no further response primarily for informational purposes sediments and biota sampling. actions by responsible parties is and to assist Agency management. In July 1982, the EPA Region 2 Regional Administrator issued a appropriate; or, IV. Basis for Intended Site Deletion (iii) The remedial investigation has Decision Memorandum: Cooperative shown that the release poses no Between 1942 and 1952, the Hooker Agreement with the State of New York significant threat to public health or the Chemicals & Plastics Corporation (now for Love Canal. This memorandum was environment and, therefore, Occidental Chemical Corporation a precursor to the Superfund ROD and implementing remedial measures is not (OCC)) disposed of approximately documented the work that had been appropriate. 40 CFR 300.425(e)(1). 22,000 tons of drummed and liquid performed by NYSDEC, approved chemical wastes, including polycyclic III. Deletion Procedures additional Federal funding, and aromatic hydrocarbons, halogenated identified a phased approach for The following procedures are being organics, pesticides, chlorobenzenes conducting eight additional tasks which used for the intended deletion of the and dioxin into the abandoned Love included the following: Site: Canal Landfill (LCL). • Undertake Site containment via an (1) EPA Region II issued the following Problems with odors and residues in expanded leachate collection system decision documents: a Decision the basements and backyards of and/or other containment option. memorandum in July 1982; three properties abutting the LCL were first • Investigate/remediate Records of Decision (RODs) in March reported in the 1970’s. Also, during the contamination in the north end storm 1985, September 1987 and September 1970’s, unusually high precipitation in and sanitary sewer system. 1988; three Explanations of Significant the region caused the water table within • Investigate/remediate Differences (ESDs) in June 1989, the LCL to rise, which allowed contamination in Black and Bergholtz November 1996 and December 1998; contaminants to spread laterally in creeks. and, a ROD Amendment in May 1991, surficial soils and along utility bedding, • Investigate/remediate all of which describe the selected eventually seeping into the basements of contamination in the south end storm remedies at the Site. nearby homes. Dioxin and other sewers. (2) EPA, NYSDEC and the Potentially contaminants also migrated from the • Investigate/remediate Responsible Party (PRP) designed and LCL to the sanitary and storm sewers contamination in the western sanitary constructed the various remedies at the which extended outside the LCL sewers and lift stations. Site. EPA and NYSDEC monitored the boundaries, some with outfalls into • Develop long-term monitoring to design and construction activities. EPA nearby creeks which are tributaries to ensure the effectiveness of the cleanup prepared a Final Closeout Report the Niagara River. In 1978, the New activities. (available upon request), which York State Department of Health • Investigate/remediate 102nd Street describes the remedial activities that (NYSDOH) identified more than 80 outfall. were implemented and which finds that chemicals in the LCL and adjacent soils. • Prepare summary document with all areas of concern described in the In August 1978, President Carter conclusions. NPL listing and the various decision issued the first of two Emergency By June 1983, the Rings I and II documents have been adequately Declarations at the Site which provided homes, adjacent to the LCL, as well as addressed. Federal funding for remedial work to the 99th Street School, had been (3) EPA Region II recommends contain the chemical wastes at the Site demolished. deletion and has made all relevant and for the relocation of the residents in In August 1983, in order to address documents available in the Regional the homes (239 properties) directly concerns raised by the Office of office and local information repository. adjacent to the LCL; these homes were Technology Assessment and the public (4) The State of New York, through subsequently identified as Ring I and regarding the 1982 EMS, EPA the NYSDEC, has concurred with the Ring II. established the multi-agency Love Canal deletion decision in a letter dated In May 1980, President Carter issued Technical Review Committee (TRC) to September 30, 2003. the second Declaration of Emergency at act as a management group to provide (5) Concurrent with the publication of the Site. This emergency declaration interagency coordination and oversight this Notice of Intent to Delete, a notice established the Emergency Declaration for further remedial and habitability has been published in two local Area (EDA), the approximately 350-acre activities for the Site. The TRC was newspapers and has been distributed to neighborhood surrounding the Site, and comprised of senior-level appropriate Federal, State and local authorized $20 million of Federal funds representatives from EPA, U.S. officials and any other interested for the purchase of homes. The Federal Department of Health and Human parties, announcing a thirty (30)-day Emergency Management Agency Services/Centers for Disease Control, public comment period on the deletion (FEMA) disbursed these funds and, NYSDOH and NYSDEC. The principal package. together with NYSDEC, relocated task of the TRC was to determine the The NCP provides that EPA shall not approximately 950 families, of the more habitability of the EDA surrounding the delete a site from the NPL until the than 1,050 families affected, from a 10- Site. public has been afforded an opportunity square-block area surrounding the LCL. The efforts of the TRC led to the to comment on the proposed deletion. In 1981, EPA proposed the addition of development of the Love Canal EPA Region II will accept and evaluate the Site to the NPL, making it available Emergency Declaration Area public comments before making a final for funding under CERCLA. The Site Habitability Study (LCHS). A draft decision to delete. If a decision is made was added to the NPL in 1983. Habitability Criteria document was

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developed, pursuant to specific provisions to address the • construction of a separate on-site recommendations of an independent significant program aspects of the Site. facility to treat the dewatered sediments panel, and was released for peer review. These included: through high temperature thermal The final habitability criteria were • Completion of a study of the destruction; established after this extensive peer habitability of the EDA, i.e., the LCHS. • on-site thermal treatment of the review process of the draft habitability • Acquisition of those properties residuals stored at the Site from the criteria. The development of the five- within the EDA which were not eligible leachate treatment facility and other volume LCHS was based upon the final for government acquisition under the associated Love Canal waste materials; habitability criteria. FEMA acquisition program. and, In October 1983, EPA issued the • Maintenance of property acquired • on-site disposal of any Environmental Information Document— under the FEMA and EPA’s SARA nonhazardous residuals from the Site Investigations and Remedial Action acquisition programs. thermal treatment or incineration • Alternatives—Love Canal which Provision of technical assistance to process. evaluated contamination in the creeks the Love Canal Area Revitalization From 1987 until 1988, the LCHS and sewers surrounding the LCL and Agency (LCARA) to facilitate their sampling and evaluation were provided treatment alternatives for their efforts to revitalize the EDA. LCARA performed to evaluate air and soil remediation. was a New York State Agency that was contamination in the EDA and other In 1984, NYSDEC installed a 40-acre designated as the lead agency in the comparison neighborhoods, using cap over the LCL, consisting of a high- rehabilitation effort of the Love Canal specific habitability criteria, as density polyethylene liner, which was EDA. discussed above. Volume I—Final then covered by 18 inches of clean soil During 1986 and 1987, the Report of the LCHS, Introduction and and seeded for grass. In addition, remediation of the contaminated sewers Decision-Making Documentation was NYSDEC performed high-pressure was performed; this included the clean- issued in May 1988. The subsequent cleaning of the leachate collection out of 68,000 linear feet of storm and four volumes of data documentation system in February 1983 to improve its sanitary sewers. An on-site facility was were issued later. Volumes II and III performance. The permanent leachate constructed to dewater sewer presented the results of the assessment treatment plant began operation in contaminants. This remedial action for the Love Canal indicator chemicals December 1979. Modifications were conformed with the 1985 ROD, for air and soil. Volume IV presented made to the leachate treatment plant in requiring the removal of dioxin- the assessment of the dioxin soil December 1984. contaminated sediments from the creeks assessment. Volume V summarizes the In March 1985, EPA issued the Love and sewers. Additional sewer cleanup subsequent peer review of Volumes II– Canal Sewer and Creek Remedial was performed pursuant to the 1987 IV and the response to that peer review. Alternative Evaluation and Risk ROD (discussed below); the 1987 ROD In September 1988, using the results Assessment, which evaluated risks also documented earlier elements of the of the LCHS, the New York State posed by contamination in the creeks sewer cleanup. Commissioner of Health issued a and sewers, further evaluated From 1987 until 1989, Black and Decision on Habitability, which alternatives for remediating the creeks Bergholtz Creeks were dredged of identified appropriate land uses for the and presented a proposed remedial approximately 14,000 cubic yards of seven designated areas of the EDA. action plan. sediments. Clean riprap was placed in Areas 1–3 were declared not suitable for In May 1985, EPA issued a ROD the creek beds, and the banks were residential use, i.e., uninhabitable, but selecting a remedy to remediate the replanted with grass. This remedial were suitable for commercial/industrial sewers and the creeks in the EDA. This action conformed with the 1985 ROD, use. Areas 4–7 were deemed habitable, ROD called for: requiring the removal of dioxin- i.e., suitable for residential use. • Hydraulically cleaning the sewers; contaminated sediments from the creeks In March 1988, EPA issued the 93rd • dredging and hydraulically cleaning and sewers. St. School Remedial Investigation and the Black Creek culverts; In June 1987, EPA issued the Feasibility Study which evaluated the • removing Black and Bergholtz Alternatives for Destruction/Disposal of nature and extent of contamination at Creek sediments with dioxin Love Canal Creek and Sewer Sediments the 93rd St. School and provided concentrations exceeding one part per report which provided various alternatives for the remediation of the billion (ppb); alternatives for the ultimate disposal of contamination. • construction of an on-site interim the sediments, described below in more In September 1988, EPA issued a storage facility for the creek and sewer detail. third ROD which selected a remedy for sediments; and, In 1987, EPA entered into the first of contaminated soils at the 93rd Street • remediation of the 102nd Street two cooperative agreements with School. The selected remedy included outfall area (which was subsequently LCARA to implement the mandates of the following actions: addressed under the remedial action for Section 312 of SARA/CERCLA. This • excavation of approximately 7,500 the 102nd Street Landfill Superfund first agreement dealt with EDA property cubic yards of contaminated soil site). acquisition. Under EPA’s and other adjacent to the school; In August 1985, EPA issued the Long- acquisition programs, including • on-site solidification and Term Monitoring Program Design for the FEMA’s, LCARA purchased over 600 stabilization of the contaminated soils; Love Canal Remedial Project which properties in the EDA. and, evaluated contamination in the area In October 1987, EPA issued a second • return of the stabilized soils to the groundwater and effectiveness of the ROD selecting a remedy to address the excavated area. barrier drain and cap system. Hundreds destruction and disposal of the dioxin- Prior to 1989, EPA, through its of groundwater monitoring wells were contaminated sediments from the cooperative agreement with NYSDEC, installed between 1985 and 1987. sewers and creeks. The ROD called for: provided funds for the maintenance of In 1986, the Superfund Amendments • construction of an on-site facility to the abandoned properties in the EDA. and Reauthorization Act (SARA) was dewater the sewer and creek sediments Subsequently, in 1989, NYSDEC passed enacted; Section 312 of SARA included and to contain the dewatered sediments; the responsibility for home maintenance

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to LCARA. At this time, EPA then rather than at OCC’s Niagara Falls Main generated during the more than 70 TRC entered into a second cooperative Plant. meetings, as well as each expert panel agreement with LCARA to implement In February 1998, OCC began meeting, et al., were made available to the maintenance and technical shipping the bagged Love Canal wastes the public for review at the EPA offices assistance (MATA) mandates of Section from its storage facilities for disposal in Niagara Falls. The final TRC meeting 312 of CERCLA. Under this MATA (thermal destruction or landfilling). was held in 1991. agreement, EPA provided LCARA with In December 1998, EPA issued a third Institutional controls are in place in funding to maintain improved and ESD which provided notice that EPA both the containment area of the Site unimproved properties in the EDA and granted a treatability variance to OCC to and the EDA. New York State (NYS) has also to demolish EDA homes that had eliminate the requirement that the a permanent easement on the Site deteriorated to the extent that they stored Love Canal waste materials property, providing for the exclusive presented safety concerns or a net loss containing dioxin at concentrations use and occupancy of the Site property. to the overall value of the property. between 1 and 10 ppb be incinerated. By Consent Decree, NYS granted OCC Over 250 homes were demolished under As a result of this variance, these exclusive use and occupancy of the Site the MATA program. materials could be disposed at a property for the purpose of providing EPA’s technical assistance has commercial hazardous waste landfill continued O&M for the Site remedy. supported LCARA’s efforts to revitalize without treatment. OCC retains exclusive use and the EDA (EPA did not provide Federal In August 1999, this remedial action occupancy, as long as the Consent funds for the actual repair or was completed and the remaining bags Decree is in effect. The institutional reconstruction of buildings within the of wastes were shipped off-site for controls on the vacant parcels in the disposal. A total of 10,262 bags were EDA). LCARA sold approximately 260 non-habitable sections of the EDA land disposed in a Subtitle C facility homes in the EDA areas designated for (Areas 1–3) are maintained by zoning and 5,234 bags were incinerated, with residential use and prepared a master and deed restrictions. The deeds for the resulting residues being landfilled at plan for the areas designated for these properties require that NYSDEC be Subtitle C facilities. commercial/industrial use. LCARA completed its charge to notified both when these properties are In 1989, EPA issued an ESD to the revitalize the EDA and, in 2003, was sold and when these properties are 1985 and 1987 RODs, which specified subsequently dissolved by an act of the being considered for any other use than that creek sediments were to be State legislature. At the present time, all commercial and/or light industrial. The dewatered at creek side, placed in residential and commercial properties deeds also state that all identified use polyethylene bags and then transported in Areas 4–7 have been rehabilitated, limitations and restrictions of the to and stored at OCC’s Resource sold by LCARA and restored to active property shall run with the land and Conservation and Recovery Act- use. LCARA rehabilitated and sold bind the current owner and any permitted storage buildings at its approximately 260 homes in the areas successors in perpetuity or until such Niagara Falls Main Plant, rather than at identified for residential use and time as NYSDEC shall determine that the Site, pending high temperature prepared a master plan for the areas such institutional controls are no longer thermal destruction at OCC’s Niagara designated for commercial/industrial necessary for the protection of public Falls Main Plant. In addition, other Love use. Certain parcels in EDA Areas 2–3 health and the environment. The deed Canal wastes, including the sewer remain vacant, and these vacant also identifies that some soil sediments and other remedial wastes properties are properly zoned and have remediation is required prior to any originally targeted for thermal treatment deed restrictions which comply with the potential residential use. at the Site, were also to be thermally original Decision on Habitability, Under the direction of NYSDEC, OCC, treated at OCC’s Niagara Falls Main limiting use to commercial/industrial through its contractor Miller Springs Plant rather than at the Site. OCC, the purposes only, unless remediated. Remediation Management, performs United States and the State of New York These parcels were subsequently sold to O&M of the Site remedy and maintains entered into an agreement, i.e., a partial real estate developers. day-to-day operations at the Site, as consent decree, filed in U.S. District EPA, NYSDEC and the PRP used identified in two separate consent Court, to implement this modification to engineering consultants and contractors decrees with NYS and the United States, the 1985 and 1987 RODs. to perform the remedial design and/or respectively. The continued In May 1991, EPA issued an construction for the Site. EPA and effectiveness of the remedy is amendment to the 1988 ROD for the NYSDEC also performed oversight for monitored, pursuant to both consent 93rd Street School, which modified the activities conducted by the PRPs and decrees, as well as through the selected remedy and called for their contractors, as well as EPA and performance of EPA’s five-year reviews. excavation and off-site disposal of the NYSDEC contractors. A five-year review of Site remedies contaminated soils, rather than disposal In 1982, EPA established a Public was completed on September 30, 2003. at the 93rd Street School site. Information Office in downtown The five-year review ensures that the In September 1992, the contaminated Niagara Falls to handle the Site, as well implemented remedies protect human soils at the 93rd Street School were as other EPA Superfund sites in the health and the environment and that excavated; these materials were used for Niagara Falls and Buffalo, New York they function as intended by the alternate grading material for the 102nd area. All decisions made about the Site decision documents. Street Landfill Superfund site Remedial were conducted in a public forum, EPA, in consultation with the State of Action, i.e., subgrade material for the especially during the development of New York, through the NYSDEC, has capping remedy. the LCHS, which included the monthly determined that all appropriate In November 1996, EPA issued a TRC meetings, as well as expert panel response actions, under CERCLA, have second ESD for the 1987 ROD. This ESD meetings, which were all open to the been implemented at the Site and no authorized thermal treatment and/or public. Residents of the EDA were further response actions, other than land disposal of the stored Love Canal informed of each meeting and were monitoring, operation, maintenance and waste materials at an off-site encouraged to attend. All associated compliance with institutional controls, commercial incinerator and landfill minutes, reports and other documents are necessary.

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Hazardous substances remain at the Proposed Rule Making, ET Docket No. Service mail (although we continue to Site above levels that would be allowed 03–104 and ET Docket No. 04–37, FCC experience delays in receiving U.S. for unlimited use without restrictions. It 04–29, adopted February 12, 2004, and Postal Service mail). The Commission’s is the policy of EPA to conduct five-year released February 23, 2004. The full text contractor, Natek, Inc., will receive reviews of pre-SARA remedies which of this document is available for hand-delivered or messenger-delivered leave hazardous substances on-site. EPA inspection and copying during normal paper filings for the Commission’s completed a five-year review of this Site business hours in the FCC Reference Secretary at 236 Massachusetts Avenue, on September 30, 2003. The next five- Center (Room CY–A257), 445 12th NE., Suite 110, Washington, DC 20002. year review should be completed by Street, SW., Washington, DC 20554. The The filing hours at this location are 8 EPA and/or NYSDEC before September complete text of this document also may a.m. to 7 p.m. All hand deliveries must 30, 2008. be purchased from the Commission’s be held together with rubber bands or copy contractor, Qualex International, fasteners. Any envelopes must be List of Subjects in 40 CFR Part 300 445 12th Street, SW., Room, CY–B402, disposed of before entering the building. Environmental protection, Chemicals, Washington, DC 20554. The full text Commercial overnight mail (other than Hazardous substances, Hazardous may also be downloaded at: U.S. Postal Service Express Mail and waste, Intergovernmental relations, www.fcc.gov. Alternate formats are Priority Mail) must be sent to 9300 East Penalties, Reporting and recordkeeping available to persons with disabilities by Hampton Drive, Capitol Heights, MD requirements, Superfund, Water contacting Brian Millin at (202) 418– 20743. U.S. Postal Service first-class pollution control, Water supply. 7426 or TTY (202) 418–7365. mail, Express mail, and Priority Mail Pursuant to §§ 1.415 and 1.419 of the Dated: March 4, 2004. should be addressed to 445 12th Street, Commission’s rules, 47 CFR 1.415, SW., Washington, DC 20554. Kathleen C. Callahan, 1.419, interested parties may file Acting Regional Administrator, Region 2. comments on or before May 3, 2004, and Summary of Notice of Proposed [FR Doc. 04–5875 Filed 3–16–04; 8:45 am] reply comments on or before June 1, Rulemaking BILLING CODE 6560–50–P 2004. Comments may be filed using the 1. The Notice of Proposed Rulemaking Commission’s Electronic Comment (‘‘NPRM’’) proposes to amend part 15 of Filing System (ECFS) or by filing paper the Commission’s rules to adopt new FEDERAL COMMUNICATIONS copies. See Electronic Filing of requirements and measurement COMMISSION Documents in Rulemaking Proceedings, guidelines for a new type of carrier 63 FR 24121, May 1, 1998. Comments current system that provides access to 47 CFR Part 15 filed through the ECFS can be sent as an broadband services using electric utility electronic file via the Internet to http:/ companies’ power lines. Because power [ET Docket No. 03–104 and ET Docket No. lines reach virtually every home and 04–37; FCC 04–29] /www.fcc.gov/e-file/ecfs.html. Generally, only one copy of an community in the country, we believe Broadband Power Line Systems electronic submission must be filed. If that these new systems, known as multiple docket or rulemaking numbers Access broadband over power line or AGENCY: Federal Communications appear in the caption of this proceeding, Access BPL, could play an important Commission. however, commenters must transmit role in providing additional competition ACTION: Proposed rule. one electronic copy of the comments to in the offering of broadband services to each docket or rulemaking number the American home and consumers, and SUMMARY: This document proposes to referenced in the caption. In completing in bringing Internet and high-speed amend the Commission’s rules to adopt the transmittal screen, commenters broadband access to rural and new requirements and measurement should include their full name, U.S. underserved areas. At the same time, we guidelines for a new type of carrier Postal Service mailing address, and the are cognizant that the possibility of current system that provides access to applicable docket or rulemaking widespread operation of Access BPL broadband services using electric utility number. Parties may also submit an raises interference concerns and that we companies’ power lines. Because power electronic comment by Internet e-mail. must protect licensed radio services lines reach virtually every home and To get filing instructions for e-mail from any harmful interference that community in the country, we believe comments, commenters should send an might occur. In this regard, we are that these new systems, known as e-mail to [email protected], and should proposing to require that BPL systems Access broadband over power line or include the following words in the body and devices incorporate capabilities to Access BPL, could play an important of the message, ‘‘get form .’’ A sample form and occur. We are also proposing to adopt in the offering of broadband services to directions will be sent in reply. Parties administrative requirements to aid in the American home and consumers, and who choose to file by paper must file an the identification and resolution of in bringing Internet and high-speed original and four copies of each filing. harmful interference from Access BPL broadband access to rural and If more than one docket or rulemaking systems. Finally, we are proposing to underserved areas. number appears in the caption of this clarify certain measurement guidelines DATES: Comments must be filed on or proceeding, commenters must submit for all types of carrier current systems before May 3, 2004, and reply comments two additional copies for each that use electric wiring and electrical must be filed on or before June 1, 2004. additional docket or rulemaking outlets within homes and buildings to number. transfer information between computers FOR FURTHER INFORMATION CONTACT: Anh All filings must be addressed to the and other electronic devices. With these Wride, Office of Engineering and Commission’s Secretary, Office of the proposals, we take an important step Technology, (202) 418–0577, e-mail: Secretary, Federal Communications towards promoting the deployment of [email protected], TTY (202) 418– Commission. Filings can be sent by new broadband networks that are 2989. hand or messenger delivery, by expected to enhance the economic, SUPPLEMENTARY INFORMATION: This is a commercial overnight courier, or by educational and social well-being of all summary of the Commission’s Notice of first-class or overnight U.S. Postal Americans. Specifically, we believe that

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the proposed changes will remove subscriber line (DSL), cable modem on the probable interference regulatory uncertainties and facilitate services and other high-speed Internet environment and propagation patterns the introduction and use of this technologies. of BPL and the mitigation techniques promising new technology. 4. Most Access BPL systems today used by BPL to avoid interference. The operate on frequencies up to 50 MHz Commission further asked whether it Description of BPL with very low power signals spread over would be possible to develop a 2. Traditionally, various low-power, a broad range of frequencies. These standardized measurement method for unlicensed devices or systems have frequencies are also used by licensed testing BPL, and if so, how to develop used the alternating current (AC) power radio services that must be protected it. It requested input on whether there lines to carry information by coupling from harmful interference as BPL are any international standards that radio frequency (RF) energy to the AC systems operate on an unlicensed basis should be investigated for possible electrical wiring. These unlicensed under part 15 of the Commission’s rules. adoption in order to facilitate the devices include AM radio systems on In the radio spectrum below 50 MHz, development of BPL products for a school campuses and devices intended incumbent authorized operations global marketplace. In addition, the for the home, such as intercom systems include fixed, land mobile, aeronautical Commission sought comments on issues and remote controls for electrical mobile, maritime mobile, radiolocation, related to the authorization of BPL and appliances and lamps. Until recently, broadcast radio, amateur radio the types of components of Access BPL carrier current devices have operated terrestrial and satellite, and radio- that would be subject to equipment generally on frequencies below 2 MHz astronomy. Users of this spectrum also authorization. Finally, the Commission with relatively limited communications include, for example, public safety and sought input on whether power line capabilities. Because of the inherent Federal government agencies. carrier systems currently deployed by impedance and attenuation variations of Existing Part 15 Rules for BPL the utility companies to control and power lines and noise from devices monitor the electrical system would be 5. Carrier current devices, including such as dimmer switches, motorized replaced in the future with the new high BPL equipment, are subject to the electrical appliances, and computers speed BPL equipment and on any Commission’s existing part 15 rules for switching on and off, reliable high- associated issues with the coexistence of low-power, unlicensed equipment that speed communications over power lines the older control systems with the new operates on a non-interference basis. At have been difficult to achieve. However, BPL systems. (See paragraphs 9 through the present time, the part 15 rules the availability of faster digital 29 of the NPRM for full discussion). processing capabilities and the provide specific radiated and conducted development of sophisticated emission limits for carrier current 8. As indicated in the Notice of modulation schemes have produced systems operating below 30 MHz. The Inquiry and supported by the responsive new designs that can overcome these radiated emission limits apply from 9 comments, we believe that Access BPL technical obstacles. These new designs kHz and vary with frequency. There is offers the promise of a new method for have led to the development of new BPL no limit on conducted emissions for delivery of broadband services to systems that use spread spectrum or carrier current systems that contain residential, institutional, and multiple carrier techniques and that their fundamental emission within the commercial users. Because power lines incorporate adaptive algorithms to standard AM broadcast band of 535 to reach virtually every home, school, and counter the noise in the line. 1705 kHz and are intended to be business in the United States, Access 3. The new low-power, unlicensed received using standard AM broadcast BPL technology could play an important BPL systems couple RF energy onto the receivers. All other carrier current role in providing high-speed Internet existing electric power lines to provide systems operating below 30 MHz are and broadband services to rural and high-speed communications subject to a conducted emission limit remote areas of the country. Thus, capabilities. BPL systems may operate only within the AM broadcast band. significant areas of the country still lack either inside a building (‘‘In-House Carrier current devices that do not broadband access and many others lack BPL’’) or over utility poles and medium operate at frequencies below 30 MHz are competition for such services, and we voltage electric power lines (‘‘Access subject to the general conducted limits believe that Access BPL could serve as BPL’’). In-House BPL systems use the below 30 MHz. a means to reach those areas. Since electrical outlets available within a Access BPL uses the same power lines building to transfer information between Notice of Inquiry that carry electricity virtually computers and between other home 6. In April 2003, the Commission everywhere, much of the infrastructure electronic devices, eliminating the need issued a Notice of Inquiry (Inquiry), 68 needed to operate this technology is to install new wires between devices. FR 28182, May 23, 2003, on BPL already in place, so that major savings Using this technology, consumers can technologies and systems. The Inquiry in deployment costs and capital may be readily implement home networks. was issued to solicit comments to assist realized in its deployment. Access BPL Access BPL systems can be used to the Commission in reviewing its part 15 could also serve to provide new provide high speed Internet and other rules to facilitate the deployment of competition to existing broadband broadband services to homes and Access BPL while ensuring that licensed services, such as cable and DSL. In businesses. In addition, electric utility services continue to be protected. In the addition, Access BPL may allow electric companies can use Access BPL systems Inquiry, the Commission encouraged utilities to improve the safety and to monitor, and thereby more effectively continued deployment of Access BPL efficiency of the electric power manage their electric power distribution systems that comply with the existing distribution system and also further our operations. Given that Access BPL rules. national homeland security by capability can be made available in 7. In the Inquiry, the Commission protecting this vital element of the U.S. conjunction with the delivery of electric asked for comments on the critical infrastructure. Moreover, Access power, it may provide an effective characteristics of BPL technology, the BPL is being developed worldwide, and means for ‘‘last-mile’’ delivery of status of deployment of BPL and any encouraging the deployment of the broadband services and may offer a standards work related to BPL. The technology in the United States will competitive alternative to digital Commission also asked for comments support globalization of products and

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services, promote continued U.S. invited to submit suggestions for Access BPL systems, as set forth in leadership in broadband technology, alternative definitions. Such Appendix C of the NPRM, to specify and bring important benefits to the submissions should include a complete that emission measurements be made at American public. description of what would be included several specific distances from the 9. We recognize the significant in the definition of Access BPL and Access BPL equipment source, and that concerns of existing radio users why. We also request comment on measurements be taken parallel to the regarding the potential for harmful whether there are entities that plan to power line to find the maximum interference from Access BPL own/operate Access BPL over the emissions from the BPL system. We seek operations. After careful consideration, electric power lines but would not be comment on our proposed measurement however, we believe that these electrical power providers or a guidelines. interference concerns can be adequately subsidiary of the incumbent electric 13. With regard to potential addressed. We believe that Access BPL power provider. interference to the non-amateur radio systems can operate successfully under Access BPL Emission Limits services, such as public safety, maritime the non-interference requirements of the and other operations, we believe that 11. Existing spectrum users are part 15 rules. Under these rules, the risk of harmful interference from concerned that emissions from Access operators of Access BPL systems will be Access BPL operations is low. In BPL systems and devices could responsible for eliminating any harmful general, we believe that a properly adversely affect their operations. BPL interference that may occur. designed and operated BPL system will Furthermore, we believe that the current proponents, on the other hand, suggest that any impact from Access BPL would pose little interference hazard to non- part 15 emission limits for carrier amateur services such as aeronautical, current systems in conjunction with be minimal and some argue that emission levels higher than the current maritime and public safety. However, certain additional requirements specific we recognize in our analysis that public to Access BPL operations will be part 15 limits would be acceptable and allow more cost-effective system safety systems merit particular attention adequate to ensure that existing radio because of the often critical nature of operations are protected against harmful implementations. At this time, the Commission believe that we should their communications. In analyzing the interference from such operations. We potential for harmful interference to therefore are proposing changes to our proceed cautiously. We recognize that unlicensed operations in the HF band public safety systems we took into part 15 rules that we believe will account the fact that low-level part 15 facilitate the deployment of Access BPL presents a number of unique challenges given the propagation characteristics of signals from Access BPL devices technology while protecting licensed attenuate rapidly as the distance from users of the spectrum. Specifically, we this range of frequencies and the diversity of licensed users. Accordingly, the device increases; and that most are proposing to: (1) Define Access BPL in order to better ensure protection of public safety systems are designed so for purposes of our rules; (2) maintain existing radio services, we are proposing that mobile and portable units receive a the existing part 15 emission limits for to continue to apply the existing part 15 signal level significantly above the noise Access BPL; (3) require that Access BPL emission limits for carrier current floor. From an interference analysis devices employ adaptive interference systems to Access BPL systems. While standpoint, this latter characteristic mitigation techniques; (4) require that we agree that there is some potential for distinguishes public safety systems from Access BPL providers maintain a Access BPL to cause harmful amateur radio stations using high- database of installation locations and interference to radio services, we also sensitivity receivers to receive signals technical information; and (5) adopt tentatively conclude that the likelihood from transmitters often thousands of specific measurement guidelines for of such harmful interference is low miles away. However, it is foreseeable both Access BPL and other carrier under the current limits and that where that under certain rare circumstances a current systems to ensure that such interference does occur, there are public safety unit could: (a) operate in measurements are made in a consistent remedies that the Access BPL operator close proximity to an Access BPL manner and provide for repeatable can employ to eliminate such device; (b) be tuned to a frequency results in determining compliance with interference. On balance, we believe radiated by the Access BPL device; and our rules. that the benefits of Access BPL for (c) be receiving a weak signal from a Definition of Access BPL bringing broadband services to the distant, or obstructed, public safety base public are sufficiently important and station. In general, potential harmful 10. We propose to define Access BPL significant as to outweigh the potential interference under these conditions as a carrier current system operating on for increased harmful interference that would be limited to public safety units any electric power transmission lines may arise. Furthermore, we are operating on systems using low-band owned, operated or controlled by an proposing to subject Access BPL VHF channels (25–50 MHz). Therefore, electrical power provider, as follows: operations to the existing part 15 it appears that the interference Access Broadband over power line radiated emission limits for carrier protections we propose herein—and the (Access BPL): A carrier current system current systems. In addition, we are strict ‘‘no interference’’ restriction that transmits radio frequency energy by proposing that Access BPL devices inherent in the part 15 rules—will be conduction over electric power lines include technical capabilities and adequate to foreclose such rare owned, operated, or controlled by an administrative procedures to ensure that instances of harmful interference to electric service provider. The electric the potential for harmful interference is public safety systems. While we power lines may be aerial (overhead) or minimized and that any instances of tentatively conclude that the measures underground. harmful interference are quickly proposed herein are adequate, we We believe that this definition is resolved. request comment on whether any consistent with the concept of Access 12. To ensure that any effect of the additional measures are needed to BPL and the current and planned power line is taken into consideration protect particular operations, such as deployment of this technology. We when testing for compliance with our public safety. For example, should we request comment on this definition of part 15 rules, we are proposing to require Access BPL system to coordinate Access BPL. Interested parties are modify the measurement procedures for with public safety agencies that use the

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HF band for state-wide public safety control the operating frequencies and maintain the Access BPL data base. We communications? power of their installations. also seek comment on other approaches 14. We are proposing to maintain the 17. Second, we propose to require that for making this information available. existing part 15 radiated emission limits Access BPL devices incorporate a shut- For example, would it more reasonable for Access BPL systems and devices. In down feature that would deactivate to allow each Access BPL operator to addition, we are proposing to exempt units found to cause harmful maintain a database of its own rather Access BPL systems from the existing interference, and thereby allow speedy than require a more centralized data conducted emission limits of implementation of interference base? Commenting parties are requested § 15.107(c). Because Access BPL mitigation measures. It is our to submit information on the benefits of systems are installed on power lines understanding that most Access BPL such approaches. We further seek input that can carry 1,000 volts to 40,000 devices already possess this capability. on any resulting burdens that the volts, conducted emission We seek comment on these proposals proposed notification requirement may measurements are very difficult to and invite suggestions for alternative place on entities operating Access BPL measure, and present safety hazards in approaches. In particular, we request systems, and any impact of a connecting test equipment to these comment on whether we should have notification system on the availability of lines. We do not believe that this specific requirements regarding the customer data as well as how any exemption would have any impact on above mitigation approaches. For concerns regarding the proprietary interference potential since Access BPL example, should we require that each nature of that data can be addressed. would still be required to comply with Access BPL device be capable of operating across a minimum range Equipment Authorization and our radiated emissions rules. We seek Measurement Guidelines comment on these proposals. We further frequencies and have the capability to 19. Equipment Authorization. We seek comment on whether Access BPL remotely exclude a specific percentage propose to retain the Verification would in some instances operate in the of frequencies within this range. We procedure for Access BPL. Consistent AM broadcast band (from 535 to 1705 also seek comment on the cost and with the objective that our regulatory kHz), and whether specific conducted effectiveness of these or alternative requirements keep pace with technology requirements are needed in such approaches. To the extent possible, we development, we recognize that we situations. encourage potential BPL providers and BPL equipment manufacturers to work must balance administrative burdens Access BPL Operational Requirements with amateurs and other existing and the need to ensure compliance with licensed services to develop such our rules. We agree with commenting 15. To further address the interference appropriate mitigation requirements. parties such as Phonex Broadband concerns raised in the Inquiry, we are We seek comment on the appropriate Corporation (Phonex) and UPLC that the proposing certain additional technical period of time that we should allow for authorization procedure for BPL should and administrative requirements for BPL systems to come into compliance be the same as for all unintentional Access BPL. First, we are proposing to with any new requirements that we may radiators, including traditional types of require that Access BPL systems and adopt pursuant to this rule making carrier current systems. Low-speed devices incorporate capabilities that proceeding. We further seek comment carrier current systems, which for a would allow the operator to modify on whether Access BPL systems number of years have been operating system performance to mitigate or avoid currently deployed should be required inside buildings, have rarely been a harmful interference to radio services. to be brought into compliance with the source of harmful interference to radio Such adaptive interference mitigation new rules, and if so, what period of time communications, and the use of the techniques would include, for example, should be afforded for them to come verification procedure has been the capability to reduce power levels on into compliance. adequate to ensure that such systems a dynamic or remote controlled basis, 18. Finally, we propose to subject comply with the rules. We seek and the ability to include or exclude Access BPL systems to a notification comment on this proposal. specific operating frequencies or bands. requirement similar to the notification 20. Access BPL Measurement This capability would allow operators to requirements in our rules for power line Guidelines. Because Access BPL is a avoid localized and site-specific carrier (PLC) systems. Under this new implementation of carrier current harmful interference. requirement, an Access BPL system techniques, there are no existing 16. We believe that this requirement operator would submit information on measurement guidelines for this type of is reasonable and practicable for Access its system to an industry-operated equipment. We tentatively propose that BPL operators and equipment entity. The objective of the proposed Access BPL systems, including all BPL manufacturers to implement. We notification would be to establish a electronic devices, e.g., couplers, observe that a number of Access BPL publicly accessible database for Access injectors, extractors, repeaters, boosters, devices currently employ OFDM BPL information to ensure that the concentrators installed on the electric modulation techniques, which facilitate location of Access BPL systems and utility overhead or underground the ability to dynamically select the their operating characteristics are medium voltage lines etc., be measured specific frequencies used to provide identified if harmful interference occurs in-situ to demonstrate compliance with service and to avoid use of specific and to facilitate interference mitigation our part 15 rules, at a minimum of three frequencies where operation might and avoidance measures. We propose overhead and three underground result in harmful interference. In this that this notification includes representative locations, using the regard, we note that PowerWAN states information on the location of the measurement guidelines in Appendix C that ‘‘notching’’ of specific frequency is installation, the type of modulation of the NPRM. Consistent with existing technically feasible. Ambient indicates used and the frequency bands of FCC measurement procedures, that its equipment will be able to notch operation. We seek input on these measurements below 30 MHz must be out individual frequencies ‘‘on the fly,’’ proposals. We also request comment performed with a magnetic loop in response to short term changes in the and suggestions on the appropriate antenna, while those above 30 MHz are RF environment. Main.Net states that it industry-operated entity that we should performed using an electric field already has the capability to remotely select to receive the notifications and sensing antenna. For Access BPL in

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underground installations, the proposed requiring higher antenna heights, and CCS will ensure that emission guidelines employ the common should we specify that measurements measurements for determining the principle of measuring radiated fields that are performed at heights compliance of these systems with FCC along a number of radials at a specified significantly lower than the power line requirements are made in a consistent distance from the periphery of the pad- be subjected to a correction factor to manner, and with repeatable results. We mounted above-ground transformer estimate the maximum field strength request comments on these conclusions where the Access BPL equipment is that would have been observed at a and on all aspects of the proposals located, to find the maximum higher measurement height? How herein. emissions. For Access BPL installed on should such a correction factor be Initial Regulatory Flexibility Analysis overhead lines, in order to take into determined? 25. As required by the Regulatory account the effect of the long power line 23. Measurement Guidelines for Other Flexibility Act of 1980 as amended,1 the associated with the Access BPL Carrier Current Systems. In the Inquiry, Commission has prepared this present equipment, our proposed guidelines the Commission observed that the Initial Regulatory Flexibility Analysis specify measurements at fixed International Electrotechnical (IRFA) of the possible significant horizontal distances from the power line Commission (IEC), International Special economic impact on small entities by where the Access BPL source is Committee on Radio Interference the policies and rules proposed in this installed. Thus, rather than finding the (CISPR) Subcommittee I on Interference Notice of Proposed Rulemaking maximum emissions across a number of Relating To Multimedia Equipment, (‘‘NPRM’’). Written public comments radials,—as currently performed for Working Group 3 on Emission from are requested on this IRFA. Comments other part 15 emitters—the receive Information Technology Equipment is must be identified as responses to the antenna is moved down-line, parallel to developing conducted emission limits IRFA and must be filed by the deadlines the power line, starting from the Access for new BPL technologies. We note for comments provided in paragraph 53 BPL equipment location, to find the however that this international work on of the NPRM. The Commission will maximum emissions. Down-line a standardized measurement method for send a copy of this NPRM, including the distances used in this sequence of In-House BPL is still under way, IRFA, to the Chief Counsel for Advocacy measurements are specified in terms of including work on the definition of a of the Small Business Administration wavelength of the Access BPL mid-band line impedance stabilization network (SBA).2 In addition, the NPRM and frequency. We seek comment on these (LISN), associated injection methods, IFRA (or summaries thereof) will be guidelines. and conducted emission limits for published in the Federal Register.3 21. In addition, we specifically solicit systems using the power line port as a comments on the height of receive communication port. We tentatively A. Need for, and Objectives of, the antennas used for radiated emissions propose in the interim, pending the Proposed Rules measurements for Access BPL systems completion of such work, to retain the 26. A number of parties are currently operating on overhead power lines and three-installation radiated emissions operating Access BPL under our part 15 on the possible use of correction factors method for In-House BPL and rules. Access BPL systems are new types to account for antenna height. The traditional CCS, using the measurement of carrier current system that operate on proposed guidelines in Appendix C of guidelines in Appendix C of the NPRM, an unlicensed basis under part 15. the NPRM recommend a fixed loop which clarify principles used regarding Access BPL systems use existing antenna height at 1 meter and scanning in-situ test buildings, device installation electrical power lines as a transmission the height of electric field sensing location within a building, medium to provide high-speed antennas from 1 to 4 meters. While measurement distances from the communications capabilities by these recommendations correspond to building, measurement of emissions coupling RF energy onto the power line. standard practice for other types of from overhead power feed lines to the Because power lines reach virtually devices (especially when measured on a building, and device operation. We seek every community in the country, we test site), these heights may not capture comment on the measurement believe that Access BPL could play an the maximum emissions from an guidelines of Appendix C of the NPRM, important role in providing additional overhead power line. In Appendix C of for In-House BPL and CCS. competition in the offering of broadband the NPRM, we address this issue by 24. In conclusion, we believe that infrastructure to the American home specifying that distance extrapolation Access BPL has the potential to offer a and consumers. In addition, BPL could for emission measurements on overhead number of significant benefits, such as bring Internet and high-speed lines be based on slant-range distance (1) increasing the availability of broadband access to rural and from the Access BPL location on the broadband services to homes and underserved areas, which often are pole to the measuring antenna, rather businesses; (2) improving the difficult to serve due to the high costs than on horizontal distance. competitiveness of the broadband associated with upgrading existing 22. However, this technique does not services market; (3) improving the infrastructure and interconnecting account for field strength reductions quality and reliability of electric power communication nodes with new caused by ground effects. We seek delivery; and, (4) advancing homeland technologies. We propose to amend part comment on the following: security. We believe that our proposals 15 of our rules to adopt new (a) Is it necessary to require that contained herein to adopt new part 15 requirements and measurement emission measurements be conducted at technical and administrative rules for guidelines for Access broadband over antenna heights greater than those Access BPL will help promote and proposed in Appendix C of the NPRM? foster the development of this new 1 See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601 et. (b) Is it practical and safe to make in- technology with its concomitant seq. has been amended by the Contract With situ emission measurements at antenna benefits while at the same time ensuring America Advancement Act of 1996, Public Law 104–112, 110 Stat. 847 (1996) (‘‘CWAAA’’). Title II heights up to the height of an overhead that existing licensed operations are of the CWAAA is the Small Business Regulatory medium voltage power line (typically 11 protected from harmful interference. We Enforcement Fairness Act of 1996 (‘‘SBREFA’’). meters) when operating 10 meters from further believe that our proposed 2 See 5 U.S.C. 603(a). the power line? As an alternative to measurement guidelines for Access BPL 3 See 5 U.S.C. 603(a).

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power line (BPL). Specifically, we governmental jurisdiction’’ is defined as Given the above, the Commission propose new part 15 requirements for ‘‘governments of cities, counties, towns, estimates that the great majority of Access BPL to promote its growth while townships, villages, school districts, or wireless communications equipment continuing to protect licensed spectrum special districts, with a population of manufacturers are small businesses. We users. We further propose to adopt new less than fifty thousand.’’ 9 As of 1997, do not believe this action would have a measurement guidelines for Access BPL, there were approximately 87,453 negative impact on small entities that both in aerial (overhead) and governmental jurisdictions in the manufacture unlicensed BPL devices. underground configurations. For In- United States.10 This number includes Indeed, we believe the actions should House BPL and traditional CCS, we 39,044 counties, municipal benefit small entities because it should propose to clarify the measurement governments, and townships, of which make available increased business guidelines to ensure that measurements 27,546 have populations of fewer than opportunities to small entities. We are made in a consistent manner and 50,000 and 11,498 counties, municipal request comment on these assessments. provide for repeatable results in governments, and townships have determining compliance with our rules. populations of 50,000 or more. Thus, we D. Description of Projected Reporting, These actions will remove regulatory estimate that the number of small Recordkeeping and Other Compliance uncertainties, promote the deployment governmental jurisdictions is Requirements of BPL to bring the necessary approximately 75,955 or fewer. 31. Part 15 carrier current devices are competition in the provisioning of 30. The proposed rules pertain to already required to be authorized under broadband applications to the American manufacturers of unlicensed the verification procedure as a public as well as new high speed communications devices. The prerequisite to marketing and broadband access to underserved areas appropriate small business size standard importation. The reporting and of the country, while ensuring that is that which the SBA has established recordkeeping requirements associated licensed users continue to be protected for radio and television broadcasting with the equipment authorization from harmful interference. and wireless communications procedures would not be changed by the equipment manufacturing. This category B. Legal Basis proposals contained in this Notice. encompasses entities that primarily 32. We propose to adopt new 27. This action is taken pursuant to manufacture radio, television, and requirements for Access BPL to ensure sections 1, 4, 301, 302(a), 303, 307, 309, 11 wireless communications equipment. protection of licensed spectrum users 316, 332, 334, and 336 of the Under this standard, firms are Communications Act of 1934, as from harmful interference. These considered small if they have 750 or requirements include the proposed amended, 47 U.S.C. 151, 154, 301, fewer employees.12 Census Bureau data 302(a), 303, 307, 309, 316, 332, 334, and technical requirement for adaptive for 1997 indicate that, for that year, interference mitigation capabilities and 336. there were a total of 1,215 13 14 the proposed notification of Access BPL C. Description and Estimate of the establishments in this category. Of systems in a database similar to the one Number of Small Entities To Which the those, there were 1,150 that had required for existing Power Line Carrier Proposed Rules Will Apply employment under 500, and an systems. Although these proposals do additional 37 that had employment of 28. The RFA directs agencies to somewhat increase the reporting and 500 to 999. The percentage of wireless record keeping requirements for Access provide a description of, and, where equipment manufacturers in this feasible, an estimate of the number of 15 BPL systems, the benefit of ensuring category is approximately 61.35%, so protection to critical systems operated small entities that may be affected by the Commission estimates that the 4 by law enforcement groups, government the proposed rules, if adopted. The number of wireless equipment RFA defines the term ‘‘small entity’’ as users and emergency operations manufacturers with employment under outweighs this small cost that will having the same meaning as the terms 500 was actually closer to 706, with and ‘‘small business,’’ ‘‘small organization,’’ permit the growth of Access BPL in the additional 23 establishments having shared spectrum. and ‘‘small business concern’’ under employment of between 500 and 999. Section 3 of the Small Business Act.5 E. Steps Taken To Minimize Significant Under the Small Business Act, a ‘‘small 9 5 U.S.C. 601(5). Economic Impact on Small Entities and business concern’’ is one that: (1) Is 10 1995 Census of Governments, U.S. Census Significant Alternatives Considered independently owned and operated; (2) Bureau, United States Department of Commerce, is not dominant in its field of Statistical Abstract of the United States (2000). 33. The RFA requires an agency to operations; and (3) meets may 11 NAICS code 334220. describe any significant alternatives that 12 additional criteria established by the Id. it has considered in reaching its 13 The number of ‘‘establishments’’ is a less 6 proposed approach, which may include Small Business Administration (SBA). helpful indicator of small business prevalence in 29. A small organization is generally this context than would be the number of ‘‘firms’’ the following four alternatives (among ‘‘any not-for-profit enterprise which is or ‘‘companies,’’ because the latter take into account others): (1) The establishment of independently owned and operated and the concept of common ownership or control. Any differing compliance or reporting 7 single physical locations for an entity is an requirements or timetables that take into is not dominant in its field.’’ establishment, even though that location may be Nationwide, as of 1992, there were owned by a different establishment. Thus, the account the resources available to small approximately 275,801 small numbers given may reflect inflated numbers of entities; (2) the clarification, organizations.8 The term ‘‘small businesses in this category, including the numbers consolidation, or simplification of of small businesses. In this category, the Census compliance or reporting requirements breaks-out data for firms or companies only to give 4 See U.S.C. 603(b)(3). the total number of such entities for 1997, which under the rule for small entities; (3) the 5 Id. 601(3). was 1,089. use of performance, rather than design, 6 Id. 632. 14 U.S. Census Bureau, 1997 Economic Census, standards; and (4) an exemption from 7 5 U.S.C. 601(4). Industry Series: Manufacturing, ‘‘Industry Statistics coverage of the rule, or any part thereof, 8 1992 Economic Census, U.S. Bureau of the by Employment Size,’’ Table 4, NAICS code 334220 for small entities.16 Census, Table 6 (special tabulation of data under (issued August 1999). contract to Office of Advocacy of the U.S. Small 15 Id. Table 5, ‘‘Industry Statistics by Industry and Business Administration). Primary Product Class Specialization: 1997.’’ 16 5 U.S.C. 603(c).

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34. In this NPRM, we have owned, operated, or controlled by an inclusion in a data base. Such maintained the existing part 15 electric service provider. The electric information shall include the emission limits, which are applicable to power lines may be aerial (overhead) or installation locations, frequency bands all part 15 devices, including BPL. We underground. of operation, and type of modulation have also maintained the verification 3.Section 15.107 is amended by used. No notification to the FCC is method for equipment authorization of adding paragraph (e) to read as follows: required. BPL, which is the least burdensome § 15.107 Conducted limits. * * * * * equipment authorization procedure, * * * * * [FR Doc. 04–5271 Filed 3–16–04; 8:45 am] wherein the manufacturer conducts his BILLING CODE 6712–01–P own testing and retains the compliant (e) The limits shown in paragraphs (a) test data in his file. We have proposed and (b) of this section shall not apply to to adopt new measurement guidelines Access BPL systems. 4. Section 15.109 is amended by FEDERAL COMMUNICATIONS for BPL and existing carrier current COMMISSION systems, to assist manufacturers and revising paragraph (e), redesignating testing entities to follow clearer and paragraphs (f), (g) and (h) as paragraphs 47 CFR Part 73 more precise measurement procedures (h), (i) and (j), and by adding new paragraphs (f) and (g) to read as follows: [DA 04–366; MB Docket No. 04–34, RM– in the testing of BPL and CCS. 10848] F. Federal Rules That May Duplicate, § 15.109 Radiated emission limits. Overlap, or Conflict With the Proposed * * * * * Radio Broadcasting Services; Joliet Rules (e) Carrier current systems, including and Lemont, IL BPL systems, used as unintentional 35. None. AGENCY: Federal Communications radiators or other unintentional Commission. Ordering Clauses radiators that are designed to conduct ACTION: Proposed rule. 36. Pursuant to sections 1, 4, 301, their radio frequency emissions via 302(a), 303, 307, 309, 316, and 332 of connecting wires or cables and that SUMMARY: The Audio Division requests the Communications Act of 1934, as operate in the frequency range of 9 kHz comments on a petition for rule making amended, 47 U.S.C. 151, 154, 301, to 30 MHz, including devices that filed by HBC License Corporation 302(a), 303, 307, 309, 316, 332, 334, and deliver the radio frequency energy to proposing the reallotment of Channel 336, the Notice of Proposed Rule transducers, such as ultrasonic devices 228A from Joliet to Lemont, Illinois, and Making is hereby adopted. not covered under part 18 of this the modification of Station WVIX(FM)’s 37. The Commission’s Consumer and chapter, shall comply with the radiated construction permit accordingly Governmental Affairs Bureau, Reference emission limits for intentional radiators Channel 228A can be reallotted to Information Center, shall send a copy of provided in § 15.209 for the frequency Lemont in compliance with the this Notice of Proposed Rule Making, range of 9 kHz to 30 MHz. As an Commission’s minimum distance including the Initial Regulatory alternative, carrier current systems used separation requirements with a site Flexibility Analysis, to the Chief as unintentional radiators and operating restriction of 7.0 kilometers (4.4 miles) Counsel for Advocacy of the Small in the frequency range of 525 kHz to south at Station WVIX(FM)’s authorized Business Administration. 1705 kHz may comply with the radiated construction permit site. The emission limits provided in § 15.221(a). coordinates for Channel 228A at Lemont List of Subjects in Part 15 At frequencies above 30 MHz, the limits are 41–36–39 North Latitude and 88– Communications equipment, Radio, in paragraphs (a), (b) or (i) of this 00–33 West Longitude. In accordance Reporting and recordkeeping. section, as appropriate, continue to with Section 1.420(i) of the Federal Communications Commission. apply. For all BPL systems, the Commission’s Rules, we will not accept Marlene H. Dortch, requirements of this paragraph (e) and competing expressions of interest for the paragraph (a) of this section shall also Secretary. use of Channel 228A at Lemont, Illinois, apply to the emissions from all low- or require petitioner to provide an Proposed Rules voltage lines from the distribution equivalent class channel for the use of For the reasons discussed in the transformer to all in-building wiring. other interested parties. (f) Access BPL systems shall preamble, the Federal Communications DATES: Comments must be filed on or incorporate adaptive interference Commission proposes to amend 47 CFR before April 26, 2004, reply comments mitigation techniques such as dynamic part 15 as follows: on or before May 11, 2004. or remote reduction in power and ADDRESSES: Federal Communications PART 15—RADIO FREQUENCY adjustment in operating frequencies, in Commission, Washington, DC 20554. In DEVICES order for Access BPL installations to avoid site-specific, localized use of the addition to filing comments with the 1.The authority citation for part 15 same spectrum by licensed services. FCC, interested parties should serve the continues to read as follows: Access BPL systems shall incorporate a petitioner, or its counsel or consultant, Authority: 47 U.S.C. 154, 302a, 303, 304, shut-down feature to deactivate units as follows: Lawrence N. Cohn, Esq., 307, 336, and 544a.’ found to cause harmful interference. Cohn and Marks, LLP, 1920 N Street, (g) Entities operating Access NW., Suite 300, Washington, DC 20036 2. Section 15.3 is amended by adding (Counsel for Petitioner). paragraph (ff) to read as follows: Broadband over Power Line systems shall supply to a Federal FOR FURTHER INFORMATION CONTACT: § 15.3 Definitions. Communications Commission/National Sharon P. McDonald, Media Bureau, * * * * * Telecommunications and Information (202) 418–2180. (ff) Access Broadband over power line Administration recognized industry- SUPPLEMENTARY INFORMATION: This is a (Access BPL): A carrier current system operated entity, information on all synopsis of the Commission’s Notice of that transmits radio frequency energy by existing, changes to existing and Proposed Rule Making, MB Docket No. conduction over electric power lines proposed Access BPL systems for 04–34, adopted March 3, 2004, and

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released March 5, 2004. The full text of DEPARTMENT OF THE INTERIOR amendments, proposed exclusions, draft this Commission decision is available economic analysis, and draft for inspection and copying during Fish and Wildlife Service environmental assessment may be normal business hours in the FCC submitted to us at the hearing, or Reference Information Center (Room 50 CFR Part 17 directly by any one of several methods: CY–A257), 445 12th Street, SW., RIN 1018–AI20 (1) You may submit written comments Washington, DC. The complete text of and information to the Kansas this decision may also be purchased Endangered and Threatened Wildlife Ecological Services Field Office, U.S. from the Commission’s copy contractor, and Plants; Designation of Critical Fish and Wildlife Service, 315 Houston Qualex International, Portals, II, 445 Habitat for Topeka Shiner Street, Suite E, Manhattan, Kansas 12th Street, SW, Room CY–B402, 66502. AGENCY: Fish and Wildlife Service, (2) You may hand-deliver comments Washington, DC 20054, telephone 202– Interior. and information to the Kansas 863–2893, facsimile 202–863–2898, or ACTION: Proposed rule; revisions to Ecological Services Field Office, at the via e-mail [email protected]. proposed critical habitat, reopening of above address, or send comments via Provisions of the Regulatory comment period, notice of availability facsimile to (785) 539–8567. Flexibility Act of 1980 do not apply to of draft economic analysis and draft (3) You may send comments via this proceeding. environmental assessment, and electronic mail (e-mail) to _ Members of the public should note announcement of public meeting. fw6 [email protected]. For directions on that from the time a Notice of Proposed how to submit comments electronically, SUMMARY: We, the U.S. Fish and see the ‘‘Public Comments Solicited’’ Rule Making is issued until the matter Wildlife Service, announce the is no longer subject to Commission section. reopening of a 30-day public comment The complete file for this notice and consideration or court review, all ex period for the proposed rule to the proposed rule are available for parte contacts are prohibited in designate critical habitat for the Topeka public inspection, by appointment, Commission proceedings, such as this shiner (Notropis topeka) pursuant to the during normal business hours at the one, which involve channel allotments. Endangered Species Act of 1973, as above address. Copies of the proposed See 47 CFR 1.1204(b) for rules amended (Act). The proposed rule to rule, draft economic analysis, and draft governing permissible ex parte contacts. designate critical habitat in the States of environmental assessment are available For information regarding proper filing Iowa, Kansas, Minnesota, Nebraska, and by writing to the above address or by procedures for comments, see 47 CFR South Dakota was published on August connecting to the Service Internet Web 1.415 and 1.420. 21, 2002 (67 FR 54261). We herein site at http://mountain-prairie.fws.gov/ propose critical habitat segments for topekashiner/ch. List of Subjects in 47 CFR Part 73 Missouri and one additional segment for FOR FURTHER INFORMATION CONTACT: South Dakota, and discuss potential Radio, Radio broadcasting. Vernon Tabor, Kansas Ecological exclusions from critical habitat Services Field Office, at the above For the reasons discussed in the designation under the authority of address (telephone: (785) 539–3474, preamble, the Federal Communications section 4(b)(2). We also exclude habitat extension 110; facsimile: (785) 539– Commission proposes to amend 47 CFR on the Fort Riley Military Installation in 8567; e-mail: [email protected]). part 73 as follows: Kansas under authority of section 4(a)(3) of the Act. In addition, we announce the SUPPLEMENTARY INFORMATION: PART 73—RADIO BROADCAST availability of the draft economic Public Comments Solicited SERVICES analysis and draft environmental assessment for the proposed We intend for any final action 1. The authority citation for Part 73 designation, and announce a public resulting from this reopened proposal to continues to read as follows: meeting. be as accurate and effective as possible. Therefore, we are soliciting comments Authority: 47 U.S.C. 154, 303, 334 and 336. DATES: The public meeting will be held or suggestions from the public, other from 7 to 9 p.m. central standard time § 73.202 [Amended] concerned governmental agencies, the on April 13, 2004, in Boonville, scientific community, industry, 2. Section 73.202(b), the Table of FM Missouri. landowners, or any other interested Allotments under Illinois, is amended The comment period is hereby party regarding the revisions to the by removing Channel 228A at Joliet and reopened until April 16, 2004. We will proposed rule, the draft economic adding Lemont, Channel 228A. consider comments from all interested analysis, and the draft environmental parties on the proposed rule of August Federal Communications Commission. assessment. In addition, we are 21, 2002 (67 FR 54261), the additional requesting any further comments John A. Karousos, information provided herein, the draft regarding our August 21, 2002, Assistant Chief, Audio Division, Media economic analysis, and the draft proposed rule (67 FR 54261), pertaining Bureau. environmental assessment. We must to the designation of critical habitat in [FR Doc. 04–6043 Filed 3–16–04; 8:45 am] receive all comments by the closing the remainder of the Topeka shiner’s BILLING CODE 6712–01–P date. Any comments that we receive range, which includes portions of Iowa, after the closing date will not be Kansas (not including Fort Riley), considered in the final decision on this Minnesota, Nebraska, and South Dakota. proposal. We particularly seek comments ADDRESSES: The public meeting will be concerning: held at the Boonville High School, 1690 (1) The reasons why any habitat Ashley Rd., Boonville, Missouri. should or should not be determined to Written comments and materials be critical habitat as provided by section concerning the proposed rule and 4 of the Act, including whether the

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benefits of designation will outweigh submit written comments and conservation actions, we have any threats to the species resulting from information. Please submit electronic consistently found that, in most designation; comments in an ASCII file format and circumstances, the designation of (2) Specific information on the avoid the use of special characters and critical habitat is of little additional amount and distribution of Topeka encryption. Please also include ‘‘Attn: value for most listed species, yet it shiner and its habitat, and which habitat RIN 1018–AI20’’ and your name and consumes large amounts of conservation is essential to the conservation of this return address in your e-mail message. resources. Sidle (1987) stated, ‘‘Because species and why; If you do not receive a confirmation the Act can protect species with and (3) Land use designations and current from the system that we have received without critical habitat designation, or planned activities in the subject areas your e-mail message, please contact us critical habitat designation may be and their possible impacts on proposed directly at our Kansas Ecological redundant to the other consultation critical habitat; Services Field Office (see ADDRESSES requirements of section 7.’’ Currently, (4) Any foreseeable economic or other section and FOR FURTHER INFORMATION only 306 species or 25 percent of the impacts resulting from the proposed CONTACT). 1,211 listed species in the U.S. under designation of critical habitat, in Our practice is to make comments the jurisdiction of the Service have particular, any impacts on small entities that we receive on this rulemaking, designated critical habitat. We address or families; including names and home addresses of the habitat needs of all 1,211 listed (5) Whether our approach to critical respondents, available for public review species through conservation habitat designation could be improved during regular business hours. mechanisms such as listing, section 7 or modified in any way to provide for Individual respondents may request that consultations, the section 4 recovery greater public participation and we withhold their home address from planning process, the section 9 understanding, or to assist us in the rulemaking record, which we will protective prohibitions of unauthorized accommodating public concern and honor to the extent allowable by law. In take, section 6 funding to the States, and comments; some circumstances, we would the section 10 incidental take permit (6) Whether the economic analysis withhold from the rulemaking record a process. The Service believes that it is identifies all State and local costs. If not, respondent’s identity, as allowable by these measures that may make the what other costs are overlooked; law. If you wish for us to withhold your difference between extinction and (7) Whether the economic analysis name and/or address, you must state survival for many species. makes appropriate assumptions this request prominently at the regarding current practices and likely beginning of your comment. However, Procedural and Resource Difficulties in regulatory changes imposed as a result we will not consider anonymous Designating Critical Habitat of the designation of critical habitat; comments. We will make all We have been inundated with (8) Whether the economic analysis submissions from organizations or lawsuits for our failure to designate appropriately identifies land and water businesses, including the individuals critical habitat, and we face a growing use regulatory controls that will likely identifying themselves as number of lawsuits challenging critical result from the designation; representatives or officials of habitat determinations once they are (9) Whether the economic analysis organizations or businesses, available made. These lawsuits have subjected the appropriately identifies all costs that for public inspection in their entirety. Service to an ever-increasing series of could result from the designation; court orders and court-approved (10) Whether the economic analysis Designation of Critical Habitat Provides settlement agreements, compliance with correctly assesses the effect on regional Little Additional Protection to Species which now consumes nearly the entire costs associated with land use controls In 30 years of implementing the Act, listing program budget. This leaves the that derive from the designation; the Service has found that the Service with little ability to prioritize its (11) Whether the designation will designation of statutory critical habitat activities to direct scarce listing result in disproportionate economic provides little additional protection to resources to the listing program actions impacts to specific areas that should be most listed species, while consuming with the most biologically urgent evaluated for possible exclusion from significant amounts of available species conservation needs. the final designation; conservation resources. The Service’s The consequence of the critical (12) The economic analysis should present system for designating critical habitat litigation activity is that limited identify all costs related to the habitat has evolved since its original listing funds are used to defend active designation of critical habitat for the statutory prescription into a process that lawsuits, to respond to Notices of Intent Topeka shiner which was intended to provides little real conservation benefit, (NOIs) to sue relative to critical habitat, take place at the time the species was is driven by litigation and the courts and to comply with the growing number listed. As a result, the assumption is the rather than biology, limits our ability to of adverse court orders. As a result, economic analysis should be consistent fully evaluate the science involved, listing petition responses, the Service’s with the Service’s listing regulations. consumes enormous agency resources, own proposals to list critically Does this analysis achieve that and imposes huge social and economic imperiled species, and final listing consistency? costs. The Service believes that determinations on existing proposals are (13) Whether our characterization of additional agency discretion would all significantly delayed. existing regulatory protections in the allow our focus to return to those The accelerated schedules of court listing document is consistent with the actions that provide the greatest benefit ordered designations have left the costs of the regulation imposed as a to the species most in need of Service with almost no ability to result of this critical habitat protection. provide for adequate public determination. participation or to ensure a defect-free All previous comments and Role of Critical Habitat in Actual rulemaking process before making information submitted during the initial Practice of Administering and decisions on listing and critical habitat comment period need not be Implementing the Act proposals due to the risks associated resubmitted. Refer to the ADDRESSES While attention to and protection of with noncompliance with judicially- section for information on how to habitat is paramount to successful imposed deadlines. This in turn fosters

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a second round of litigation in which to include Topeka shiner habitat in the of the definition of critical habitat as it those who fear adverse impacts from State of Missouri and on the Fort Riley pertains to section 3(5)(A) of the Act. critical habitat designations challenge Military Installation, Kansas, under the The court stated that ‘‘whether habitat those designations. The cycle of authority of section 3(5)(A) of the Act. does or does not require special litigation appears endless, is very Following publication of the proposed management is not determinative on expensive, and in the final analysis rule, we opened a 60-day public whether the habitat is ‘critical’ to a provides relatively little additional comment period. We also held one threatened or endangered species.’’ The protection to listed species. public meeting in each of the six court affirmed the Secretary’s authority The costs resulting from the affected States during September 2002. to exclude areas from critical habitat designation include legal costs, the cost Due to budgetary constraints, we did not designation pursuant to section 4(b)(2) of preparation and publication of the finalize the designation of critical of the Act. designation, the analysis of the habitat by August 13, 2003. We The second issue is that section 318 economic effects and the cost of petitioned the court to extend this requesting and responding to public deadline until July 17, 2004, and, in an of the National Defense Authorization comment, and in some cases the costs order dated February 10, 2004, the court Act for Fiscal Year 2004 (Pub. L. 108– of compliance with NEPA all are part of granted us this extension. 136, adopted November 24, 2003) the cost of critical habitat designation. In the August 2002 proposed rule for amended the Endangered Species Act None of these costs result in any benefit designation of critical habitat for the by adding new language to section to the species that is not already Topeka shiner, we indicated our 4(a)(3), which prohibits the Service from afforded by the protections of the Act intention not to include critical habitat designating as critical habitat any lands enumerated earlier, and they directly in Missouri and on Ft. Riley, Kansas, in or other geographical areas owned or reduce the funds available for direct and the critical habitat designation. This was controlled by the Department of tangible conservation actions. based upon our interpretation of the Defense, or designated for its use, that definition of critical habitat found in are subject to an Integrated Natural Background section 3(5)(A) of the Act. Section Resources Management Plan (INRMP) The Topeka shiner is a small, stout 3(5)(A)(i) of the Act, as amended (16 prepared under section 101 of the Sikes minnow. It has a dorsal (back) side that U.S.C. 1531 et seq.), defines critical Act (16 U.S.C. 670a), if the Secretary of is olive-green, a distinct dark stripe habitat as areas on which are found the Interior determines in writing that preceding the dorsal fin, and a dusky those physical or biological features (I) such plan provides a benefit to the stripe running along the entire essential to the conservation of the species for which critical habitat is longitudinal length of the lateral line. species and (II) which may require proposed for designation. The Sikes Act The Topeka shiner is found in small-to special management considerations or Improvement Act of 1997 requires each mid-size prairie streams of the central protection. In order to give meaning to military installation that includes land prairie regions of the United States with the last clause of the definition, we have and water suitable for the conservation relatively high water quality and cool to considered that if an area was already and management of natural resources to moderate temperatures. Many of these adequately managed, there would be no complete an INRMP. An INRMP streams exhibit perennial flow, although requirement for special management integrates implementation of the some become intermittent during considerations or protection. A military mission of the installation with summer or periods of prolonged management plan is considered stewardship of the natural resources drought. The Topeka shiner’s historic adequate when it meets the following found there. Each INRMP includes an range includes portions of Iowa, Kansas, three criteria: (1) The plan provides a assessment of the ecological needs on Minnesota, Missouri, Nebraska, and conservation benefit to the species (i.e., the installation, including needs to South Dakota. The species continues to the plan must maintain or provide for provide for the conservation of listed exist in these States, but in most areas, an increase in the species’ population, species; a statement of goals and its range is greatly reduced. or the enhancement or restoration of its priorities; a detailed description of We published a final rule in the habitat within the area covered by the management actions to be implemented Federal Register on December 15, 1998, plan); (2) the plan provides assurances to provide for these ecological needs; designating the Topeka shiner as an that it will be implemented (i.e., those and a monitoring and adaptive endangered species; we also determined responsible for implementing the that designation of critical habitat for management plan. The Service consults management plan are capable of with the military on the development the species was not prudent (63 FR accomplishing the objectives, have an 69008). In an April 4, 2001, court and implementation of INRMPs for implementation schedule, and/or installations with listed species. settlement of the case, Biodiversity Legal adequate funding for the management Foundation et al. v. Ralph Morgenweck plan); and (3) the plan provides Because of the court’s decision and et al. (C00–D–1180), we agreed to assurances the management plan will be the amendment to the Act, we decided reconsider our prudency determination effective (i.e., it identifies biological to clarify the basis for proposed and, if prudent, to propose critical goals, has provisions for reporting exclusions to critical habitat for the habitat for the shiner by August 13, progress, and is of a duration sufficient Topeka shiner. In the following 2002, and to finalize our designation of to implement the plan and achieve the paragraphs we address our critical habitat by August 13, 2003. On plan’s goals and objectives). consideration of Fort Riley, Kansas August 21, 2002, we published a Subsequent to publication of the under section 4(a)(3), followed by our proposed rule in the Federal Register proposed rule, two issues arose. The clarification of the basis for our (67 FR 54261) for the designation of first issue is a January 2003 court ruling proposed exclusion of the State of Topeka shiner critical habitat. The on a separate case not pertaining to the Missouri. In addition, we are proposing proposed designation included 3,766 Topeka shiner (Center for Biological to designate one additional stream kilometers (km) (2,340 miles (mi)) of Diversity v. Norton, Civ. No. 01–409 segment in South Dakota as critical stream in the States of Iowa, Kansas, TUC DCB, D. Ariz., Jan. 13, 2003). In habitat, based on information received Minnesota, Nebraska, and South Dakota that ruling, a Federal District Court in since the proposed rule was published as critical habitat. We also proposed not Arizona disagreed with our application in 2002.

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Fort Riley, Kansas cost, and personnel needed; a checklist the three criteria listed in a previous We previously proposed not to of tasks; and an annual report paragraph of this preamble. include stream segments on the Fort (Department of the Army 2001). In the proposed rule for designation of Riley Military Installation, Kansas, in We evaluated the Fort Riley critical habitat for the Topeka shiner, we critical habitat, on the basis of our Endangered Species Management Plan evaluated Missouri’s State Action Plan for the Topeka Shiner (Action Plan) and interpretation of section 3(5)(A) of the for Topeka Shiner and the Fort’s associated Topeka shiner conservation Act. Because of the court’s decision and associated Topeka shiner conservation actions that have been completed, the amendment to the Act, we know actions that have been completed, ongoing, or planned in Missouri against clarify the basis for not proposing ongoing, or planned, against our three the three criteria to determine whether stream segments on Fort Riley. Section criteria used to determine whether the lands require ‘‘special management 4(a)(3) of the Act now allows the requirements of section 4(a)(3) are being considerations or protections.’’ The Secretary of the Department of the satisfied. This management plan Action Plan clearly provides Interior to exempt defense sites from provides conservation benefits to the conservation benefits to the species; the critical habitat designations if an species; the plan provides assurances Action Plan provides assurances that adequate INRMP is in place. The law that conservation efforts will be implemented; and the plan and efforts conservation efforts will be says the Secretary ‘‘shall not designate implemented because MDC has as critical habitat any lands or other of the Army will be effective since they include biological goals, restoration authority to implement the plan, has put geographical areas owned or controlled in place the funding and staffing by the Department of Defense * * * that objectives, and monitoring consistent with the draft Recovery Plan. necessary to implement the Plan, and are subject to an integrated natural has completed or begun work on many resources management plan * * * if the The primary benefit of proposing critical habitat is to identify lands significant elements of the Plan; and the secretary determines in writing that Action Plan and efforts of MDC will be essential to the conservation of the such a plan provides a benefit to the effective because they include biological species, which, if designated as critical species for which critical habitat is goals, restoration objectives, and habitat, would require consultation with proposed for designation.’’ monitoring consistent with a Service the Service to ensure that activities We consider an INRMP adequate preliminary draft Recovery Plan. We would not adversely modify critical under section 4(a)(3) for military continue to believe that the Missouri habitat. As previously discussed, Fort installations when it meets the same Action Plan provides for special Riley has a completed final INRMP that three criteria we consider under section management of the Topeka shiner under provides for sufficient conservation 3(5)(A) of the Act: (1) The plan provides the definition of critical habitat in management and protection for the a conservation benefit to the species section 3(5)(A) of the Act. However, as (i.e., the plan must maintain or provide Topeka shiner. Moreover, this INRMP a consequence of the court’s decision in for an increase in the species’ has already undergone section 7 Center for Biological Diversity v. Norton, population, or the enhancement or consultation with the Service prior to its we now propose the previously- restoration of its habitat within the area final approval. Further, activities excluded segments in Missouri, and also covered by the plan); (2) the plan authorized, funded, or carried out by the clarify the basis for proposing to provides assurances that it will be military or Federal agencies in these exclude these areas from the critical implemented (i.e., those responsible for areas that may affect the Topeka shiner habitat designation for Topeka shiner. implementing the management plan are will still require consultation under The 12 stream segments, representing capable of accomplishing the objectives, section 7 of the Act, based on the 148 km (92 mi) of stream, described have an implementation schedule, and/ requirement that Federal agencies below, constitute our best assessment of or adequate funding for the management ensure that such activities not areas in Missouri needed for the plan); and (3) the plan provides jeopardize the continued existence of conservation of the Topeka shiner, assurances the management plan will be listed species. This requirement applies based on the best scientific and effective (i.e., it identifies biological even without critical habitat designation commercial information available. goals, has provisions for reporting on these lands. These areas are: (1) Currently progress, and is of a duration sufficient Based on the foregoing discussion, we considered occupied by the Topeka to implement the plan and achieve the believe that the requirements of section shiner or provide critical links or plan’s goals and objectives). 4(a)(3) of the Act are satisfied in relation corridors between occupied habitats The Topeka shiner has been a focal to Topeka shiner habitat on Fort Riley. and/or potentially occupied habitats; (2) species for planning and conservation We, therefore, do not include these provide all or some of the primary efforts on Fort Riley since the early stream segments in the proposed critical constituent elements essential to the 1990s, with numerous stream surveys habitat for Topeka shiner. conservation of the species as described occurring from this time to the present. Missouri in our proposed rule; and (3) may Fort Riley initiated development of require special management management guidelines for the species We previously proposed not to considerations or protection. A more in 1994. The first Endangered Species include stream segments in the State of detailed description of the stream Management Plan for Topeka Shiner on Missouri in proposed critical habitat, segments follows (see ‘‘Proposed Fort Riley was formalized in 1997. This based on our interpretation of section Regulation Promulgation’’ section of management plan was revised and 3(5)(A) of the Act. We determined that this document for legal descriptions and incorporated into Fort Riley’s INRMP adequate special management or maps of these stream segments). 2001–2005, which was formalized July protection would be provided by a 1. Sugar Creek Complex (three stream 30, 2001 (Keating, Ft. Riley Natural legally operative plan that addresses the segments), Daviess and Harrison Resources Division, pers. comm. 2002). maintenance and improvement of Counties, Missouri. The stream This management plan outlines and essential habitat elements and that segments proposed in this complex describes conservation goals; provides for the long-term conservation provide the primary constituent management prescriptions and actions; of the species. We further determined elements necessary for designation as a monitoring plan; estimates of time, that a plan is adequate when it meets critical habitat, including natural stream

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morphology and in-stream habitat. those areas from the final designation We are herein providing notice of Stream habitat within this complex can outweigh the benefits of including them. availability of an analysis of the be characterized as moderate in quality, If we determine that the benefits of economic impacts of designating these with the watershed draining a mosaic of exclusion are greater than those of areas as critical habitat, along with an cropland and pastureland. This complex designation, critical habitat will be opportunity for the public to formally includes portions of the mainstem of excluded from the final designation comment on this analysis. This Sugar Creek, Tombstone Creek, and an pursuant to section 4(b)(2). economic analysis along with the unnamed tributary to Sugar Creek. A For our evaluation of potential critical analysis of other relevant beneficial and downstream portion of Sugar Creek has habitat sites in Missouri, we have detrimental impacts will serve as the been severely altered by channelization, conducted an analysis of the economic basis of our analysis under section and does not provide the primary impacts and other relevant impacts of 4(b)(2), and our determination of any constituent elements. designating critical habitat. Economic exclusions from critical habitat finalized 2. Moniteau Creek Complex (four factors include: (1) Costs to us and in our future final rule. The final rule stream segments), Cooper and Moniteau Federal action agencies from increased will contain our analysis of economic Counties, Missouri. Stream habitat workload to conduct consultations factors and other relevant impacts of within this complex can be under section 7 of the Act and technical designating critical habitat in Missouri, characterized as moderate to good in assistance associated with critical and our consideration of comments quality, with the watershed draining a habitat; (2) costs of modifying projects, received during the public comment mosaic of cropland, woodlands, and activities, or land uses resulting from period. As a result, we may identify pastureland. Riparian areas are mostly consultations involving critical habitat; certain areas that will be excluded from wooded and appear stable. This (3) costs of delays from increased the final critical habitat designation, and complex includes portions of Moniteau consultations involving critical habitat; if so, the final critical habitat Creek, an unnamed tributary to (4) costs of reduced property values or determination may exclude or reduce in Moniteau Creek, Smiley Creek, and income resulting from increased extent the areas described in this Pisgah Creek. regulation of critical habitat designation; proposal. 3. Bonne Femme Creek Complex (five (5) potential offsetting economic In Missouri, the Topeka shiner stream segments), Boone County, benefits associated with critical habitat, historically occurred in small, Missouri. The Bonne Femme Creek including educational benefits. headwater streams in northern portions complex is comprised of four tributary Other relevant impacts include: (1) of the State, within the Missouri/Grand streams, including Turkey Creek, Bass The willingness of landowners and land River Watershed. The Topeka shiner has Creek, and two unnamed tributary managers to work with natural resource been a focal species for planning and streams to Bass Creek, as well as a agencies and participate in voluntary conservation efforts in the State since portion of mainstem Bonne Femme conservation activities that directly the mid-1990s. In 1995, the Missouri Creek. Extensive watershed benefit the Topeka shiner and other Department of Conservation (MDC) modification is occurring throughout threatened or endangered species, established a 5-member Topeka Shiner this basin as the growth of Columbia, including such cooperative partnerships Working Group, and a 16-member Missouri, rapidly spreads through this as Safe Harbor Agreements; (2) the Advisory Group to direct, implement, watershed from the north. There have implementation of various cooperative and facilitate Topeka shiner recovery been no documented collections of conservation measures agreed to actions in Missouri. In 1996, the MDC, Topeka shiners from the streams of the through various State and local with approval of the Conservation Bonne Femme Creek watershed since partnerships, such as those outlined in Commission of Missouri (Conservation 1997. However, it has yet to be Missouri’s State Action Plan or through Commission), listed the Topeka shiner determined if the species has been similar collaborative efforts; (3) as an endangered species under the completely eliminated from the management or regulatory flexibility, State’s Wildlife Code (Conservation watershed or is still present in very such as the establishment of Commission 2001). reduced numbers. The stream segments nonessential experimental populations In 1999, the Conservation in this complex provide the primary under section 10(j) of the Act, to recover Commission established the Private constituent elements, including natural Topeka shiners through reintroductions; Lands Services Division within the stream morphology and in-stream and (4) opportunities and interest of MDC. Eighty-three MDC staff were habitat. landowners to participate in various redirected to private land conservation Section 4(b)(2) of the Act requires that incentive and assistance programs throughout the State, including a we take into consideration the economic offered by the Service and other Federal, minimum of 16 Private Lands Services impact, the impact on national security, State, and local agencies that restore personnel with responsibility for the and any other relevant impact, of habitats and improve water quality in counties with Topeka shiner habitat. specifying any particular area as critical watersheds containing Topeka shiners. Duties of personnel within this division habitat. We may exclude areas from Benefits of designating critical habitat include the facilitation of conservation critical habitat designation if we include: (1) Focusing conservation efforts on private property throughout determine that the benefits of such activities for listed species by Missouri for all federally listed species, exclusion outweigh the benefits of identifying areas essential to conserve including the Topeka shiner. including the areas within critical the species; (2) increasing awareness by Additionally, there are at least 86 habitat, unless we determine, based on the public and land management fisheries, forestry, natural history, the best scientific and commercial data agencies of the importance of these protection, and wildlife staff delivering available, that the failure to designate areas for conservation of the species; services to private landowners as a such areas as critical habitat will result and (3) assisting Federal, State, and routine aspect of their job within the in the extinction of the species. For the local agencies in prioritizing landowner Missouri/Grand River Watershed. areas of Missouri that were not included incentive programs, developing In January 1999, MDC adopted and in the proposed designation pursuant to agreements with private landowners, approved an Action Plan for the Topeka the definition of critical habitat, we and implementing other conservation shiner in Missouri (MDC 1999). The believe that the benefits of excluding and land management programs. Action Plan identifies comprehensive

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conservation measures and programs Implementation of recovery efforts for current status of tasks in the Action Plan necessary to achieve recovery of the the Topeka shiner in Missouri, as is described in Table 1 below: Topeka shiner in Missouri. outlined in this plan, is ongoing. The

TABLE 1.—STATUS OF TASKS IN THE MISSOURI STATE ACTION PLAN FOR THE TOPEKA SHINER

Item Status

Establishment of the Missouri Topeka Shiner Working Group ...... Complete & Ongoing. Development & ongoing implementation of the Action Plan ...... Complete (1999) & Ongoing. Establishment of permanent sampling sites & standardized monitoring of Missouri’s Topeka Annual Monitoring—Ongoing/Initiated (began in shiner populations & completion of recent Statewide survey for the species. 2000) Statewide Surveying-Complete & On- going. Initiation of artificial propagation of Topeka shiners, including the development & refinement of Complete & Ongoing. captive rearing techniques. Completion of genetic analysis of different populations of Topeka shiners in Missouri ...... Complete. Incorporation of Topeka shiner recovery & conservation efforts in State strategic planning docu- Complete & Ongoing. ments on several different levels. Development & dissemination of public outreach & education materials throughout Missouri & Complete & Ongoing. elsewhere. Completion & dissemination of several ecological & life history studies involving Topeka shiner Ongoing/Initiated. Securing matching funds from the Service to conduct surveys & ecological studies, & for var- Complete & Ongoing. ious habitat restoration & enhancement activities. Revision of the Action Plan that will include actions not yet completed since 1999 & those Planned. uncompleted actions identified in the Service’s preliminary draft Recovery Plan. Implementation of a landowner incentive program & completion of a study on the potential im- Completed (CAFO study). Ongoing/Initiated pacts of Confined Animal Feeding Operations (CAFO) within the Moniteau Creek Watershed. (landowner incentive program). Development of 10-year fish monitoring plans for Moniteau, Bonne Femme, & Sugar Creek Complete—Plan developed with initial sampling Watersheds. conducted in 2000 & annual sampling since. Development & implementation of Sugar Creek subbasin management plan...... Complete & Ongoing. Development & implementation of a Three Creeks Conservation Area management plan ...... Complete & Ongoing. Protection & management of Bonne Femme Creek by establishing these watersheds as Mis- Complete & Ongoing. souri Department of Natural Resources’ Non-point Source Pollution Special Area Land Treat- ment watersheds. Reestablishment or restoration of riparian corridors through tree plantings, natural regeneration, Initiated/Ongoing. fencing to restrict livestock use of stream banks, creation of alternative livestock watering sources, establishment of warm season grass buffer strips, stream bank stabilization activi- ties, & actions outlined in grazing plan developed for private landowners within the Bonne Femme, Moniteau, & Sugar Creek Watersheds.

Assurances that the Action Plan will currently exists or where the species were incorporated, in part, into a be implemented and conservation of the may be reintroduced. The planned Service preliminary draft Recovery Plan. Topeka shiner will be achieved in expansion of our Partners for Fish and In addition, the MDC, in implementing Missouri is demonstrated by the Wildlife Program within Topeka shiner- the Action Plan, has established following actions. Between January occupied habitat will benefit an cooperative working relationships with 1999 and December 31, 2003, at least additional 10–15 landowners at an private landowners. These relationships $351,100 was spent on recovery actions estimated cost of $100,000 within the have allowed for the implementation of for the Topeka shiner in Missouri, and next 5 years (Kelly Srigley Werner, conservation programs for the benefit of that total is likely to increase to at least Missouri Private Lands Coordinator, the Topeka shiner. $600,000 within the next 10 years. pers. comm.). MDC Fisheries and We provide the following preliminary Eighty percent (i.e., 12 of 15) of the Natural History Division staffs have 4(b)(2) analysis of the benefits of priority 1 tasks (i.e., those actions committed to help coordinate and inclusion and the benefits of exclusion deemed necessary to prevent extinction implement Topeka shiner recovery in assessing the potential exclusion of critical habitat in Missouri. of the species) identified and outlined efforts between the MDC and Federal, in the implementation schedule of a State, and private entities, and MDC’s (1) Benefits of Inclusion Service preliminary draft Recovery Plan Topeka Shiner Recovery Coordinator. Federal actions that adversely affect have either been completed or are The MDC is actively participating in the critical habitat must undergo currently being implemented (this Topeka Shiner Recovery Team. MDC’s consultation under section 7 of the Act. includes 20 percent of tasks that are 100 revisions to the Action Plan, scheduled Consultations on Federal actions percent completed, 47 percent of tasks for completion in 2004, will focus on involving critical habitat ensure that that are 50 percent or greater completed, incorporating any of the recovery habitat needed for the survival and and 33 percent of tasks that are 25 actions outlined in a Service recovery of a species is not destroyed or percent or less completed) by the MDC preliminary draft Recovery Plan that are adversely modified. However, if in cooperation with us, the Topeka currently not addressed. The scientific adequate protections are provided in Shiner Recovery Team, and other soundness of the MDC’s Action Plan another manner (e.g., implementation of Federal, State, and private entities. The was further validated by us and the MDC’s State Action Plan), there is no Private Land Services Division within Recovery Team when the Action Plan’s benefit due to designation of critical MDC greatly facilitates the monitoring protocol and habitat. implementation of recovery actions on recommendations for reducing and Other possible benefits of critical private property where the species eliminating threats to the Topeka shiner habitat include educating the public

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regarding the conservation value of an three proposed areas in Missouri (Bon information on additional Topeka area, focusing conservation activities on Femme and Moniteau Creeks) would shiner habitat in South Dakota. In these essential areas, and assisting other have significantly higher costs for examining this information, we parties in conservation and land consultation under section 7 of the Act concluded that habitat within Stray management programs. In Missouri, the than most areas proposed as Topeka Horse Creek, Hamlin County, South educational benefits that may be shiner critical habitat. This is despite Dakota, contains the necessary elements afforded by a critical habitat designation the fact that minimal project for proposal as critical habitat. We are are already provided through modifications requiring consultation proposing one additional 24-km (15-mi) implementation of the Action Plan. under section 7 of the Act are projected long stream segment in South Dakota, for activities conducted within these based on information received since the (2) Benefits of Exclusion two watersheds. Consequently, proposed rule was published in 2002 The benefits of excluding Missouri Industrial Economics, Inc. estimates that (see ‘‘Proposed Regulation from designated critical habitat would consultations conducted within these Promulgation’’ section of this document include: Maintenance of effective two watersheds would be for legal description and map of this working partnerships to promote the administratively and economically stream segment). Off-channel and side- conservation of the Topeka shiner and burdensome to local communities channel habitat, as well as main- its habitat; establishment of new (Jessica Sargent-Michaud, Industrial channel habitat, also is proposed for this partnerships; providing benefits from Economics, Inc., pers. comm.). additional stream. the Action Plan to the Topeka shiner In summary, we view the continued 1. Stray Horse Creek (one stream and its habitat which exceed those that implementation of the Action Plan and segment), Big Sioux River Watershed, would be provided by the designation of the cooperative conservation Hamlin County, South Dakota. The critical habitat; avoiding added partnerships with landowners to be stream reach proposed for designation administrative costs to the Service, essential for the conservation of the runs upstream from the confluence with Federal agencies, and applicants; and Topeka shiner in Missouri. We believe the Big Sioux River, including adjacent future regulatory flexibility for the that the benefits of including critical off-channel pool habitat. Service and landowners by maintaining habitat in Missouri are small due to the We are giving consideration to the ability to reintroduce the shiner to successful implementation of exempting South Dakota from critical formerly occupied streams in Missouri conservation actions, as identified in the habitat designation under section 4(b)(2) by experimental populations under Action Plan, through multiple of the Act. Since the listing of the section 10(j) of the Act. partnerships. We believe the benefits of Topeka shiner in 1998, additional Recovery of listed species is often excluding Missouri areas from critical surveys conducted for this species in achieved through partnerships and habitat greatly exceed the limited South Dakota have located extensive voluntary actions. Through the Action benefits of including them. occupied habitat that was unknown at Plan, the MDC has gained the Furthermore, we believe that exclusion the time of listing. These demonstrate cooperation of landowners and has been from critical habitat in this State will that the entire historical range of the successful in developing voluntary not result in the extinction of the Topeka shiner continues to be occupied conservation partnerships with these Topeka shiner. In accordance with in South Dakota. Furthermore, these landowners. Cooperators, with the 4(b)(2) of the Act, we believe that the surveys have considerably increased the assistance of MDC, are implementing benefits of excluding critical habitat in known number of occupied streams in conservation measures for the Topeka Missouri outweigh the benefits of South Dakota. South Dakota has also shiner and its habitat in accordance designating critical habitat, and are completed a State Management Plan for with management objectives outlined in proposing to exclude areas in Missouri the Topeka shiner. We will continue to the Action Plan. These actions range containing primary constituent elements evaluate whether listing of areas in from allowing access to private lands for from the critical habitat designation. South Dakota as critical habitat will surveys and site visits to rehabilitation In making our final decision with appreciably benefit the Topeka shiner of habitat and implementation of regard to areas in Missouri containing beyond the protection already afforded measures to control erosion and primary constituent elements, we will the species under the Act and that sedimentation. The partners have consider several factors, including the afforded by the State Management Plan. committed to conservation measures benefits provided to the Topeka shiner benefiting the Topeka shiner that are from the Missouri Action Plan for the Kansas greater than the benefits of designating Topeka Shiner, as described in the We are giving consideration to critical habitat. It is likely that many August 2002 proposal. You may request exempting Kansas from critical habitat current and potential partners will not a copy of the Action Plan by contacting designation under section 4(b)(2) of the assume the cost and work associated the Field Supervisor, U.S. Fish and Act. The Topeka shiner is a State-listed with implementing voluntary Wildlife Service, 101 Park DeVille Dr., threatened species in Kansas under the management and protection if critical Suite A, Columbia, MO 65203. Kansas Nongame and Endangered habitat is designated regardless of their Species Conservation Act. The State has South Dakota desire to contribute to the conservation also designated its own critical habitat of the species. The MDC has advised us In our proposal to designate critical for the Topeka shiner. We will continue that the support of voluntary habitat for Topeka shiner published on to evaluate whether listing of areas in conservation actions of private August 21, 2002 (67 FR 54262), we Kansas as critical habitat will landowners that benefit Topeka shiner proposed to designate 40 stream appreciably benefit the Topeka shiner recovery in the State could be segments in South Dakota totaling 1,475 beyond the protection already afforded withdrawn if critical habitat is km (917 mi) of stream channel. In the the species under the Act and State laws designated. Big Sioux River basin of South Dakota and regulations. In the draft Economic Analysis of and Minnesota, we also proposed off- Critical Habitat Designation for the channel/side-channel pool habitat for Land Ownership Topeka Shiner, Industrial Economics, designation. After the publication of the The majority of stream segments Inc. (2003) determined that two of the August 2002 proposal, we received containing primary constituent elements

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in Missouri and South Dakota are in section 4(b)(2) in this document. subchapter B of chapter I, title 50 of the private ownership and are primarily However, we have identified and Code of Federal Regulations, as used for grazing and crop production. recommended areas in Missouri that we published in the Federal Register of Additionally, a portion of the Charles believe, at this time, qualify for August 21, 2002, starting on page 54262, Green State Wildlife Management Area, exclusion under section 4(b)(2). Upon as follows: owned by the State of Missouri and completion of the economic analysis managed by the MDC, is within the supplement, we will analyze the PART 17—[AMENDED] Bonne Femme Creek Complex of supplement, public comments on the 1. The authority citation for part 17 Missouri. draft economic analysis, and this continues to read as follows: proposal, and the benefits of designating Economic Analysis areas as critical habitat in Missouri. At Authority: 16 U.S.C. 1361–1407; 16 U.S.C. The draft economic analysis estimates that time, we will make a final 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– the foreseeable economic impacts of the determination whether certain areas 625, 100 Stat. 3500; unless otherwise noted. critical habitat designation on containing primary constituent elements 2. In §17.95, as proposed to be government agencies and private should be excluded from the final amended by 67 FR 54262: businesses and individuals. The Service critical habitat designation, provided a. Revise paragraph (e)(1); will make its final decisions about these exclusions will not result in the b. Redesignating paragraphs (e)(15) exclusions based on economic impact, extinction of the species. As a result, the through (e)(18) as paragraphs (e)(16) when it has obtained public comments final critical habitat determination may through (e)(19) and adding a new on the economic analysis and produced differ from the proposal. paragraph (e)(15); an addendum to the economic analysis Public Meeting c. Adding Map 10a and related text containing its final conclusions. The after the new paragraph (e)(15); and Service is interested in comments from The Act provides for one or more d. Adding new paragraphs (e)(20) the public on the draft economic public hearings or meetings on critical through (e)(22), including maps and analysis, on whether any of the areas habitat proposals, if requested. legal descriptions: identified in the economic analysis as Previously, following the publication of having economic effects should be the initial proposed rule on August 21, § 17.95 Critical habitat—fish and wildlife. excluded for economic reasons, and 2002 (67 FR 54261), we held six public * * * * * whether those or any other areas should meetings across the species’ range (e) Fishes. *** be excluded for other reasons. concerning the designation of critical * * * * * The Act requires us to designate habitat for the Topeka shiner. Due to the critical habitat on the basis of the best reopening of the comment period, and Topeka Shiner (Notropis topeka) scientific and commercial information the changes herein to the proposed (1) Critical habitat is depicted for available, and to consider the economic designation of critical, we have Calhoun, Carroll, Dallas, Greene, and other relevant impacts of scheduled an additional public meeting. Hamilton, Lyon, Osceola, Sac, Webster, designating these areas as critical The public meeting will be held at and Wright Counties, Iowa; Butler, habitat. We may exclude areas from Boonville High School, 1690 Ashley Chase, Dickinson, Geary, Greenwood, critical habitat upon a determination Rd., Boonville, Missouri, on April 13, Marion, Marshall, Morris, Pottawatomie, that the benefits of such exclusions 2004, from 7 p.m. to 9 p.m. Riley, Shawnee, Wabaunsee, and outweigh the benefits of designating Author Wallace Counties, Kansas; Lincoln, these areas as critical habitat. We cannot Murray, Nobles, Pipestone, and Rock exclude areas from critical habitat when The primary author of this proposed Counties, Minnesota; Boone, Cooper, the exclusion will result in the rule is Vernon Tabor, Kansas Ecological Daviess, Harrison, and Moniteau extinction of the species. The draft Services Field Office (see ADDRESSES). Counties, Missouri; Madison County, economic analysis serves as the basis of Authority Nebraska; Aurora, Beadle, Brookings, our economic analysis under section Clay, Davison, Deuel, Hamlin, Hanson, 4(b)(2), and of any recommended The authority for this action is the Hutchinson, Lincoln, McCook, Miner, exclusions made in this document for Endangered Species Act of 1973, as Minnehaha, Moody, and Turner Missouri. Since the economic analysis amended (16 U.S.C. 1531 et seq.). Counties, South Dakota, on the maps supplement will not be completed until Proposed Regulation Promulgation and as described below. after we receive comments from the public on the draft economic analysis, For the reasons stated in the * * * * * we cannot identify final exclusions from preamble, we propose to amend the (15) Map 10a follows: critical habitat designation under proposed amendments to part 17, BILLING CODE 4310–55–P

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Stray Horse Creek—Hamlin County, (T114N, R51W, Sec. 7), upstream South Dakota through T115N, R51W, Sec. 3. 20. Stray Horse Creek from its * * * * * confluence with the Big Sioux River (20) Map 15 follows:

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Sugar Creek Complex 1b. Unnamed tributary to Sugar Creek 1c. Tombstone Creek from its 1a. Sugar Creek from its confluence from its confluence with Sugar Creek confluence with Sugar Creek (T62N, with Tombstone Creek (T62N, R26W, (T62N, R26W, Sec. 8), upstream through R26W, Sec. 25), upstream through Sec. 25), upstream through T64N, T62N, R27W, Sec. 14. T62N, R26W, Sec. 29. R27W, Sec. 35. (21) Map 16 follows:

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Moniteau Creek Complex 2b. Pisgah Creek from its confluence 24), upstream through T46N, R17W, with Moniteau Creek (T46N, R15W, Sec. Sec. 36. 2a. Moniteau Creek from its 19), upstream through T47N, R16W, 2d. Unnamed tributary to Moniteau confluence with Pisgah Creek (T46N, Sec. 36. Creek from its confluence with R15W, Sec. 19), upstream through 2c. Smiley Creek from its confluence Moniteau Creek (T46N, R17W, Sec. 21), T45N, R17W, Sec. 17. upstream through T46N, R17W, Sec. 19. with Moniteau Creek (T46N, R17W, Sec. (22) Map 17 follows:

Bonne Femme Creek Complex 3b. Turkey Creek from its confluence 3c. Bass Creek from its confluence 3a. Bonne Femme Creek from its with Bonne Femme Creek (T47N, R12W, with Turkey Creek (T47N, R12W, Sec. confluence with Turkey Creek (T47N, Sec. 20), upstream to U.S. Highway 63 20), upstream through T47N, R12W, R12W, Sec. 20), upstream through (T47N, R12W, Sec. 15). Sec. 35. T47N, R12W, Sec. 12.

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3d. Unnamed tributary to Bass Creek 3e. Unnamed tributary to Bass Creek Dated: March 5, 2004. from its confluence with Bass Creek from its confluence with Bass Creek Craig Manson, (T47N, R12W, Sec. 27), upstream (T47N, R12W, Sec. 27), upstream Assistant Secretary for Fish and Wildlife and through T46N, R12W, Sec. 4. through T46N, R12W, Sec. 3. Parks. [FR Doc. 04–5926 Filed 3–16–04; 8:45 am] BILLING CODE 4310–55–P

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Notices Federal Register Vol. 69, No. 52

Wednesday, March 17, 2004

This section of the FEDERAL REGISTER FOR FURTHER INFORMATION CONTACT: easement. Landowner donations up to contains documents other than rules or Denise Coleman, NRCS; phone: (202) 25 percent of the appraised fair market proposed rules that are applicable to the 720–9476; fax: (202) 720–0745; or e- value of the conservation easement may public. Notices of hearings and investigations, mail: [email protected]; be considered part of the entity’s committee meetings, agency decisions and Subject: FRPP, or consult the NRCS Web matching offer. For the entity, two cost- rulings, delegations of authority, filing of petitions and applications and agency site at http://www.nrcs.usda.gov/ share options are available when statements of organization and functions are programs/farmbill/2002/PubNotc.html. providing its matching offer. One option examples of documents appearing in this This announcement will also be posted is for the entity to provide in cash at section. at the following Web site: http:// least 25 percent of the appraised fair www.fedgrants.gov. market value of the conservation easement. The second option is for the SUPPLEMENTARY INFORMATION: DEPARTMENT OF AGRICULTURE entity to provide at least 50 percent of Background the purchase price, in cash, of the Commodity Credit Corporation Urban sprawl continues to threaten conservation easement. The second the Nation’s farm and ranch land as option may be preferable to an entity in Farm and Ranch Lands Protection the case of a large bargain sale by the Program social and economic changes over the past three decades have influenced the landowner. If the second option is AGENCY: Commodity Credit Corporation, rate at which land is converted to non- selected, the NRCS share cannot exceed Department of Agriculture (USDA). agricultural uses. Population growth, the entity’s contribution. The following two examples illustrate ACTION: Notice of request for proposals. demographic changes, the housing how these two cost-share options may market, expansion of transportation SUMMARY: function. Under Option 1 where 25 Section 2503 of the Farm systems, and economic prosperity have percent of the appraised fair market Security and Rural Investment Act of contributed to increases in agricultural value is selected by the entity, the total 2002 (Pub. L. 107–171) amended the land conversion rates. The amount of appraised fair market value of the Food Security Act of 1985 to include the farm and ranch land lost to conservation easement is $1 million. Farm and Ranch Lands Protection development and the quality of Program (FRPP), formerly called the The landowner chooses to donate 40 farmland being converted are significant Farmland Protection Program (FPP). percent of the appraised fair market concerns. In most States, prime Congress delegated authority to value, resulting in the actual easement farmland is being converted at two to administer FRPP to the Chief of the purchase price being $600,000. In this four times the rate of other, less- Natural Resources Conservation Service case, the cooperating entity contributes productive agricultural land. (NRCS). NRCS, on behalf of the $250,000 and NRCS contributes There continues to be an important Commodity Credit Corporation (CCC) $350,000. Option 2, where 50 percent of national interest in the protection of and using its authorities, requests the purchase price is selected, occurs farmland. Land use devoted to proposals from Federally-recognized when a landowner makes a large agriculture provides an important Indian tribes, States, units of local charitable donation, and 25% of the contribution to environmental quality, government, and nongovernmental appraised fair market value exceeds 50 protection of the Nation’s historical and organizations to cooperate in the percent of the purchase price. For archaeological resources, and scenic acquisition of conservation easements example, the total appraised fair market beauty. on farms and ranches. Eligible land value of the conservation easement is $1 includes farm and ranch land that has Availability of Funding million. The landowner chooses to donate 60 percent of the appraised fair prime, unique, or other productive soil, Effective on the publication date of market value, resulting in the actual or that contains historical or this notice, NRCS announces the easement purchase price being archaeological resources. These lands availability of up to $84 million for must also be subject to a pending offer $400,000. In this case, NRCS and the FRPP, until September 30, 2004. The from eligible entities for the purpose of cooperating entity both contribute NRCS State Conservationist must protecting topsoil by limiting $200,000. receive proposals for participation conversion of that land to within 45 days of the date of this notice. Definitions nonagricultural uses. Over $84 million State, Tribal, and local government in FRPP funds is available to purchase For the purposes of this notice, the entities and nongovernmental conservation easements in fiscal year following definitions apply: organizations, as defined herein, may 2004. Chief means the Chief of NRCS, apply. Selection will be based on the USDA. DATES: Proposals must be received in criteria established in this notice, and Commodity Credit Corporation (CCC) the NRCS State Office by May 3, 2004. additional criteria developed by the is a Government-owned and operated ADDRESSES: Written proposals should be applicable State Conservationist. entity that was created to stabilize, sent to the appropriate NRCS State Pending offers by an eligible entity must support, and protect farm income and Conservationist, Natural Resources be for acquiring an easement for prices. CCC is managed by a Board of Conservation Service, USDA, in the perpetuity, except where State law Directors, subject to the general State where the parcel is located. The prohibits a permanent easement. supervision and direction of the telephone numbers and addresses of the Under the FRPP, NRCS may provide Secretary of Agriculture, who is an ex- NRCS State Conservationists are in the up to 50 percent of the appraised fair officio director and chairperson of the appendix of this notice. market value of the conservation Board. CCC provides the funding for

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FRPP, and NRCS administers FRPP on Neither the seller nor the buyer act Non-governmental organization is its behalf. under any compulsion to buy or sell, defined as any organization that: Conservation Easement means a giving due consideration to all available (1) Is organized for, and at all times voluntary, legally recorded restriction, economic uses of the property at the since the formation of the organization, in the form of a deed, on the use of time of the appraisal. In valuing has been operated principally for one or property, in order to protect resources conservation easements, the appraiser more of the conservation purposes such as agricultural lands, historic estimates both the fair market value of specified in clause (i), (ii), (iii), or (iv) structures, open space, and wildlife the whole property before the easement of section 170(h)(4)(A) of the Internal habitat. acquisition and the fair market value of Revenue Code of 1986; Conservation Plan is the document the remainder property after the (2) Is an organization described in that— conservation easement has been section 501(c)(3) of that Code that is (1) Applies to highly erodible imposed. The difference between these exempt from taxation under 501(a) of cropland; two values is deemed the value of the that Code; (2) Describes the conservation system conservation easement. (3) Is described in section 509(a)(2) of applicable to the highly erodible Field Office Technical Guide (FOTG) that Code; or is described in section cropland and describes the decisions of is the official document for NRCS 509(a)(3) of that Code; and is controlled the person with respect to location, land guidelines, criteria, and standards for by an organization described in section use, tillage systems, and conservation planning and applying conservation 509(a)(2) of that Code. treatment measures and schedules; Other productive soils are soils that treatments and conservation (3) Is approved by the local soil are contained on farm or ranch land and management systems. The FOTG conservation district in consultation that are identified as farmland of contains detailed information on the with the local committees established Statewide or local importance and is conservation of soil, water, air, plant, under Section 8(b)(5) of the Soil used for the production of food, feed, and animal resources applicable to the Conservation and Domestic Allotment fiber, forage, or oilseed crops. The local area for which it is prepared. Act (16 U.S.C. 590h(b)(5)) and the appropriate State or local government Historical and archaeological Secretary, or by the Secretary. agency determines Statewide or locally resources must be: Eligible entities means Federally important farmland with concurrence recognized Indian Tribes, States, units (1) Listed in the National Register of from the State Conservationist. of local government, and certain non- Historic Places (established under the Generally, these farmlands produce high governmental organizations, which have National Historic Preservation Act yields of crops when treated and a farmland protection program that (NHPA), 16 U.S.C. 470, et seq.), or managed according to acceptable purchases agricultural conservation (2) Formally determined eligible for farming methods. In some States and easements for the purpose of protecting listing in the National Register of localities, farmlands of Statewide and topsoil by limiting conversion to non- Historic Places (by the State Historic local importance may include tracts of agricultural uses of the land. Preservation Officer (SHPO) or Tribal land that have been designated for Additionally, to be eligible for FRPP, the Historic Preservation Officer (THPO) agriculture by State law or local entity must have pending offers, for and the Keeper of the National Register ordinance. 7 CFR part 657, sets forth the acquiring conservation easements for in accordance with section 106 of the process for designating soils as the purpose of protecting agricultural NHPA), or Statewide or locally important. land from conversion to non- (3) Formally listed in the State or Pending offer is a written bid, agricultural uses. Tribal Register of Historic Places of the contract, or option extended to a Eligible land is privately owned land SHPO (designated under section 101 landowner by an eligible entity to on a farm or ranch that has prime, (b)(1)(B) of the NHPA) or the THPO acquire a conservation easement before unique, Statewide, or locally important (designated under section 101(d)(1)(C) the legal title to these rights has been soil, or contains historical or of the NHPA). conveyed for the purpose of limiting archaeological resources, and is subject Impervious Surface—Impervious non-agricultural uses of the land. to a pending offer by an eligible entity. surface is the area on the easement Prime and unique farmland are Eligible land includes cropland, parcel covered by non-seasonal, defined separately, as follows: rangeland, grassland, and pasture land, permanent roof tops, concrete and (1) Prime farmland is land that has the as well as forest land that is an asphalt. best combination of physical and incidental part of an agricultural Land Evaluation and Site Assessment chemical characteristics for producing operation. Other incidental land that System (LESA) is the land evaluation food, feed, fiber, forage, oilseed, and would not otherwise be eligible, but system approved by the NRCS State other agricultural crops with minimum when considered as part of a pending Conservationist used to rank land for inputs of fuel, fertilizer, pesticides, and offer, may be considered eligible, if farm and ranch land protection labor, without intolerable soil erosion, inclusion of such land would purposes, based on soil potential for as determined by the Secretary. significantly augment protection of the agriculture, as well as social and (2) Unique farmland is land other associated farm or ranch land. economic factors, such as location, than prime farmland that is used for the Fair market value is ascertained access to markets, and adjacent land production of specific high-value food through standard real property appraisal use. (For additional information see the and fiber crops, as determined by the methods. Fair market value is the Farmland Protection Policy Act rule at Secretary. It has the special combination amount in cash, for which in all 7 CFR part 658.) of soil quality, location, growing season, probability the property would have Landowner means a person, persons, and moisture supply needed to sold on the effective date of the estate, corporation, or other business or economically produce sustained high appraisal, after a reasonable exposure of nonprofit entity having fee title quality or high yields of specific crops time on the open competitive market, ownership of farm or ranch land. when treated and managed according to from a willing and reasonably Natural Resources Conservation acceptable farming methods. Examples knowledgeable seller to a willing and Service is an agency of the U.S. of such crops include citrus, tree nuts, reasonably knowledgeable buyer. Department of Agriculture. olives, cranberries, fruits, and

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vegetables. Additional information on a State FRPP Plan to the NRCS National The National Office will allocate the definition of prime, unique, or other Office. Prior to submitting an funds to States based on the information productive soil can be found in 7 CFR application, interested entities should provided in the State FRPP Plan. Within part 657 and 7 CFR part 658. contact the appropriate State 30 days after the Request for Proposal State Technical Committee means a Conservationist, and ensure a State deadline has closed, the NRCS State committee established by the Secretary FRPP Plan has been submitted. At a Conservationist may make awards to of the U.S. Department of Agriculture in minimum, the State FRPP Plan contains eligible entities based on the funds a State pursuant to 16 U.S.C. 3861 and the following: provided. Once selected, eligible 7 CFR part 610, subpart C. • Acreage of prime and important entities must work with the appropriate State Conservationist means the farm and ranch land estimated to be NRCS State Conservationist to finalize NRCS employee authorized to direct protected; and sign cooperative agreements, and supervise NRCS activities in a State, • Acreage of prime and important incorporating all FRPP requirements. the Caribbean Area (Puerto Rico and the farm and ranch land converted to Virgin Islands), or the Pacific Basin Area nonagricultural uses; The conveyance document (i.e., (Guam, American Samoa, and the • Number or acreage of historic and conservation easement deed or Commonwealth of the Northern archaeological sites estimated to be conservation easement deed template) Marianna Islands). protected on farm or ranch lands; used by the eligible entity must be reviewed and approved by the USDA Overview of the Farm and Ranch Lands • Total acres needing protection; Office of General Counsel before being Protection Program • FRPP cost per acre; • Rate of land conversion; recorded. Since title to the easement is The CCC, acting through NRCS, will • held by an entity other than the United accept proposals submitted to the NRCS Percentage of funding guaranteed to be provided by cooperating entities; States, the conveyance document must State Offices from eligible entities, • contain a clause that all rights conveyed including Federally recognized Indian History of cooperating entities’ commitments to conservation planning by the landowner under the document tribes, States, units of local government, will become vested in the United States and nongovernmental organizations that and implementing conservation practices; should the Federally recognized Indian have pending offers for acquiring • tribe, State, local unit of government, or conservation easements for the purposes Participating entities’ histories of acquiring, managing, holding, and nongovernmental organization (i.e., the of protecting topsoil by limiting participant(s)) abandons, fails to nonagricultural use of the land and/or enforcing easements (including average annual farmland protection enforce, or attempts to terminate the protecting historical and archaeological conservation easement. sites on farm and ranch lands. Reference expenditures over the past five years, accomplishments, and staff); As a condition of participation, all information regarding the FRPP can be • found in the ‘‘Catalog of Federal Amount of FRPP funding requested; highly erodible land in the easement and shall be included in a conservation Domestic Assistance 10.913.’’ • All proposals must be submitted to Participating entities’ estimated plan. The conservation plan will be the appropriate NRCS State unfunded backlog of conservation developed using the standards and Conservationist within 45 days from the easements on acres eligible for FRPP specifications of the NRCS Field Office date of this notice. The NRCS State assistance. Technical Guide and 7 CFR part 12, Conservationist may consult with the At the State level, each State unless otherwise determined by the State Technical Committee to evaluate Conservationist will develop a State State Conservationist, in partnership the merits of the proposals. FRPP Plan to submit to NRCS National with the eligible entity. The The NRCS State Conservationist will Office. This State FRPP Plan may be conservation plan will be implemented review and evaluate the proposals based completed in consultation with the in a timely manner, as determined by on State, Tribal or local government or State Technical Committee, and it will the State Conservationist, following nongovernmental organization include ranking considerations used by FRPP enrollment. eligibility, land eligibility, and the the State, including the above- extent to which the proposal adheres to mentioned criteria and other NRCS Organization and Land Eligibility the objectives outlined in the NRCS State ranking criteria. The following Selection Criteria examples of NRCS State ranking criteria State FRPP plan. Proposals must To be eligible, a Federally recognized provide adequate proof of a pending may be used to evaluate and rank Indian tribe, State, unit of local offer for the subject land. Adequate specific parcels, including but not government, or nongovernmental proof includes a copy of a written bid, limited to proximity to protected organization must have a farmland contract, commitment, or option clusters, viability of the agricultural protection program that purchases extended to a landowner. Pending offers operations, parcel size, type of land use, conservation easements for the purpose based upon appraisals completed and maximum cost expended per acre, an signed by State-certified or licensed entity’s commitment to assuring farm of protecting prime, unique, or other appraisers will receive higher priority and ranch succession and transfer to productive soil or historical and for FRPP funding. Proposals submitted viable farming operations, and archaeological resources by limiting directly to the NRCS National Office percentage of funding guaranteed to be conversion of farm or ranch land to will not be accepted, and will be provided by cooperating entities. State nonagricultural uses. FRPP funds may returned to the submitting entity. ranking criteria will be developed on a not be used to place an easement on a State-by-State basis and will be property in which an employee, board Development of the State Farm and available to interested participating member, or immediate family member Ranch Lands Protection Program Plan entities before proposal submission. of an employee or board member of the Funding awards to participants will Interested entities should contact their FRPP applicant and any other be based on National and State criteria. State Conservationist for a complete organizations partnering with the FRPP will be available in those States listing of applicable National and State applicant in the acquisition of the for which an NRCS State Office submits ranking criteria. easement has a property interest.

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Criteria for Proposal Evaluation (a) A map showing the proposed the farm or ranch land is eligible for Proposals must contain the protected area(s); financial assistance from FRPP. NRCS information set forth below in order to (b) The amount and source of funds will use the National, as well as State receive consideration for assistance: currently available for each easement to criteria, which may include a LESA 1. Organization and programs: Eligible be acquired; system or other comprehensive system, entities must describe their farmland (c) The criteria used to set the to evaluate the land and rank the protection program and their record of acquisition priorities; and parcels. (d) A detailed description of the land NRCS will only consider enrolling acquiring and holding permanent parcels, including: eligible land in the program that is of agricultural land protection easements (i) The priority of the offers; sufficient size and has boundaries that or other interests. (ii) The names of the landowners; allow for efficient management of the Information provided in the proposal (iii) The address and location maps of area. The land must have access to should: the parcels; markets for its products and an (a) Demonstrate a commitment to (iv) The size of the parcels, in acres; infrastructure appropriate for long-term conservation of agricultural (v) The acres of the prime, unique, or agricultural production. NRCS will not lands through the use of voluntary State-wide and locally important soil in enroll land in FRPP that is owned in fee easements that protect farmland from the parcels; title by an agency of the United States, conversion to nonagricultural uses; (vi) The acreage of permanent, non- is publicly-owned land, or land that is (b) Demonstrate the capability to seasonal impervious surface; already subject to an easement or deed acquire, manage, and enforce easements; (vii) The number or acreage of restriction that limits agricultural (c) Demonstrate the number and historical or archaeological sites, if any, viability. ability of staff that will be dedicated to proposed to be protected, and a brief NRCS will not enroll otherwise monitoring easement stewardship; description of the sites’ significance; eligible lands if NRCS determines that (d) Demonstrate the availability of (viii) A map showing the location of the protection provided by the FRPP funds. The purchase price may not other protected parcels in relation to the would not be effective because of onsite exceed the appraised fair market value land parcels proposed to be protected; or offsite conditions. For example, as it of the conservation easement. If a (ix) Estimated cost of the easement(s): relates to on-site conditions, a proposal landowner donation is included in the The consideration to be paid to any may nominate a parcel that contains entity’s match, the entity must landowners for the conveyance of any hazardous material, or it may nominate demonstrate in cash, the availability of lands or interests in lands cannot be a parcel that contains or may allow over 25 percent of the appraised fair market more than the fair market value of the two percent impervious surface value or 50 percent of the purchase land or interests conveyed, as coverage on the land under easement. price; and determined by an appraiser licensed in The presence of hazardous waste or the (e) Include pending offer(s). A the State; extensive impervious surface coverage pending offer is a written bid, contract, (x) An example of the cooperating will likely cause NRCS to determine commitment, or option extended to a entity’s proposed easement deed used to that the use of FRPP funds is not landowner by an eligible entity to prevent agricultural land conversion; appropriate. As it relates to offsite acquire a conservation easement that (xi) Indication of the accessibility to conditions, NRCS may avoid acquiring limits nonagricultural uses of the land markets; land that is surrounded by a developed before the legal title to these rights has (xii) Indication of an existing area or slated to be zoned for been conveyed. The primary purpose of agricultural infrastructure, on- and off- development by a local government. the pending offers must be for farm, and other support system(s); NRCS will place a priority on protecting topsoil by limiting (xiii) Statement regarding the level of acquiring easements that provide conversion to nonagricultural uses. threat from urban development; permanent protection from conversion Pending offers having appraisals (xiv) A description of the eligible to nonagricultural use. NRCS will place completed and signed by State-certified entity’s farmland protection strategy and a higher priority on easements acquired general appraisers will receive higher how the FRPP proposal submitted by by entities that have extensive funding priority by the NRCS State the entity corresponds to the entity’s experience in managing and enforcing Conservationist. Appraisals completed strategic plan; easements. NRCS may place a higher and signed by a State-certified or (xv) Other factors from an evaluation priority on lands and locations that help licensed general appraiser must contain and assessment system used by the create a large tract of protected area for a disclosure statement by the appraiser. applicant for selecting parcels. For viable agricultural production and that The disclosure statement should example, the eligible entity may use the are under increasing urban development include at a minimum the following: the LESA system or a similar land pressure. NRCS may place a higher appraiser accepts full responsibility for evaluation system as its tool and priority on lands and locations that the appraisal, the enclosed statements include the scores for the land parcels correlate with the efforts of Federal, are true and unbiased, the value of the slated for acquisition; State, Tribal, local, or nongovernmental land is limited by stated assumptions (xvi) Other partners involved in organizations’ efforts that have only, the appraiser has no interest in the acquisition of the easement and their complementary farmland protection land, and the appraisal conforms to the estimated financial contribution; and objectives (e.g., open space or watershed Uniform Standards of Professional (xvii) Other information that may be and wildlife habitat protection). NRCS Appraisal Practice or the Uniform relevant as determined by the NRCS may place a higher priority on lands Appraisal Standards for Federal Land State Conservationist. that provide special social, economic, Acquisitions. and environmental benefits to the 2. Lands to be acquired: The proposal Ranking Considerations region. A higher priority may be given must describe the lands to be acquired When the NRCS State Office has to certain geographic regions where the with assistance from FRPP. Specifically, assessed organization eligibility and the enrollment of particular lands may help the proposal must include the merits of each proposal, the NRCS State achieve National, State, and regional following: Conservationist will determine whether goals and objectives, or enhance existing

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government or private conservation 2810; fax: (720) 544–2965; Maine: Joyce Swartzendruber, Suite 3, projects. [email protected]. 967 Illinois Avenue, Bangor, ME Connecticut: Margo L. Wallace, 344 04401; phone: (207) 990–9100, ext. 3; Cooperative Agreements Merrow Road, Tolland, Connecticut fax: (207) 990–9599; The CCC, through NRCS, enters into 06084; phone: (860) 871–4011; fax: [email protected]. a cooperative agreement with a selected (860) 871–4054; Maryland: David P. Doss, John Hanson eligible entity to document participation [email protected]. Business Center, Suite 301, 339 in FRPP. The cooperative agreement Delaware: Ginger Murphy, Suite 101, Busch’s Frontage Road, Annapolis, will address, among other subjects— 1203 College Park Drive, Suite 101, MD 21401–5534; phone: (410) 757- (1) The easement type, terms, and Dover, DE 19904–8713; phone: (302) 0861; fax: (410) 757–0687; conditions; 678–4160; fax: (302) 678-0843; [email protected]. (2) The management and enforcement [email protected]. Massachusetts: Cecil B. Currin, 451 of the rights acquired; Florida: T. Niles Glasgow, 2614 NW. West Street, Amherst, MA 01002– (3) The role and responsibilities of 43rd Street, Gainesville, FL 32606– 2995; phone: (413) 253–4351; fax: NRCS and the cooperating entity; 6611, or Post Office Box 141510, (413) 253–4375; (4) The responsibilities of the Gainesville, FL 32606–6611; phone: [email protected]. easement manager on lands acquired (352) 338–9500; fax: (352) 338–9574; Michigan: Ronald C. Williams, Suite with FRPP assistance; and [email protected]. 250, 3001 Coolidge Road, East (5) Other requirements deemed Lansing, MI 48823–6350; phone: (517) necessary by the CCC, acting through Georgia: Leonard Jordan, Federal Building, Stop 200, 355 East Hancock 324–5270; fax: (517) 324–5171; NRCS, to protect the interests of the [email protected]. United States. The cooperative Avenue, Athens, GA 30601–2769; phone: (706) 546–2272; fax: (706) Minnesota: William Hunt, Suite 600, agreement will also include an 375 Jackson Street, St. Paul, MN attachment listing the pending offers 546–2120; [email protected]. 55101–1854; phone: (651) 602–7900; accepted in FRPP, landowners’ names, fax: (651) 602–7913 or 7914; addresses, location map(s), and other Guam: Joan B. Perry, Director, Pacific Basin Area, Suite 301, FHB Building, [email protected]. relevant information. Interested entities Mississippi: Homer L. Wilkes, Suite Suite 301 400 Route 8, Mongmong, should contact their State 1321, Federal Building, 100 West GU 96910; phone: (671) 472–7490; Conservationist for a copy of a draft Capitol Street, Jackson, MS 39269– fax: (671) 472–7288; cooperative agreement before submitting 1399; phone: (601) 965–5205; fax: [email protected]. an application. (601) 965–4940; Hawaii: Lawrence Yamamoto, Acting, [email protected]. Signed in Washington, DC, on March 11, Room 4–118, 300 Ala Moana Missouri: Roger A. Hansen, Parkade 2004. Boulevard, Post Office Box 50004, Center, Suite 250, 601 Business Loop Bruce I. Knight, Honolulu, HI 96850–0002; phone: 70, West Columbia, MO 65203–2546; Vice President, Commodity Credit (808) 541–2600; fax: (808) 541–1335; phone: (573) 876–0901; fax: (573) Corporation, and Chief, Natural Resources [email protected]. Conservation Service. 876–0913; Idaho: Richard W. Sims, Suite C, 9173 [email protected]. NRCS State Conservationists West Barnes Drive, Boise, ID 83709; Montana: David White, Federal Alabama: Robert N. Jones, 3381 Skyway phone: (208) 378–5700; fax: (208) Building, Room 443, 10 East Babcock Drive, Post Office Box 311, Auburn, 378–5735; [email protected]. Street, Bozeman, MT 59715–4704; AL 36830; phone: (334) 887–4500; Illinois: William J. Gradle, 2118 W. Park phone: (406) 587–6811; fax: (406) fax: (334) 887–4552; Court, Champaign, IL 61821; phone: 587–6761, [email protected]. [email protected]. (217) 353–6600; fax: (217) 353–6676; Nebraska: Stephen K. Chick, Federal Alaska: Shirley Gammon, Atrium [email protected]. Building, Room 152, 100 Centennial Building, Suite 100, 800 West Indiana: Jane E. Hardisty, 6013 Lakeside Mall, North Lincoln, NE 68508–3866 Evergreen, Atrium Building, Suite Boulevard, Indianapolis, IN 46278– phone: (402) 437–5300; fax: (402) 100, Palmer, AK 99645–6539; phone: 2933; phone: (317) 290–3200; fax: 437–5327; [email protected]. (907) 761–7760; fax: (907) 761–7790; (317) 290–3225; Nevada: Livia Marques, Building F, [email protected]. [email protected]. Suite 201, 5301 Longley Lane, Reno, Arizona: Michael Somerville, Suite 800, Iowa: Leroy Brown, 693 Federal NV 89511–1805; phone: (775) 784– 3003 North Central Avenue, Phoenix, Building, Suite 693, 210 Walnut 5863; fax: (775) 784–5939; AZ 85012–2945; phone: (602) 280– Street, Des Moines, IA 50309–2180; [email protected]. 8808; fax: (602) 280–8809 or 8805; phone: (515) 284–6655; fax: (515) New Hampshire: Richard D. Babcock, [email protected]. 284–4394; [email protected]. Federal Building, 2 Madbury Road, Arkansas: Kalven L. Trice, Federal Kansas: Harold Klaege, 760 South Durham, NH 03824–2043; phone: Building, Room 3416, 700 West Broadway, Salina, KS 67401–4642; (603) 868–7581; fax: (603) 868-5301; Capitol Avenue, Little Rock, AR phone: (785) 823–4565; fax: (785) [email protected]. 72201–3228; phone: (501) 301–3100; 823–4540; [email protected]. New Jersey: Anthony J. Kramer, 220 fax: (501) 301–3194; Kentucky: David G. Sawyer, Suite 110, Davidson Avenue, 4th Floor, [email protected]. 771 Corporate Drive, Lexington, KY Somerset, NJ 08873–3157; phone: California: Charles W. Bell, Suite 4164, 40503–5479; phone: (859) 224–7350; (732) 537–6040; fax: (732) 537–6095; 430 G Street, Davis, California 95616– fax: (859) 224–7399; [email protected]. 4164; phone: (530) 792–5600; fax: [email protected]. New Mexico: Rosendo Trevino III, Suite (530) 792–5790; Louisiana: Donald W. Gohmert, 3737 305, 6200 Jefferson Street, NE., [email protected]. Government Street, Alexandria, LA Albuquerque, NM 87109–3734; Colorado: James Allen Green, Room 71302; phone: (318) 473–7751; fax: phone: (505) 761–4400; fax: (505) E200C, 655 Parfet Street, Lakewood, (318) 473–7626; 761–4462; CO 80215–5521; phone: (720) 544– [email protected]. [email protected].

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New York: Joseph R. DelVecchio, Suite 742–9800; fax: (254) 742–9819; livestock graving activities on the 354, 441 South Salina Street, [email protected]. Sacramento Grazing Allotment by Syracuse, NY 13202–2450; phone: Utah: Harry Slawter, Acting, W.F. January 2004. The project area (315) 477–6504; fax: (315) 477–6550; Bennett Federal Building, Room 4402, encompasses approximately 115,000 [email protected]. 125 South State Street, Salt Lake City, acres of National Forest lands on the North Carolina: Mary K. Combs, Suite UT 84138, Post Office Box 11350, Salt Sacramento Ranger District of the 205, 4405 Bland Road, Raleigh, NC Lake City, UT 84147–0350, phone: Lincoln National Forest. The 27609–6293; phone: (919) 873–2101; (801) 524–4550, fax: (801) 524–4403; Sacramento Grazing allotment fax: (919) 873–2156; [email protected]. comprises approximately 25% of the [email protected]. Vermont: Francis M. Keeler,356 ranger district. The project has North Dakota: Serapio Flores, Jr., Room Mountain View Drive, Suite 105, generated controversy on three main 278, 220 E. Rosser Avenue, Post Colchester, VT 05446; phone: (802) points; effects to threatened and Office Box 1458, Bismarck, ND 951–6795; fax: (802) 951–6327; endangered animal and plan specifies, 58502–1458; phone: (701) 530–2000; [email protected]. concern for degraded riparian areas, and fax: (701) 530–2110; Virginia: M. Denise Doetzer, Culpeper forage competition between wildlife and [email protected]. Building, Suite 209, 1606 Santa Rosa livestock. This notice is to advise Ohio: J. Kevin Brown, Room 522, 200 Road, Richmond, VA 23229–5014; interested parties that a final North High Street, Columbus, OH phone: (804) 287–1691; fax: (804) environmental impact statement (FEIS) 43215–2478; phone: (614) 255–2500; 287–1737; will be available for public review in fax: (614) 255–2548; [email protected]. March 2004. [email protected]. Washington: Raymond L. ‘‘Gus’’ Responsible Official: The District Oklahoma: M. Darrel Dominick, USDA Hughbanks, Rock Pointe Tower II, Ranger will decide whether or not to Agri-Center Building, Suite 206, 100 Suite 450, W. 316 Boone Avenue, authorize domestic livestock grazing on USDA, Stillwater, Oklahoma 74074– Spokane, WA 99201–2348; phone: the Sacramento Allotment which will 2655; phone: (405) 742–1204; fax: (509) 323–2900; fax: (509) 323–2909; include appropriate forest plan (405) 742–1126; [email protected]. standards and guidelines in part 3 of the [email protected]. West Virginia: Lillian V. Woods, Room existing grazing permit. If grazing is Oregon: Robert Graham, Suite 1300, 101 301, 75 High Street, Morgantown, WV authorized, the District Ranger will SW. Main Street, Portland, OR 97204– 26505; phone: (304) 284–7540; fax: decide on the permitted number of 3221; phone: (503) 414–3200; fax: (304) 284–4839; animals and season of use, range (503) 414–3103; [email protected]. facilities to be constructed, allowable [email protected]. Wisconsin: Patricia S. Leavenworth, utilization standards, required Pennsylvania: Robin E. Heard, Suite 8030 Excelsior Drive, Suite 200, monitoring, and mitigation measures 340, 1 Credit Union Place, Harrisburg, Madison, WI 53717; phone: (608) (best management practices, BMPs). PA 17110–2993; phone: (717) 237– 662–4422; fax: (608) 662–4430; FOR FURTHER INFORMATION CONTACT: 2202; fax: (717) 237–2238; [email protected]. Questions about the proposed project [email protected]. Wyoming: Lincoln E. Burton, Federal and scope of analysis should be directed Puerto Rico: Juan A. Martinez, Director, Building, Room 3124, 100 East B to Rick Newmon or Mark Cadwallader Caribbean Area, IBM Building, Suite Street, Casper, WY 82601–1911; at (505) 682–2551. 604, 654 Munoz Rivera Avenue, Hato phone: (307) 261–6453; fax: (307) 261- Dated: February 25, 2004. 6490; [email protected]. Rey, PR 00918–4123; phone: (787) Jose M. Martinez, 766–5206; fax: (787) 766–5987; [FR Doc. 04–6109 Filed 3–16–04; 8:45 am] Forest Supervisor, Lincoln National Forest. [email protected]. BILLING CODE 3410–16–P [FR Doc. 04–5974 Filed 3–16–04; 8:45 am] Rhode Island: Judith Doerner, Suite 46, BILLING CODE 3410–11–M 60 Quaker Lane, Warwick, RI 02886– 0111; phone: (401) 828–1300; fax: DEPARTMENT OF AGRICULTURE (401) 828–0433; DEPARTMENT OF AGRICULTURE [email protected]. Forest Service South Carolina: Walter W. Douglas, Rural Housing Service Southwest Region; Authorization of Strom Thurmond Federal Building, Livestock Graving Activities on the Room 950, 1835 Assembly Street, Notice of Funds Availability (NOFA) for Sacramento Grazing Allotment, Columbia, SC 29201–2489; phone: Section 514 Farm Labor Housing Sacramento Ranger District, Lincoln (803) 253–3935; fax: (803) 253–3670; Loans and Section 516 Farm Labor National Forest, Otero County, New [email protected]. Housing Grants for Off-Farm Housing Mexico South Dakota: Janet L. Oertly, Federal for Fiscal Year 2004 Building, Room 203, 200 Fourth AGENCY: Forest Service, USDA. AGENCY: Rural Housing Service (RHS), Street, SW., Huron, SD 57350–2475; ACTION: Revised notice of intent to USDA. phone: (605) 352–1200; fax: (605) prepare a final environmental impact ACTION: Notice. 352–1288; statement for the authorization of [email protected]. livestock graving on the Sacramento SUMMARY: This NOFA announces the Tennessee: James W. Ford, 675 U.S. Grazing Allotment. availability of funds for section 514 Courthouse, 801 Broadway, Nashville, Farm Labor Housing loan funds and TN 37203–3878; phone: (615) 277– SUMMARY: In a previous Federal Register section 516 Farm Labor Housing grant 2531; fax: (615) 277–2578; announcement (December 8, 2003, Vol funds for new construction and [email protected]. 68, No. 235, page 68325) the Forest acquisition and rehabilitation of off- Texas: Lawrence Butler, W.R. Poage service provided notice it would farm units for farmworker households. Building, 10l South Main Street, prepare a final environmental impact Applications may also include requests Temple, TX 76501–7602; phone: (254) statement on a proposal to authorize for section 521 rental assistance (RA). A

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‘‘Notice of Timeframe for Section 514 partnerships in which the general the application and selection process, as Farm Labor Housing Loan and Section partner is a nonprofit entity. well as a listing of the Rural 516 Farm Labor Housing Grant for Development State Offices, can be found B. Distribution Methodology Fiscal Year 2004’’ was published in the in the February 6, 2004, notice. Federal Register on February 6, 2004 Because RHS has the ability to adjust FOR FURTHER INFORMATION CONTACT: For (69 FR 5818). This was done soon after loan and grant levels, final loan and general information, applicants may passage of a final appropriations act to grant levels will fluctuate. The contact Barbara Chism, Senior Loan allow sufficient time for applicants to estimated funds available for fiscal year Officer, Multi-Family Housing complete an application and for the (FY) 2004 for off-farm housing are: Processing Division, Rural Housing Agency to select and process selected Section 514 loans—$35,774,000 Service, United States Department of applications within the current fiscal Section 516 grants—$13,400,759 Agriculture, Stop 0781, 1400 year. In the notice dated February 6, Applications will be selected based Independence Avenue, SW., 2004, the Agency announced a deadline on a national competition, as outlined Washington, DC 20250, telephone (202) of May 6, 2004, 5 p.m., local time for in the February 6, 2004, notice. 690–1436 (voice) (this is not a toll free each Rural Development State Office, number) or (800) 877–8339 (TDD- for submitting applications for sections II. Funding Limits Federal Information Relay Service). 514/516 Farm Labor Housing Loans and A. Individual requests may not exceed SUPPLEMENTARY INFORMATION: Grants and section 521 RA funds. $3 million (total loan and grant). Detailed information regarding the B. No State may receive more than 30 Programs Affected application and selection process, as percent of the total available funds The Rural Rental Housing program is well as a listing of the Rural unless an exception is granted from the listed in the Catalog of Federal Domestic Development State Offices, can be found Administrator. Assistance under Number 10.415, Rural in the February 6, 2004, notice. C. Rental Assistance will be held in Rental Housing Loans. Rental FOR FURTHER INFORMATION CONTACT: For the National Office for use with section Assistance is listed in the Catalog under general information, applicants may 514 loans and section 516 grants and Number 10.427, Rural Rental Assistance contact Doug MacDowell, Senior Loan will be awarded based on each project’s Payments. financial structure and need. Specialist, of the Multi-Family Housing Discussion of Notice Processing Division, Rural Housing Dated: March 9, 2004. Service, United States Department of Arthur A. Garcia, Authority and Distribution Methodology Agriculture, Stop 0781, 1400 Administrator, Rural Housing Service. A. Authority Independence Avenue, SW., [FR Doc. 04–5963 Filed 3–16–04; 8:45 am] Section 515 of the Housing Act of Washington, DC 20250, telephone (202) BILLING CODE 3410–XV–P 720–1627 (voice) (this is not a toll free 1949 (42 U.S.C. 1485) provides RHS number) or (800) 877–8339 (TDD- with the authority to make loans to any individual, corporation, association, Federal Information Relay Service). DEPARTMENT OF AGRICULTURE trust, Indian tribe, public or private SUPPLEMENTARY INFORMATION: Rural Housing Service nonprofit organization, consumer Programs Affected cooperative, or partnership to provide Notice of Funding Availability (NOFA) rental or cooperative housing and The Farm Labor Housing Program is for the Section 515 Rural Rental related facilities in rural areas for very- listed in the Catalog of Federal Domestic Housing Program for Fiscal Year 2004 low, low, or moderate income persons Assistance under Number 10.405, Farm or families, including elderly persons Labor Housing Loans and Grants. Rental AGENCY: Rural Housing Service (RHS), and persons with disabilities. Rental Assistance is listed in the Catalog under USDA. Assistance (RA) is a tenant subsidy for Number 10.427, Rural Rental Assistance ACTION: Notice. very-low and low-income families Payments. SUMMARY: This NOFA announces the residing in rural rental housing facilities Discussion of Notice availability of new construction loan with RHS financing and may be funds for the section 515 Rural Rental requested with applications for such I. Authority and Distribution facilities. Methodology Housing (RRH) program for Fiscal Year (FY) 2004. A ‘‘Notice of Timeframe to B. Distribution Methodology A. Authority Submit Applications for the Section 515 The total amount available for FY The Farm Labor Housing program is Rural Rental Housing Program for Fiscal 2004 for section 515 is $115,857,375, of authorized by the Housing Act of 1949: Year 2004’’ was published in the which $30,057,375 is available for new section 514 (42 U.S.C. 1484) for loans Federal Register on February 6, 2004 construction as follows: and section 516 (42 U.S.C. 1486) for (69 FR 5821). This was done soon after grants. Tenant subsidies (rental passage of a final appropriations act to Section 515 new construction funds— assistance (RA)) are available through allow sufficient time for applicants to $7,837,343 Set-aside for nonprofits—$10,427,163 section 521 (42 U.S.C. 1490a). Sections complete an application and for the Set-aside for Underserved Counties and 514 and 516 provide RHS the authority Agency to select and process selected Colonias—$5,792,869 to make loans and grants for financing applications within the current fiscal Set-aside for EZ, EC, and REAP Zones— off-farm housing to broad-based year. In the notice dated February 6, $5,000,000 nonprofit organizations, nonprofit 2004, the Agency announced a deadline State Rental Assistance (RA) Designated organizations of farmworkers, federally of April 6, 2004, 5 p.m. local time for reserve—$ 1,000,000 recognized Indian tribes, agencies or each Rural Development State Office, political subdivisions of State or local for submitting applications for section C. Set-asides and State RA Reserve government, public agencies (such as 515 new construction loan funds and 1. Nonprofit set-aside. An amount of local housing authorities) and with section 521 Rental Assistance (RA) $10,427,163 has been set aside for section 514 loans to nonprofit limited funds. Detailed information regarding nonprofit applicants. Details on this set-

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aside are provided in the notice 533 Housing Preservation Grant part 1940, subpart L, ‘‘Methodology and published on February 6, 2004 (69 FR Program. Formulas for Allocation of Loan and 5821). FOR FURTHER INFORMATION CONTACT: For Grant Program Funds.’’ Decisions on 2. Underserved counties and colonias general information, applicants may funding will be based on set-aside. An amount of $5,792,868 has contact Tammy Daniels, Loan preapplications. been set aside for loan requests to Specialist, Multi-Family Housing Dated: March 9, 2004. develop units in the 100 most needy Processing Division, Rural Housing Arthur A. Garcia, underserved counties or colonias as Service, United States Department of Administrator, Rural Housing Service. defined in section 509(f) of the Housing Agriculture, Stop 0781, 1400 [FR Doc. 04–5961 Filed 3–16–04; 8:45 am] Act of 1949. Independence Avenue, SW, BILLING CODE 3410–XV–P 3. EZ, EC, and REAP set-aside. An Washington, DC, 20250, telephone (202) amount of $5,000,000 has been set aside 720–0021 (voice) (This is not a toll free to develop units in EZ, EC, or REAP number.) or (800) 877–8339 (TDD- DEPARTMENT OF AGRICULTURE communities. If requests for this set- Federal Information Relay Service). aside exceed available funds, selection SUPPLEMENTARY INFORMATION: Rural Housing Service will be made by point score. 4. State RA Reserve. $1,000,000 is Programs Affected Notice of Funding Availability (NOFA) available nationwide in a reserve for This program is listed in the Catalog for the Section 538 Guaranteed Rural States with viable State Rental of Federal Domestic Assistance under Rental Housing Program (GRRHP) for Assistance (RA) programs. In order to Number 10.433, Rural Housing Fiscal Year (FY) 2004 participate, States are to submit specific Preservation Grants. This program is AGENCY: Rural Housing Service (RHS), written information about the State RA subject to the provisions of Executive USDA. program, i.e., a memorandum of Order 12372 which requires ACTION: Notice. understanding, documentation from the intergovernmental consultation with provider, etc., to the National Office. State and local officials (7 CFR part SUMMARY: This NOFA announces the Dated: March 9, 2004. 3015, subpart V). Applicants are availability of funds for the section 538 Arthur A. Garcia, referred to 7 CFR 1944.674 and Guaranteed Rural Rental Housing Administrator, Rural Housing Service. 1944.676(f), (g), and (h) for specific Program for FY 2004. Congress guidance on these requirements relative [FR Doc. 04–5962 Filed 3–16–04; 8:45 am] appropriated $99.410 million to the to the HPG program. BILLING CODE 3410–XV–P section 538 GRRHP for FY 2004. All Discussion of Notice applicants that submitted responses to the section 538 GRRHP notice published DEPARTMENT OF AGRICULTURE Authority and Distribution Methodology in the Federal Register on February 6, A. Authority 2004 (69 FR 5826) will be considered for Rural Housing Service FY 2004 funding. The commitment of The HPG program is a grant program program dollars will be made to Notice of Funds Availability (NOFA) for which provides qualified public applicants of selected responses that Section 533 Housing Preservation agencies, private nonprofit have fulfilled the necessary Grants for Fiscal Year 2004 organizations, and other eligible entities requirements for obligation as described grant funds to assist very low- and low- in the February 6, 2004, Federal AGENCY: Rural Housing Service (RHS), income homeowners to repair and Register Notice. The Agency will USDA. rehabilitate their homes in rural areas, continue to review applications ACTION: Notice. and to assist rental property owners and submitted hereafter from eligible cooperative housing complexes to repair applicants until all funds are expended. SUMMARY: This NOFA announces the and rehabilitate their units if they agree The Agency will issue a notice to availability of funds for section 533 to make such units available to low- and inform the public when funds have been Housing Preservation Grant (HPG) very low-income persons. exhausted for FY 2004. Program. A ‘‘Notice of Timeframe for Section 533 Housing Preservation B. Distribution Methodology Dated: March 9, 2004. Grants for Fiscal Year 2004’’ was The funding instrument for the HPG Arthur A. Garcia, published in the Federal Register on program will be a grant agreement. The Administrator, Rural Housing Service. February 6, 2004 (69 FR 5824). This was term of the grant can vary from 1 to 2 [FR Doc. 04–5960 Filed 3–16–04; 8:45 am] done shortly after passage of a final years, depending on available funds and BILLING CODE 3410–XV–P appropriations act to allow sufficient demand. No maximum or minimum time for applicants to complete an grant levels have been established at the application and for the Agency to select National level. You should contact the DEPARTMENT OF AGRICULTURE and process selected applications State office to determine the allocation within the current fiscal year. Detailed and the State maximum grant level, if Rural Utilities Service information regarding the application any. For FY 2004, $8,882,000 is Information Collection Activity; and selection process, as well as a available for the Housing Preservation Comment Request listing of the Rural Development State Grant Program. A set aside of $894,690 Offices, can be found in the February 6, has been established for grants located AGENCY: Rural Utilities Service, USDA. 2004, Notice. Also, in the Notice dated in Empowerment Zones, Enterprise ACTION: Notice and request for February 6, 2004, the Agency Communities, and REAP Zones, comments. announced a deadline of May 6, 2004, $882,200 has been set aside for the 5 p.m., local time for each Rural Administrator’s reserve and $7,099,110 SUMMARY: In accordance with the Development State Office, for has been distributed under a formula Paperwork Reduction Act of 1995 (44 submitting applications for the Section allocation to States pursuant to 7 CFR U.S.C. Chapter 35, as amended), the

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Rural Utilities Service (RUS) invites significant health risks. These FOR FURTHER INFORMATION CONTACT: comments on this information communities do not have access to, or Gerald J. Smith, President, Telephone: collection for which RUS intends to are not served by, adequate affordable (703) 756–6012. request approval from the Office of water supply systems or waste disposal Gerald J. Smith, Management and Budget (OMB). facilities. The loans and grants will be President. DATES: Comments on this notice must be available to provide water and waste [FR Doc. 04–6077 Filed 3–15–04; 8:45 am] received by May 17, 2004. disposal facilities and services to these BILLING CODE 4738–91–M FOR FURTHER INFORMATION CONTACT: communities, as determined by the Richard Annan, Acting Director, Secretary. The Section 306C WWD Loans and Grants program is Program Development & Regulatory DEPARTMENT OF COMMERCE Analysis, Rural Utilities Service, USDA, administered through 7 CFR part 1777. 1400 Independence Ave., SW., STOP Estimate of Burden: Public reporting burden for this collection of information Economics and Statistics 1522, Room 5168 South Building, Administration Washington, DC 20250–1522. is estimated to average 9 hours per Telephone: (202) 720–0784. FAX: (202) response. Decennial Census Advisory Committee 720–4120. Respondents: Not for profits; State, Local or Tribal Government. AGENCY: Economics and Statistics SUPPLEMENTARY INFORMATION: The Office Estimated Number of Respondents: 1. Administration, Department of of Management and Budget’s (OMB) Estimated Number of Responses per Commerce. regulation (5 CFR 1320) implanting Respondent: 1. ACTION: Notice of public meeting. provisions of the Paperwork Reduction Estimated Total Annual Burden on Act of 1995 (Pub. L. 104–13) requires Respondents: 9 hours. SUMMARY: Pursuant to the Federal that interested members of the public Copies of this information collection Advisory Committee Act, title 5, United and affected agencies have an can be obtained from Dawn Wolfgang, States Code, Appendix 2, section opportunity to comment on information Program Development and Regulatory 10(a)(b), the Bureau of the Census collection and recordkeeping activities Analysis, Rural Utilities Service at (202) (Census Bureau) is giving notice of a (see 5 CFR 1320.8(d)). This notice 720–0812. FAX: (202) 720–4120. E-mail: meeting of the Decennial Census identifies an information collection that [email protected]. Advisory Committee. The Committee RUS is submitting to OMB for All responses to this notice will be will address issues related to the extension. summarized and included in the request reengineered 2010 decennial census of Comments are invited on (a) whether for OMB approval. All comments will population and housing, including the the collection of information is also become a matter of public record. American Community Survey, the short- necessary for the proper performance of form-only 2010 census, and other Dated: March 11, 2004. the functions of the agency, including related decennial programs. Last minute whether the information will have Hilda Gay Legg, changes to the schedule are possible, practical utility; (b) the accuracy of the Administrator, Rural Utilities Service. which could prevent advance agency’s estimate of burden including [FR Doc. 04–5992 Filed 3–16–04; 8:45 am] notification. the validity of the methodology and BILLING CODE 3410–15–P DATES: April 29–30, 2004. On April 29, assumption used; (c) ways to enhance the meeting will begin at approximately the quality, utility and clarity of the 8:30 a.m. and end at approximately 5:15 information to be collected; and (d) BARRY GOLDWATER SCHOLARSHIP p.m. On April 30, the meeting will begin ways to minimize the burden of the AND EXCELLENCE IN EDUCATION at approximately 8:30 a.m. and end at collection of information on those who FOUNDATION approximately 12:00 p.m. are to respond, including through the ADDRESSES: use of appropriate automated, Sunshine Act Meeting The meeting will be held at electronic, mechanical, or other the Sheraton Crystal City Hotel, 1800 technological collection techniques on TIME AND DATE: 1 p.m., Thursday, March Jefferson Davis Highway, Arlington, other forms of information technology. 18, 2004. Virginia 22202. Comments may be sent to: Dawn PLACE: The Cosmos Club, 2121 FOR FURTHER INFORMATION CONTACT: Jeri Wolfgang, Program Development and Massachusetts Avenue, Washington, DC Green, Committee Liaison Officer, Regulatory Analysis, Rural Utilities 20008. Department of Commerce, U.S. Census Service, U.S. Department of Agriculture, STATUS: The meeting will be open to the Bureau, Room 3627, Federal Office 1400 Independence Ave., SW, Room public. Building 3, Washington, DC 20233, 5166-South, STOP 1522, Washington, MATTERS TO BE CONSIDERED: telephone (301) 763–2070, TTY (301) DC 20250–1522. FAX: (202) 720–4120. 1. Review and approval of the 457–2540. E-mail: [email protected]. minutes of the March 13th, 2003 Board SUPPLEMENTARY INFORMATION: The Title: 7 CFR 1777, Section 306C Water of Trustees meeting which was Decennial Census Advisory Committee and Waste Disposal (WWD) Loans and accomplished by correspondence. is composed of a Chair, Vice-Chair, and Grants. 2. Report on financial status of the up to 40 member organizations, all OMB Control Number: 0572–0109. Foundation fund. appointed by the Secretary of Type of Request: Extension of a A. Review of investment policy and Commerce. The Committee considers currently approved information current portfolio. the goals of the decennial census and collection. 3. Report on results of Scholarship data users’ needs during its Abstract: Section 306C of the Review Panel. deliberations. The Committee provides Consolidated Farm and Rural A. Discussion and consideration of an outside-user perspective about how Development Act (7 U.S.C. 1926c) scholarship candidates. research-and-design plans for the 2010 authorizes the Rural Utilities Service to B. Selection of Goldwater Scholars. reengineered decennial census, the make loans and grants to low-income 4. Other Business brought before the American Community Survey, and rural communities whose residents face Board of Trustees. related decennial programs will realize

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those goals and satisfy those needs. The 120 days after the date on which the DEPARTMENT OF COMMERCE members of the Advisory Committee preliminary results are published. will draw on their experience with However, if it is not practicable to International Trade Administration Census 2000 planning and operational complete the review within that time [A–570–504] processes, results of research studies, period, section 751(a)(3)(A) of the Act test censuses, and results of the Census allows the Department to extend the Notice of Extension of Time Limit for 2000 evaluation program to provide time limit for the preliminary results to the Preliminary Results of New Shipper input on the design and related a maximum of 365 days and for the final Reviews: Petroleum Wax Candles operations of the 2010 reengineered results to 180 days (or 300 days if the From the People’s Republic of China decennial census, the American Department does not extend the time AGENCY: Import Administration, Community Survey, and related limit for the preliminary results) from programs. International Trade Administration, the date of the publication of the A brief period will be set aside at the U.S. Department of Commerce. meeting for public comment. However, preliminary results. SUMMARY: The Department of Commerce individuals with extensive statements Background is extending the time limit for the for the record must submit them in preliminary results of the new shipper writing to the Census Bureau Committee On August 22, 2003, the Department reviews on Shanghai R&R Imp./Exp. Liaison Officer named above at least published a notice of initiation of the Co., Ltd., Changshan Import/Export Co., three working days prior to the meeting. administrative reviews of the Ltd., and Shandong Huihe Trade Co., Seating is available to the public on a antidumping duty orders on certain Ltd. under the antidumping duty order first-come, first-served basis. pasta from Italy and Turkey, covering on petroleum wax candles from the The meeting is physically accessible the period July 1, 2002 to June 30, 2003 People’s Republic of China until no later to people with disabilities. Requests for (68 FR 50750). The preliminary results than July 26, 2004. The period of review sign language interpretation or other are currently due no later than April 1, for these new shipper reviews is August auxiliary aids should be directed to the 2004. 1, 2002, through July 31, 2003. This Census Bureau Committee Liaison extension is made pursuant to section Officer as soon as known and preferably Extension of Preliminary Results of 751(a)(2)(B)(iv) of the Tariff Act of 1930, two weeks prior to the meeting. Reviews as amended. EFFECTIVE DATE: Dated: March 11, 2004. As a consequence of the number of March 17, 2004. Kathleen B. Cooper, respondents in these reviews, the FOR FURTHER INFORMATION CONTACT: Under Secretary for Economic Affairs, Department has not had an opportunity Douglas Kirby or Jacky Arrowsmith, Economics and Statistics Administration. to consider sales-below-cost allegations AD/CVD Enforcement, Import [FR Doc. 04–6003 Filed 3–16–04; 8:45 am] against eight of the respondents or Administration, International Trade BILLING CODE 3510–07–P schedule verifications. We therefore Administration, U.S. Department of Commerce, 14th Street and Constitution determine that it is not practicable to Avenue, NW., Washington DC 20230; complete the preliminary results of DEPARTMENT OF COMMERCE telephone: (202) 482–3782 or (202) 482– these reviews within the original time 5255, respectively. International Trade Administration limits, and we are extending the time SUPPLEMENTARY INFORMATION: limits for completion of the preliminary [A–475–818, A–489–805] results until no later than July 29, 2004. Statutory Time Limits Certain Pasta from Italy and Turkey: See Decision Memorandum from Section 351.214(i)(1) of the Extension of Preliminary Results of Melissa Skinner to Holly A. Kuga, dated regulations requires the Department to 2002/2003 Antidumping Duty March 10, 2004, which is on file in the issue the preliminary results of a new Administrative Reviews Central Records Unit, Room B–099 of shipper review within 180 days after the the main Commerce Building. We AGENCY: date on which the new shipper review Import Administration, intend to issue the final results no later International Trade Administration, was initiated, and the final results of than 120 days after the publication of Department of Commerce. review within 90 days after the date on the notice of preliminary results of these which the preliminary results were EFFECTIVE DATE: March 17, 2004. reviews. issued. However, if the Department FOR FURTHER INFORMATION CONTACT: determines the issues are Alicia Kinsey at (202) 482–4793, Office This extension is in accordance with section 751(a)(3)(A) of the Act. extraordinarily complicated, section of AD/CVD Enforcement VI, Group II, 351.214(i)(2) of the regulations allows Import Administration, International Dated: March 10, 2004. the Department to extend the deadline Trade Administration, U.S. Department Holly A. Kuga, for the preliminary results to up to 300 of Commerce, 14th Street and Acting Deputy Assistant Secretary, Import days after the date on which the new Constitution Ave, NW., Washington, DC Administration. shipper review was initiated. 20230. [FR Doc. 04–6018 Filed 3–16–04; 8:45 am] Background Time Limits BILLING CODE 3510–DS–P On August 14, 2003, the Department Statutory Time Limits received timely requests from Shanghai Section 751(a)(3)(A) of the Tariff Act R&R Imp./Exp. Co., Ltd. and Changshan of 1930, as amended (the Act), requires Import/Export Co., Ltd., and on August the Department to issue the preliminary 28, 2003, the Department received a results of a review within 245 days after timely request from Shandong Huihe the last day of the anniversary month of Trade Co., Ltd. pursuant to section an order/finding for which a review is 751(a)(2)(B) of the Tariff Act of 1930 requested and the final results within (the Act) and in accordance with 19 CFR

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351.214(c), for new shipper reviews ACTION: Notice of extension of time limit Because the Department requires time to under the antidumping duty order on for preliminary results of administrative review and analyze these responses petroleum wax candles from the PRC. review. once they are received and to issue This order has an August anniversary supplemental questionnaires if month. On September 30, 2003, the SUMMARY: The Department of Commerce necessary, it is not practicable to Department initiated these three new is extending the time limit for the complete this review within the shipper reviews. See Petroleum Wax preliminary results in the current originally anticipated time limit (i.e., Candles: Initiation of Antidumping Duty administrative review of the April 1, 2004). Therefore, the New Shipper Reviews, 68 FR 57876 countervailing duty order on certain Department is extending the time limit (October 7, 2003). pasta from Italy. The period of review is for completion of the preliminary January 1, 2002 through December 31, results to not later than July 30, 2004, Extension of Time Limits for 2002. This extension is made pursuant in accordance with section 751(a)(3)(A) Preliminary Results to section 751(a)(3)(A) of the Tariff Act of the Act. of 1930, as amended by the Uruguay Pursuant to section 751(a)(2)(B) of the We are issuing and publishing this Round Agreements Act. Act, the Department may extend the notice in accordance with sections EFFECTIVE DATE: deadline for completion of the March 17, 2004. 751(a)(1) and 777(i)(1) of the Act. preliminary results of a new shipper FOR FURTHER INFORMATION CONTACT: Dated: March 11, 2004. review if it determines that the case is Melani Miller, Import Administration, Jeffrey May, International Trade Administration, extraordinarily complicated. The Deputy Assistant Secretary for AD/CVD Department has determined that these U.S. Department of Commerce, 14th Enforcement. Street and Constitution Avenue, NW., cases are extraordinarily complicated, [FR Doc. 04–6020 Filed 3–16–04; 8:45 am Washington, DC 20230; telephone: (202) and the preliminary results of these new BILLING CODE 3510–DS–P shipper reviews cannot be completed 482–0116. within the statutory time limit of 180 SUPPLEMENTARY INFORMATION: days. The Department finds that these Background DEPARTMENT OF COMMERCE new shipper reviews are extraordinarily complicated because there are a number On August 22, 2003, the Department National Oceanic and Atmospheric of issues that must be addressed. For of Commerce (‘‘the Department’’) Administration published a notice of initiation of example, the Department is in the administrative review of the process of issuing supplemental National Sea Grant Review Panel countervailing duty order on certain questionnaires requesting additional pasta from Italy, covering the period AGENCY: National Oceanic and information concerning affiliation and January 1, 2002 through December 31, Atmospheric Administration, the bona fides of the sales. Given the 2002. See Initiation of Antidumping and Commerce. issues in this case, the Department may Countervailing Duty Administrative ACTION: Notice of public meeting. find it necessary to request even more Reviews, 68 FR 50750 (August 22, 2003). information in these new shipper SUMMARY: This notice sets forth the The preliminary results for this review reviews. Therefore, in accordance with schedule and proposed agenda of a are currently due no later than April 1, forthcoming meeting of the Sea Grant section 351.214(i)(2) of the regulations, 2004. the Department is extending the time Review Panel. The meeting will have limit for the completion of preliminary Extension of Time Limit for Preliminary several purposes. Panel members will results to three hundred days. The Results discuss and provide advice on the preliminary results will now be due no Section 751(a)(3)(A) of the Tariff Act National Sea Grant College Program in later than July 26, 2004. of 1930, as amended by the Uruguay the areas of program evaluation, This notice is published pursuant to Round Agreements Act (‘‘the Act’’) strategic planning, education and sections 751(a)(2)(B) and 777(i)(1) of the requires the Department to issue the extension, science and technology Act. preliminary results of an administrative programs, and other matters as described below: Dated: March 11, 2004. review within 245 days after the last day of the anniversary month of an order for DATES: The announced meeting is Joseph A. Spetrini, scheduled during two days: Tuesday, Deputy Assistant Secretary for Import which a review is requested and a final determination within 120 days after the April 6, 1 p.m. to 6 p.m.; Wednesday, Administration, Group III. April 7, 8:45 a.m. to 3 p.m. [FR Doc. 04–6016 Filed 3–16–04; 8:45 am] date on which the preliminary results are published. If it is not practicable to ADDRESSES: On April 6th, National BILLING CODE 3510–DS–P complete the review within the time Oceanic and Atmospheric period, section 751(a)(3)(A) of the Act Administration, 1305 East-West Highway, Conference Room #1W611, DEPARTMENT OF COMMERCE allows the Department to extend these deadlines to a maximum of 365 days Silver Spring, Maryland 20910. On International Trade Administration and 180 days, respectively. April 7th, Sea Grant Association Office, Several of the respondents in this 1201 New York Avenue, Northwest, 4th Floor Conference Room, Washington, [C–475–819] proceeding have outstanding supplemental questionnaire responses. DC 20005. Certain Pasta From Italy: Notice of Additionally, one respondent, Pastificio FOR FURTHER INFORMATION CONTACT: Dr. Extension of Time Limit for Preliminary Carmine Russo S.p.A., was not issued Francis M. Schuler, Designated Federal Results of Countervailing Duty the original questionnaire until more Official, National Sea Grant College Administrative Review than a month after the other Program, National Oceanic and respondents because it was still Atmospheric Administration, 1315 East- AGENCY: Import Administration, participating in a concurrent new West Highway, Room 11837, Silver International Trade Administration, shipper review of this order (a review Spring, Maryland 20910, (301)713– Department of Commerce. which has since been terminated). 2445.

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SUPPLEMENTARY INFORMATION: The Panel, Atmospheric Administration (NOAA), flipper and VHF tags up to 50 ringed which consists of a balanced Commerce. seals per year. Of these, up to 15 seals representation from academia, industry, ACTION: Receipt of application. would have satellite tags attached, 10 state government and citizens groups, would have sonic transmitters attached, was established in 1976 by Section 209 SUMMARY: Notice is hereby given that and 10 would have video cameras of the Sea Grant Improvement Act Brendan Kelly, Ph.D., University of attached. The applicant requests a five- (Public Law 94–461, 33 U.S.C. 1128). Alaska Southeast, 11120 Glacier year permit. The Panel advises the Secretary of Highway, Juneau, Alaska 99801, has In compliance with the National Commerce and the Director of the applied in due form for a permit to take Environmental Policy Act of 1969 (42 National Sea Grant College Program ringed seals (Phoca hispida) for U.S.C. 4321 et seq.), an initial with respect to operations under the purposes of scientific research. determination has been made that the Act, and such other matters as the DATES: Written, telefaxed, or e-mail activity proposed is categorically Secretary refers to them for review and comments must be received on or before excluded from the requirement to advice. The agenda for the meeting is as April 16, 2004. prepare an environmental assessment or follows: ADDRESSES: The application and related environmental impact statement. Concurrent with the publication of Tuesday, April 6, 2004 documents are available for review upon written request or by appointment this notice in the Federal Register, 1 p.m.–6 p.m. in the following office(s): NMFS is forwarding copies of this 1 p.m.—Welcoming and Opening Permits, Conservation and Education application to the Marine Mammal Remarks Division, Office of Protected Resources, Commission and its Committee of 1:15 p.m.—New Officers Election NMFS, 1315 East-West Highway, Room Scientific Advisors. 1:30 p.m.—Executive Committee Report 1:45 p.m.—National Sea Grant Office 13705, Silver Spring, MD 20910; phone Dated: March 12, 2004. (NSGO) Director Report (301)713–2289; fax (301)713–0376; and Amy C. Sloan, 2:15 p.m.—Panel Strategy Discussion Alaska Region, NMFS, P.O. Box Acting Chief, Permits, Conservation and 3:30 p.m.—Break 21668, Juneau, AK 99802–1668; phone Education Division, Office of Protected 3:45 p.m.—Communications Review (907)586–7221; fax (907)586–7249. Resources, National Marine Fisheries Service. Report Written comments or requests for a [FR Doc. 04–6050 Filed 3–16–04; 8:45 am] public hearing on this application 5:30 p.m.—Old Panel Business BILLING CODE 3510–22–S 6 p.m.—Adjourn should be mailed to the Chief, Permits, Conservation and Education Division, Wednesday, April 7, 2004 F/PR1, Office of Protected Resources, DEPARTMENT OF COMMERCE 8:45 a.m.–3 p.m. NMFS, 1315 East-West Highway, Room 8:45 a.m.—New Panel Business 13705, Silver Spring, MD 20910. Those Patent and Trademark Office 9 a.m.—NOAA Research Assistant individuals requesting a hearing should Administrator Update set forth the specific reasons why a Submission for OMB Review; 9:45 a.m.—NOAA Ocean Service hearing on this particular request would Comment Request Deputy Administrator Update be appropriate. The United States Patent and 10:15 a.m.—Break Comments may also be submitted by Trademark Office (USPTO) has 10:30 a.m.—Congressional Reports facsimile at (301)713–0376, provided 11:30 a.m.—Sea Grant Association submitted to the Office of Management the facsimile is confirmed by hard copy Report and Budget (OMB) for clearance the submitted by mail and postmarked no 12 noon—Lunch following proposal for collection of later than the closing date of the 1 p.m.—NSGO Update information under the provisions of the comment period. 1:30 p.m.—Consortium for Paperwork Reduction Act (44 U.S.C. Comments may also be submitted by Oceanographic Research and chapter 35). e-mail. The mailbox address for Education (CORE) Report Agency: United States Patent and providing email comments is 2 p.m.—NSGO Update (continued) Trademark Office (USPTO). [email protected]. Include 2:30 p.m.—Wrap-up Title: Legal Processes. 3 p.m.—Adjourn in the subject line of the e-mail Form Number(s): None. This meeting will be open to the comment the following document Agency Approval Number: 0651– public. identifier: File No. 350–1739. 0046. FOR FURTHER INFORMATION CONTACT: Dated: March 12, 2004. Type of Request: Extension of a Amy Sloan or Ruth Johnson, (301)713– Louisa Koch, currently approved collection. 2289. Burden: 29 hours annually. Deputy Assistant Administrator, Office of Oceanic and Atmospheric Research. SUPPLEMENTARY INFORMATION: The Number of Respondents: 157 subject permit is requested under the responses per year. [FR Doc. 04–6023 Filed 3–16–04; 8:45 am authority of the Marine Mammal Avg. Hours Per Response: The USPTO BILLING CODE 3510–KA–P Protection Act of 1972, as amended estimates that it will take the public (MMPA; 16 U.S.C. 1361 et seq.), and the approximately 5 minutes (0.08 hours) to DEPARTMENT OF COMMERCE Regulations Governing the Taking and 1 hour to gather the necessary Importing of Marine Mammals (50 CFR information, prepare the appropriate National Oceanic and Atmospheric part 216). documents, and submit the required Administration The applicant proposes to study site information to the USPTO. fidelity, behavior, and the ecological Needs and Uses: This collection [I.D. 031204C] significance of home ranges of ringed covers information requirements related Marine Mammals; File No. 350–1739 seals in the Prudhoe Bay, Alaska region to civil actions and claims involving of the Beaufort Sea. This will be current or former employees of the AGENCY: National Marine Fisheries accomplished through capturing, United States Patent and Trademark Service (NMFS), National Oceanic and genetics sampling, and tagging with Office (USPTO). The rules for these

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legal processes may be found under 37 COMMODITY FUTURES TRADING PLACE: 1155 21st St., N.W., Washington, CFR part 104, which outlines COMMISSION DC Room 1012. procedures for service of process, STATUS: Closed. Sunshine Act Meeting demands for employee testimony and MATTERS TO BE CONSIDERED: Surveillance production of documents, reports of TIME AND DATE: 11 a.m., Friday, April 2, Matters. unauthorized testimony, employee 2004. FOR FURTHER INFORMATION CONTACT: Jean indemnification, and filing claims PLACE: 1155 21st St., NW., Washington, A. Webb, (202) 418–5100. against the USPTO under the Federal DC, Room 1012. Tort Claims Act (28 U.S.C. 2672). The Jean A. Webb, STATUS: Closed. public uses this collection to serve a Secretary of the Commission. MATTERS TO BE CONSIDERED: summons or complaint on the USPTO, Surveillance [FR Doc. 04–6127 Filed 3–15–04; 1:52 pm] matters. demand employee testimony or BILLING CODE 6351–01–M documents related to a legal proceeding, FOR FURTHER INFORMATION CONTACT: Jean or file a tort claim against the USPTO A. Webb, (202) 418–5100. COMMODITY FUTURES TRADING under the Federal Tort Claims Act. This Jean A. Webb, COMMISSION collection is also necessary so that Secretary of the Commission. current and former USPTO employees [FR Doc. 04–6124 Filed 3–15–04; 1:53 am] Sunshine Act Meeting may properly forward service and BILLING CODE 6351–01–M demands to the Office of General TIME AND DATE: 11 a.m., Friday, April 30, Counsel, report unauthorized testimony, 2004. and request indemnification. No forms COMMODITY FUTURES TRADING PLACE: 1155 21st St., NW., Washington, are provided by the USPTO for COMMISSION DC, Room 1012. submitting the information in this Sunshine Act Meeting STATUS: Closed. collection. MATTERS TO BE CONSIDERED: Surveillance Affected Public: Individuals or TIME AND DATE: 11 a.m., Friday, April 9, matters. households, businesses or other for- 2004. FOR FURTHER INFORMATION CONTACT: Jean profits, not-for-profit institutions, farms, PLACE: 1155 21st St., NW., Washington, A. Webb, (202) 418–5100. the Federal Government, and State, DC, Room 1012. Jean A. Webb, local or tribal governments. STATUS: Closed. Secretary of the Commission. Frequency: On occasion. MATTERS TO BE CONSIDERED: Surveillance Matters. [FR Doc. 04–6128 Filed 3–15–04; 1:52 pm] Respondent’s Obligation: Required to FOR FURTHER INFORMATION CONTACT: Jean BILLING CODE 6351–01–M obtain or retain benefits. A. Webb, (202) 418–5100. OMB Desk Officer: David Rostker, (202) 395–3897. Jean A. Webb, DEPARTMENT OF DEFENSE Secretary of the Commission. Copies of the above information [FR Doc. 04–6125 Filed 3–15–04; 1:52 am] Office of the Secretary collection proposal can be obtained by BILLING CODE 6351–01–M calling or writing Susan K. Brown, National Security Education Board Records Officer, Office of the Chief Group of Advisors Meeting Information Officer, Office of Data COMMODITY FUTURES TRADING AGENCY: National Defense University. Architecture and Services, Data COMMISSION Administration Division, 703–308– ACTION: Notice of meeting. Sunshine Act Meeting 7400, U.S. Patent and Trademark Office, SUMMARY: Pursuant to Public Law 92– P.O. Box 1450, Alexandria, VA 22313, TIME AND DATE: 11 a.m., Friday, April 16, 463, notice is hereby given of a Attn: CPK 3 Suite 310; or by e-mail at 2004. forthcoming meeting of the National [email protected]. PLACE: 1155 21st St., NW., Washington, Security Education Board Group of Written comments and DC, Room 1012. Advisors. The purpose of the meeting is to review and make recommendations to recommendations for the proposed STATUS: Closed. information collection should be sent on the Board concerning requirements MATTERS TO BE CONSIDERED: Surveillance established by the David L. Boren or before April 16, 2004, to David Matters. Rostker, OMB Desk Officer, Room National Security Education Act, Title FOR FURTHER INFORMATION CONTACT: Jean 10202, New Executive Office Building, VIII of Public Law 102–183, as A. Webb, (202) 418–5100. 725 17th Street, NW., Washington, DC amended. 20503. Jean A. Webb, DATES: April 26–27, 2004. Secretary of the Commission. Dated: March 10, 2004. ADDRESSES: The University of Virginia, [FR Doc. 04–6126 Filed 3–15–04; 1:52 pm] Susan K. Brown, Colonnade Club, Pavilion VII, West BILLING CODE 6351–01–M Lawn, Charlottesville, VA 22903. Records Officer, USPTO, Office of the Chief Information Officer, Office of Data FOR FURTHER INFORMATION CONTACT: Dr. Architecture and Services, Data COMMODITY FUTURES TRADING Edmond J. Collier, Director for Administration Division. COMMISSION Programs, National Security Education [FR Doc. 04–5938 Filed 3–16–04; 8:45 am] Program, 1101 Wilson Boulevard, Suite BILLING CODE 3510–16–P Sunshine Act Meeting 1210, Rosslyn P.O. Box 20010, Arlington, Virginia 22209–2248; (703) TIME AND DATE: 11 a.m., Friday, April 23, 696–1991. Electronic mail address: 2004. [email protected].

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SUPPLEMENTARY INFORMATION: The SUMMARY: In accordance with 37 CFR Cooling.’’ The United States National Security Education Board 404.6 and 404.7, announcement is made Government, as represented by the Group of Advisors meeting is open to of the availability for licensing of the Secretary of the Army, has rights in this the public. invention described in U.S. Provisional invention. Dated: March 11, 2004. Patent Application No. 60/495,126 entitled ‘‘Gated Auscultatory Device,’’ ADDRESSES: Commander, U.S. Army L.M. Bynum, filed August 15, 2003. The United States Medical Research and Materiel Alternate OSD Federal Register Liaison Government, as represented by the Command, ATTN: Command Judge Officer, Department of Defense. Secretary of the Army, has rights in this Advocate, MCMR–JA, 504 Scott Street, [FR Doc. 04–5975 Filed 3–16–04; 8:45 am] invention. Fort Detrick, Frederick, MD 21702– BILLING CODE 5001–06–M ADDRESSES: Commander, U.S. Army 5012. Medical Research and Materiel FOR FURTHER INFORMATION CONTACT: For DEPARTMENT OF DEFENSE Command, ATTN: Command Judge Advocate, MCMR–JA, 504 Scott Street, patent issues, Ms. Elizabeth Arwine, Patent Attorney, (301) 619–7808. For Office of the Secretary Fort Detrick, Frederick, MD 21702– 5012. licensing issues, Dr. Paul Mele, Office of Research & Technology Assessment, National Security Education Board FOR FURTHER INFORMATION CONTACT: For (301) 619–6664, both at telefax (301) Meeting patent issues, Ms. Elizabeth Arwine, 619–5034. AGENCY: National Defense University Patent Attorney, (301) 619–7808. For licensing issues, Dr. Paul Mele, Office of SUPPLEMENTARY INFORMATION: The ACTION: Notice of meeting. Research & Technology Assessment, present invention relates in general to (301) 619–6664, both at telefax (301) SUMMARY: methods for removing heat from Pursuant to Public Law 92– 619–5034. 463, notice is hereby given of a humans and in particular to methods for forthcoming meeting of the National SUPPLEMENTARY INFORMATION: This new removing heat from humans using Security Education Board. The purpose device is an electronic circuit that liquid cooling garments. interfaces with electronic stethoscopes of the meeting is to review and make Brenda S. Bowen, recommendations to the Secretary or other types of heart sound recording Alternate Army Federal Register Liaison concerning requirements established by equipment and allows the health care Officer. the David L. Boren National Security provider (1) to listen to heart sounds [FR Doc. 04–5971 Filed 3–16–04; 8:45 am] Education Act, Title VIII of Public Law during all periods of the cardiac cycle as he/she would with a regular 102–183, as amended. BILLING CODE 3710–08–M stethoscope (normal use) and (2) to DATES: May 20, 2004. selectively listen to specific parts of the ADDRESSES: The Crystal City Marriott cardiac cycle. This new device allows DEPARTMENT OF DEFENSE Hotel, 1999 Jefferson Davis Highway, health care providers or trainees to Arlington, Virginia 22202. listen to either systole or diastole or Defense Logistics Agency FOR FURTHER INFORMATION CONTACT: shorter intervals within these periods to Dr. Privacy Act of 1974; Computer Edmond J. Collier, Deputy Director, facilitate identification of normal or Matching Program National Security Education Program, abnormal heart sounds. 1101 Wilson Boulevard, Suite 1210, Brenda S. Bowen, AGENCY: Defense Manpower Data Rosslyn, Virginia 22209–2248; (703) Alternate Army Federal Register Liaison Center, Defense Logistics Agency, DoD. 696–1991. Electronic mail address: Officer. [email protected]. [FR Doc. 04–5972 Filed 3–16–04; 8:45 am] ACTION: Notice of a Computer Matching SUPPLEMENTARY INFORMATION: The Board BILLING CODE 3710–08–M Agreement. meeting is open to the Public. SUMMARY: On March 10, 2004, the Dated: March 11, 2004. DEPARTMENT OF DEFENSE Department of Defense published 2 L.M. Bynum, Department of the Army Privacy Act notices on Privacy Act of Alternate OSD Federal Register Liaison 1974; Computer Matching Program. This Officer. Availability for Non-Exclusive, notice is to correct the effective date for [FR Doc. 04–5976 Filed 3–16–04; 8:45 am] Exclusive, or Partially Exclusive the notice published on page 11391 BILLING CODE 5001–06–M Licensing of U.S. Provisional Patent (agreement between DoD and VA) and Application Concerning Skin the notice published on page 11392 DEPARTMENT OF DEFENSE Temperature Feedback for (agreement between DoD and OPM). Microclimate Cooling The effective date for both documents is Department of the Army hereby corrected to read ‘‘April 9, AGENCY: Department of the Army, DoD. 2004.’’ All other information is ACTION: Notice. Availability for Non-Exclusive, unchanged. Exclusive, or Partially Exclusive SUMMARY: Licensing of U.S. Provisional Patent In accordance with 37 CFR Dated: Match 11, 2004. Application Concerning Gated 404.6 and 404.7, announcement is made L.M. Bynum, of the availability for licensing of the Auscultatory Device Alternate OSD Federal Register Liaison invention described in the U.S. Officer, Department of Defense. Provisional Patent Application Docket AGENCY: Department of the Army, DoD. [FR Doc. 04–5977 Filed 3–16–04; 8:45 am] No. RIEM 03–28X entitle ‘‘Skin ACTION: Notice. Temperature Feedback for Microclimate BILLING CODE 5001–06–M

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DEPARTMENT OF DEFENSE address if they wish to be notified of the Dated: February 24, 2004. SEIS/EIR circulation. Michael J. Conrad, Jr., Department of the Army; Corps of 2. Project Information: The Yuba Colonel, Corps of Engineers, District Engineer. Engineers River Basin is located in western Yuba [FR Doc. 04–5970 Filed 3–16–04; 8:45 am] Intent To Prepare a Draft Supplemental County about 50 miles north of BILLING CODE 3710–E7–M Environmental Impact Statement/ Sacramento. The project focuses on Environmental Impact Report for the approximately 21 miles of levees along Yuba River Basin Project, Yuba the Yuba and Feather Rivers in the County, CA vicinity of Marysville, California. The DEPARTMENT OF ENERGY Yuba River Basin project area is divided AGENCY: Department of the Army, U.S. into three reaches: reach 1—Yuba River/ Office of Energy Efficiency and Army Corps of Engineers, DoD. Feather River; reach 2—Feather River; Renewable Energy ACTION: Notice of intent. and reach 3—Marysville ring levee. Energy Conservation Program for The Feasibility Report and Final EIS/ SUMMARY: In accordance with the Consumer Products: Decision and EIR were completed in April 1998. National Environmental Policy Act Order Granting a Waiver From the DOE Congress authorized the project in the (NEPA) and the California Clothes Washer Test Procedure to Water Resources Development Act of Environmental Quality Act (CEQA), the Fisher & Paykel (Case No. CW–012) U.S. Army Corps of Engineers (Corps), 1999, and the Record of Decision was signed in June 2000. The authorized Sacramento District, is preparing a Draft AGENCY: Office of Energy Efficiency and Supplemental Environmental Impact project included specific levee Renewable Energy, Department of Statement/Environmental Impact Report modifications on 6.1 miles of the left Energy. (SEIS/EIR) to evaluate modifications to bank of the Yuba River upstream of the the previously authorized plan to confluence with the Feather River; 10 ACTION: Notice of decision and order. reduce flood damages in the lower Yuba miles of levee on the left bank of the River Basin, part of the Feather River Feather River downstream of the SUMMARY: Notice is given of the Basin, and the city of Marysville in confluence of the Yuba River; and 5 Decision and Order granting a Waiver to Yuba County, California. The miles of the Marysville ring levee. The Fisher & Paykel Appliances Limited modifications are needed to resolve levee modification work as authorized (Fisher & Paykel) from the existing previously unknown levee foundation was intended to bring the level of Department of Energy (DOE or problems in portions of the authorized protection for these levees up to about Department) clothes washer test project, thereby ensuring the level of a 200-year level of protection. procedure for its IW model clothes flood protection previously planned. Since the final Yuba River Basin washer which has an adaptive control The basic study authority for the Yuba project was authorized, geotechnical system. River Basin study was provided under investigations and new hydrology have the Flood Control Act of 1962. FOR FURTHER INFORMATION CONTACT: identified previously unknown levee Barbara Twigg, U.S. Department of ADDRESSES: Send written comments and foundation problems in portions of the suggestions concerning this study to Ms. Energy, Office of Energy Efficiency and specifically authorized project. Because Renewable Energy, EE–2J, 1000 Kim Stevens, U.S. Army Corps of flooding is still a significant problem for Engineers, Sacramento District, Attn: Independence Avenue, SW., the affected communities along the Washington, DC 20585–0121, (202) 586– Planning Division (CESPK–PD–R), 1325 Yuba and Feather Rivers, the State of J Street, Sacramento, California 95814. 8714, email: [email protected]; California Reclamation Board has or Francine Pinto, Esq., U.S. Department Requests to be placed on the mailing list requested that the Corps initiate a should also be sent to this address. of Energy, Office of General Counsel, reevaluation of the project. GC–72, 1000 Independence Avenue, FOR FURTHER INFORMATION CONTACT: Ms. 3. Proposed Action: The proposed SW., Washington, DC 20585, (202) 586– Kim Stevens, E-mail at action would be limited to a 7432, email: [email protected]. [email protected], reevaluation of the elements of the telephone (916) 557–7332, or fax (916) SUPPLEMENTARY INFORMATION: In authorized project and the design 557–7856. accordance with 10 CFR 430.27, notice changes required to provide the level of SUPPLEMENTARY INFORMATION: is hereby given of the issuance of the protection previously planned. 1. Public Involvement: The Yuba Decision and Order as set out below. In River Basin project will be coordinated 4. Alternatives: Potential alternatives the Decision and Order, Fisher & Paykel between Federal, State, and local to reduce flood damages include: (1) No has been granted a Waiver from the governments; local stakeholders; special Action, (2) Authorized Project, and (3) existing Department of Energy clothes interest groups; and any other interested Proposed Project. Under the Authorized washer test procedure for the company’s individuals and organizations. The Project, no modifications would be clothes washer model IW which has an Corps will announce availability of the made to the features of alternative 3 as adaptive control system. The Waiver draft supplemental document in the described in the 1998 Feasibility Report allows Fisher & Paykel to use a modified Federal Register and other media, and and Final EIS/EIR. Under the Proposed test procedure for rating its IW clothes will provide the public, organizations, Project, several modifications would be washer model. Fisher & Paykel shall be and agencies with an opportunity to made to the Authorized Project, allowed to test its IW clothes washer submit comments, which will be including deeper slurry walls, deleting using the default cycle, the midpoint of addressed in the Final SEIS/EIR. A 45- some berms, installing some new slurry the five settings controlled by the day public review period will be walls, increasing some berm widths, washer’s ‘‘How Dirty’’ button. That provided for individuals and agencies to adding impervious fill and drain cycle is the closest equivalent to the review and comment on the SEIS/EIR. blankets to the levees, relocating slurry energy test cycle for washing cotton or All interested parties should respond to walls from the levee toe to crown, and linen clothes used in 10 CFR part 430, this notice and provide a current reshaping some levees. subpart B, appendix J1.

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Issued in Washington, DC, on March 12, policy reasons to grant immediate relief The Department, as required, consulted 2004. pending a determination on the Petition with the Federal Trade Commission David K. Garman, for Waiver. 10 CFR 430.27 (g). An (FTC) concerning Fisher & Paykel’s Assistant Secretary, Energy Efficiency and Interim Waiver remains in effect for a petition. The FTC did not have any Renewable Energy. period of 180 days from the date of objections to the issuance of the waiver Decision and Order issuance or until DOE issues its to Fisher & Paykel. determination on the Petition for Conclusion: After careful Department of Energy Waiver, whichever is sooner, and may consideration of all the material that Office of Energy Efficiency and be extended for an additional 180 days, Fisher & Paykel submitted and Renewable Energy if necessary. 10 CFR 430.27(h) consultation with the FTC, it is ordered In addition to the waiver process that: In the Matter of: Fisher & Paykel. outlined in 10 CFR 430.27, the clothes (1) The ‘‘Petition for Waiver’’ filed by (Case No. CW–012) washer test procedure published August Background: Title III of the Energy Fisher & Paykel Appliances Limited 27, 1997, specifically requires (Case No. CW–012) is hereby granted as Policy and Conservation Act (EPCA) manufacturers of clothes washers with sets forth a variety of provisions set forth in paragraph (2) below. an adaptive control system, other than (2) Fisher & Paykel shall be permitted designed to improve energy efficiency. an adaptive water fill control system, to to test its adaptive control clothes Part B of Title III (42 U.S. C. 6291–6309) obtain a waiver to establish an washer model IW on the basis of the test provides for the Energy Conservation acceptable test procedure for each such procedure specified in 10 CFR part 430 Program for Consumer Products Other clothes washer. 62 FR 45501, 45514. subpart B, appendix J1, with one Than Automobiles. Among its Neither Appendix J (in effect through modification to section 1.7 which provisions, it requires DOE to prescribe December 31, 2003) nor Appendix J1 specifies the Energy test cycle. Because standardized test procedures to measure (effective January 1, 2004) of that test model IW does not have the specified the energy consumption of certain procedure provides a means for Energy test cycle, described in section consumer products, including clothes determining the energy consumption of 1.7 as the cycle recommended by the washers. The intent of the test a clothes washer with an adaptive manufacturer for washing cotton or procedures is to provide a comparable control system. linen clothes, Fisher & Paykel shall test measure of energy consumption that On March 26, 2003, Fisher & Paykel its clothes washer model IW using the will assist consumers in making filed an Application for Interim Waiver default cycle which begins when a purchasing decisions. The test and a Petition for Waiver regarding its consumer presses the power/start button procedures for clothes washers are set clothes washer model IW which has an and does not manually select an forth in 10 CFR part 430, subpart B, adaptive control system that affects alternative ‘‘How Dirty’’ setting. This appendix J1. more than the water fill and cannot be The Department’s regulations in 10 default cycle is the midpoint of the five tested accurately using the existing test settings controlled by the washer’s CFR 430.27 set forth a process by which procedure. The Department granted the an interested person may seek a waiver ‘‘How Dirty’’ button, setting three. Interim Waiver on October 30, 2003, With the exception of the and an interim waiver from the test and published its decision in the procedure requirements for a covered modification set forth above, Fisher & Federal Register on November 7, 2003. Paykel shall comply in all respects with consumer product. The waiver process 68 FR 63075. In the same Federal allows the Assistant Secretary for the test procedure requirements Register notice, the Department specified in 10 CFR part 430 subpart B, Conservation and Renewable Energy published Fisher & Paykel’s Petition for (now known as the Assistant Secretary appendix J1. Waiver, and solicited comments, data, (3) The Waiver shall remain in effect for Energy Efficiency and Renewable and information respecting the petition. from the date of issuance of this Order Energy) to waive temporarily test Fisher & Paykel requested the waiver until DOE prescribes a final test procedures for a particular basic model because its clothes washer model IW procedure appropriate to adaptive when a petitioner shows that the basic does not have the conventional control clothes washers. model contains one or more design ‘‘normal’’ cycle used by the DOE clothes (4) This Waiver applies only to Fisher characteristics which prevent testing washer test procedure set forth in 10 & Paykel’s testing of its clothes washer according to the prescribed test CFR, Part 430, Subpart B, Appendix J, model IW. procedures, or when the prescribed test or the energy test cycle for washing (5) This Waiver is based upon the procedures may evaluate the basic cotton or linen clothes used in presumed validity of statements, model in a manner so unrepresentative Appendix J1. Instead, Fisher & Paykel allegations, and documentary materials of its true energy consumption proposed an alternate test cycle that submitted by the petitioner. This Waiver characteristics as to provide materially would be equivalent to the normal cycle may be revoked or modified at any time inaccurate comparative data. Waivers and the energy test cycle, the default upon a determination that the factual generally remain in effect until a revised cycle that begins when a user pushes basis underlying the Petition is test procedure becomes effective, the power button to start the model IW incorrect. thereby resolving the problem that is the clothes washer. This default cycle is the Effective March 12, 2004, this Waiver subject of the waiver. 10 CFR 430.27(l) midpoint of the five settings controlled supersedes the Interim Waiver granted An Interim Waiver will be granted by by the washer’s ‘‘How Dirty’’ button, Fisher & Paykel on November 7, 2003. the Assistant Secretary for Energy setting three. This waiver only confirms 68 FR 63075 (Case No. CW–012). Efficiency and Renewable Energy if it is which test cycle to use. Fisher & Paykel determined that the applicant will will then follow the remaining steps of Issued in Washington, DC, on March 12, experience economic hardship if the the existing test procedure to determine 2004. Application for Interim Waiver is the energy consumption of the clothes David K. Garman, denied, if it appears likely that the washer. Assistant Secretary, Energy Efficiency and Petition for Waiver will be granted, and/ Comments and FTC Consultation: The Renewable Energy. or the Assistant Secretary determines Department did not receive any [FR Doc. 04–5996 Filed 3–16–04; 8:45 am that it would be desirable for public comments on the Petition for Waiver. BILLING CODE 6450–01–P

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DEPARTMENT OF ENERGY IIPS may be E-mailed to the IIPS Help computers with thousands of times Desk at: [email protected] or you more computational power than any in Office of Science Financial Assistance may call the help desk at: (800) 683– current use will be vital tools for Program Notice DE–FG01–04ER04–13; 0751. Further information on the use of expanding the frontiers of science and Operating/Runtime Systems for IIPS by the Office of Science is available for addressing vital national priorities. Extreme Scale Scientific Computation at: http://www.science.doe.gov/ These systems will have tens to hundreds of thousands of processors, an AGENCY: U.S. Department of Energy. production/grants/grants.html. If you are unable to submit the unprecedented level of complexity, and ACTION: Notice inviting grant application through IIPS, please contact will require significant new levels of applications. the Grants and Contracts Division, scalability and fault management. The SUMMARY: The Office of Advanced Office of Science at: (301) 903–5212 or overwhelming size and complexity of Scientific Computing Research (ASCR) (301) 903–3604, in order to gain such systems poses deep technical of the Office of Science (SC), U.S. assistance for submission through IIPS challenges that must be overcome to Department of Energy (DOE), hereby or to receive special approval and fully exploit their potential for scientific announces its interest in receiving instruction on how to submit printed discovery. Applications require applications for research grants in the applications. multiple services from OS/R layers, including: resource management and area of operating and runtime systems FOR FURTHER INFORMATION CONTACT: Dr. scheduling, fault-management for extreme scale scientific computation. Frederick Johnson, U.S. Department of (detection, prediction, recovery, and Partnerships among universities, Energy, Office of Science, SC–31/ reconfiguration), configuration National Laboratories, and industry are Germantown Building, 1000 management, and file systems access encouraged. The full text of Program Independence Avenue, SW., and management. Current and future Notice 04–13, is available via the Washington, DC 20585–1290, telephone: large-scale parallel systems require that Internet using the following Web site (301) 903–3601, fax: (301) 903–7774, E- such services be implemented in a fast address: http://www.science.doe.gov/ mail: [email protected]. production/grants/grants.html. and scalable manner so that the OS/R SUPPLEMENTARY INFORMATION: does not become a performance DATES: Preapplications referencing The Forum to Address Scalable bottleneck. The current trend in large- Program Notice 04–13, should be Technologies for Runtime and scale scientific systems is to leverage received by March 26, 2004. Operating Systems (FAST–OS) has Formal applications in response to operating systems developed for other conducted a series of workshops areas of computing—operating systems this notice should be received by 4:30 focused on issues associated with that were not specifically designed for p.m., Eastern Time, May 4, 2004, to be operating and runtime systems for very large-scale, parallel computing accepted for merit review and funding large computing systems used for high platforms. Unix, Linux and other Unix in Fiscal Year 2004. end scientific modeling and simulation. derivatives are the most popular OS’s in ADDRESSES: Preapplications referencing This workshop series was sponsored by use for high end scientific computing, Program Notice 04–13, should be sent the Office of Advanced Scientific and these all reflect a technological via e-mail using the following address: Computing Research of the DOE Office heritage nearly 30 years old with no [email protected] of Science. The most recent workshop fundamental mechanisms to support with a copy to [email protected]. was held in July 2003, and the final parallel systems. Formal applications referencing report, together with other results of the Without reliable, robust operating Program Notice 04–13, must be sent workshop series may be found at: http:/ systems and runtime environments the electronically by an authorized /www.cs.unm.edu/∼fastos. An computational science research institutional business official through interagency workshop, the Workshop on community will be unable to easily and DOE’s Industry Interactive Procurement the Roadmap for the Revitalization of completely employ future generations of System (IIPS) at: http://e-center.doe.gov. High-End Computing was held in June extreme systems for scientific discovery. IIPS provides for the posting of of 2003. Section 5 of the workshop The application research community solicitations and receipt of applications report addresses runtime and operating will miss important scientific in a paperless environment via the systems. The charter of the researchers opportunities in areas such as Internet. In order to submit applications that produced this section was to computational fusion, nanotechnology, through IIPS your business official will establish baseline capabilities required and computational biology that are on need to register at the IIPS Web site. in the operating systems for projected the threshold of rapid advance through IIPS offers the option of using multiple High-End Computing systems scaled to the innovative use of extreme-scale files, please limit submissions to one the end of this decade and determine scientific computation. New volume and one file if possible, with a the critical advances that must be investments in both basic and applied maximum of no more than four PDF undertaken to meet these goals. The research are required to maintain the files. The Office of Science will include report is available at: http:// creative pace established by terascale attachments as part of this notice that www.itrd.gov/hecrtf-outreach/ computation for scientific discovery. provide the appropriate forms in PDF 20040112_cra_hecrtf_report.pdf. fillable format that are to be submitted Background: High-End Computing through IIPS. Color images should be Background Operating and Runtime Revitalization Task Force (HECRTF) submitted in IIPS as a separate file in Systems (OS/R) and Academic Research PDF format and identified as such. Operating and runtime systems During the past summer, several These images should be kept to a provide mechanisms to manage system federal agencies with interests in high minimum due to the limitations of hardware and software resources for the performance computing participated in reproducing them. They should be efficient execution of large scale the HECRTF and developed a plan for numbered and referred to in the body of scientific applications. They are future government investments in high- the technical scientific application as essential to the success of both large end computing. As part of this plan a Color image 1, Color image 2, etc. scale systems and complex applications. renewed emphasis has been placed on Questions regarding the operation of By the end of this decade petascale coordination of federally-funded

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research in this area. As a major new approaches to OS/R support for Solicitation Emphasis contributor to the HECRTF activity, the fault detection and management. This notice is focused on research and Office of Science is a leading participant Interrupts are likely to be the norm development of operating and runtime in the coordination of research rather than the exception during any systems which enable the effective investments. The research activities lengthy application run. management and use of extreme-scale described in this Notice have been • Rethinking the OS in terms of systems (petascale and above) for coordinated with participating HECRTF scalability and usability. We need to scientific computation. The overall goal research agencies, and this coordination determine how HPC requirements differ of this notice is to stimulate research will continue throughout the lifetime of from those of general computing. HPC and development related to operating the research activities. Additional requirement differences will surely and runtime systems for petascale information on the HECRTF may be systems in the 2010 timeframe. It is found at: http://www.itrd.gov/hecrtf- continue to dictate innovation in both OS structure and exported interfaces. likely that these systems will include a outreach/index.html. combination of commodity and custom • Scalability of operating systems. components, with different systems The Opportunity and the Challenge What should an operating system for a reflecting different degrees of By the end of this decade extreme hundred thousand processor machine customization. The research into scale systems will be available that are look like? Is a hierarchical approach runtime and operating systems must be based on a variety of challenging best? How can the operating system driven from the needs of current and architectures ranging from distributed make a fundamentally unreliable future applications. The primary focus memory clusters of unprecedented scale machine, in which some components is on supporting the needs of existing to the systems resulting from the are always broken, continue to and anticipated SC and other DOE DARPA High Productivity Computing effectively function? Systems program that are likely to be applications; however, the resulting • Self awareness and optimization. based upon innovative architectural systems should address issues related to How can an extreme scale system concepts, such as PIMs, FPGAs, and the broader HEC code base. An ultimate (hardware and software) monitor and complex memory hierarchies that have and perhaps idealistic goal would be to adapt to meet changing requirements of no analog in today’s terascale systems. develop a unified runtime and operating long running applications? Systems with tens to hundreds of system that could fully support and thousands of processors and new Technical challenges such as these exploit petascale and beyond systems architectural concepts will differ greatly represent an opportunity for basic and and autonomously adapt for in scale and complexity from today’s applied research to provide new performance, upgrades, security, and systems, and this difference will place insights into mechanisms for harnessing fault tolerance. The activities supported new and very difficult challenges on the potential of next generation extreme- by this notice may be a combination of OS/R design and implementation. scale systems. basic and applied research, There are many fundamental development, prototyping, testing and questions in operating system and Investment Plan of the Office of Science ultimately deployment. runtime research that must be explored The Secretary of Energy recently Example Research Topics in order to enable scientific application released a twenty year vision and plan Runtime and operating systems developers and users to achieve for research facilities in the Office of provide the glue that bind running maximum effectiveness and efficiency Science in the document, Facilities for applications to hardware. The research on this new generation of systems, the Future of Science: A Twenty-Year activities supported by this activity including (but not limited to): • Outlook. A copy of the plan may be need to bridge the gap between new Ease of use. Application users need found at: http://www.sc.doe.gov/Sub/ a coherent, cohesive picture of these languages and/or programming models Facilities_for_future/20-Year-Outlook- and next-generation hardware, huge systems—they need to be able to screen.pdf. The plan contains a look at jobs running on 100,000 including interactions with novel prioritized list of new research facilities, processors in a meaningful way. architectures. Consequently, there are a and the number two priority is an • Support for architectural wide variety of research topics that are innovation. Current operating systems UltraScale Scientific Computing appropriate for this effort. A brief listing often limit hardware innovation through Capability (USSCC), which will increase of candidate topics is provided below, the use of a hardware abstraction layer by at least a factor of 100 the computing but research in other relevant areas and that cannot support innovative capability available to support open combinations of areas is encouraged: hardware paradigms. scientific research and which will • Virtualization. A key aspect of OS/ • Dynamic support for multiple reduce from years to days the time R systems is that they provide ‘‘virtual management policies. Current operating required to simulate complex systems of devices.’’ Virtualization must balance systems limit application development interest to the Department. When fully ease of use by detail hiding vs achieving through the use of fixed resource realized, the computing capability of the scalability and performance by management policies rather than USSCC will enable computation-based exploiting details. dynamic policies responsive to scientific advances that are • Adaptation. Traditionally, runtime changing application needs. unachievable by current large-scale and operating systems have been • Leveraging mainstream technology. computing systems. USSCC systems designed to provide a fixed set of Strategies are needed that enable OS/R will place new and critical demands on services and to provide a single systems developed to meet specialized operating systems and runtime implementation for each of these needs of the HEC community to leverage environments to support complex services. Future runtime and operating the talents and technology development applications and enable these systems to systems will need to provide different of the mainstream open source OS reach their full potential. The research sets of services and/or different community. supported by this notice is a critical step implementations of these services based • Support for fault tolerance. Extreme towards developing OS and runtime on the needs of applications and/or scale systems will require innovative systems able to meet these needs. characteristics of the underlying system.

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• Usage models. Large machines have light-weight and low level through the Continuing Solicitation for typically been used in batch mode. communication mechanisms is needed all Office of Science Programs Notice Other modes of operation, including to improve scalability and performance. 04–01, found at: http:// interactive usage for computational www.science.doe.gov/production/ Community Building steering will also need to be supported grants/grants.html, which may have the in the future. An important goal of this notice is to potential for contributing to extreme • Metrics. Metrics, benchmarks, and foster the development of an active scale systems, should so indicate. test suites are needed to evaluate research community in operating progress and guide design. Challenges systems and runtime environments for Collaboration include determining what to measure high end systems. In order to meet this Applicants are encouraged to and how to generate understandable goal the following are mandatory collaborate with researchers in other analyses. Benchmarks and test suites requirements for awardees: institutions, such as universities, must accurately reflect the needs of • All developed code must be industry, non-profit organizations, applications. released under the most permissive federal laboratories and Federally • Support for fault handling in OS open source license possible. This is to Funded Research and Development and run-time. Many jobs will encounter enable other researchers and vendors to Centers (FFRDCs), including the DOE an interrupt in service during their build upon research successes with a National Laboratories, where execution. Research is needed to minimum of intellectual property appropriate, and to include cost sharing address all aspects of fault tolerance, issues. wherever feasible. Additional including fault detection, anticipation, • Each research team should plan to information on collaboration is available management and tolerance. Research in send representatives to annual or semi- in the Application Guide for the Office checkpointing systems is also needed. annual PI meetings and give of Science Financial Assistance Program • Memory hierarchy management. It presentations on the status and promise that is available via the Internet at: is clear that the memory hierarchy is of their research. Meeting attendees will http://www.sc.doe.gov/production/ going to become deeper and/or more include invited participates from other grants/Colab.html. complex. Applications will need relevant research communities, Program Funding significantly improved support for including the Linux community. managing memory. Objectives of these meetings are to foster It is anticipated that up to $3 million • Security. Scalable security a sense of community and serve as a annually will be available for multiple mechanisms are needed to support new venue for exchange of information. awards for this program. Initial awards authorization, authentication and access These meetings will also serve as a will be made late in Fiscal Year 2004 or control requirements. means to exchange information on early Fiscal Year 2005, in the categories • Common API. Research in common complementary programs including the described above, and applications may runtime/OS API’s is required to greatly DARPA HPCS program, NNSA ASC request project support for up to three enhance application portability and ease program and SciDAC. years. All awards are contingent on the the introduction of new systems. The availability of funds and programmatic current POSIX standard has been Frameworks and Novel Approaches needs. Annual budgets for successful beneficial to the general community, but Operating system and runtime projects are expected to range from it is lacking in the support of high-end research often requires a large overhead $500,000 to $1,500,000 per project systems. of supporting infrastructure code, such although smaller projects of exceptional • Scalable, single-system image. In as device drivers, that must be merit may be considered. Annual principle, the ability to treat a very large developed before undertaking the core budgets may increase in the out-years system as a single system has many ideas of the research. This may be but should remain within the overall advantages and provides significant alleviated if an existing OS framework, annual maximum guidance. Any simplifications from an end user such as Linux, K42, or Plan9, is chosen proposed effort that exceeds the annual perspective. However, it is not clear as a base of the research. Applications maximum in the out-years should be what the technical trade-offs are for to this notice may choose to use an separately identified for potential award single system image technology at existing framework for their OS/ increases if additional funds become extreme scale, and additional research is Runtime research or they may propose available. DOE is under no obligation to needed. to develop a new framework as part of pay for any costs associated with the • Parallel and Network I/O. Some the research activity. Any proposed new preparation or submission of classes of future HEC systems will have framework must be described and applications if an award is not made. specialized interconnect fabrics to discussed at the community PI Preapplications provide communications and data meetings. Smaller novel approaches are movement among processors or groups also encouraged. Preapplications are strongly of processors or storage devices. encouraged but not required prior to Operating systems and/or runtime Testbed Strategy submission of a full application. systems will be required to share, Testbeds are essential to the future of However, notification of a successful schedule, and control these resources. the research sponsored by this notice, preapplication is not an indication that • OS Support for efficient and the development of an effective an award will be made in response to interprocessor communication. testbed strategy is an important overall the formal application. The Standard OS’s do not recognize the objective. Each proposal should contain preapplication should identify on the concept of a parallel job. Support is a section which discusses the cover sheet the institution(s), Principal needed for global operations which characteristics of the test environments Investigator name(s), address(es), minimize local variations and avoid necessary for the research and identify telephone, and fax number(s) and E- degradation of performance for the the time frames in which specific mail address(es), and the title of the whole job. testbed support will be required. project. A brief (one-page) vitae should • Light-weight low-level Operating system and runtime be provided for each Principal communication paradigms. Research in applications to the ASCR base programs Investigator. The preapplication should

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consist of a two to three page narrative and related programs in other Federal Department of Transportation & Public describing the research project Agencies or parts of DOE, such as the Facilities, and the U.S. Department of objectives, the approach to be taken, a Advanced Strategic Computing Transportation are required to use the description of any research Initiative (ASCI) within DOE’s National motor vehicle emissions budgets in this partnerships, the duration, and an Nuclear Security Administration. submitted maintenance plan for future annual cost estimate. Information about the development transportation conformity and submission of applications, Merit Review determinations. eligibility, limitations, evaluation, Applications will be subjected to selection process, and other policies and DATES: This finding is effective April 1, scientific merit review (peer review) and procedures including detailed 2004. will be evaluated against the following procedures for submitting applications FOR FURTHER INFORMATION CONTACT: evaluation criteria listed in descending The from multi-institution partnerships may finding will be available at EPA’s order of importance as codified at 10 be found in 10 CFR part 605, and in the conformity Web site: http:// CFR 605.10(d): Application Guide for the Office of www.epa.gov/otaq/transp/conform/ 1. Scientific and/or Technical Merit of Science Financial Assistance Program. adequacy.htm. You may also contact the Project, Electronic access to the Guide and Wayne Elson, U.S. EPA, Region 10 2. Appropriateness of the Proposed required forms is made available via the (OAQ–107), 1200 Sixth Ave, Seattle WA Method or Approach, World Wide Web at: http:// 3. Competency of Applicant’s www.science.doe.gov/production/ 98101; (206) 553–1463 or Personnel and Adequacy of Proposed grants/grants.html. The Project [email protected]. Resources, Description must be 20 pages or less, SUPPLEMENTARY INFORMATION: Today’s 4. Reasonableness and including tables and figures, but notice is simply an announcement of a Appropriateness of the Proposed exclusive of attachments. The Budget. finding that we have already made. EPA application must contain an abstract or Region 10 sent a letter to The Alaska The evaluation of applications under project summary, letters of intent from Department of Environmental item 1, Scientific and Technical Merit, collaborators, and short vitae. Conservation on March 5, 2004, stating will pay particular attention to: The Catalog of Federal Domestic that the motor vehicle emissions Assistance number for this program is (a) The potential of the proposed budgets in the Maintenance Plan for the 81.049, and the solicitation control project to make a significant impact in Serious Carbon Monoxide (CO) number is ERFAP 10 CFR part 605. operating systems and runtime research. Maintenance Area for Anchorage are (b) The demonstrated capabilities of Issued in Washington, DC on March 10, adequate. the applicants to perform basic research 2004. Transportation conformity is required related to operating systems/runtime Martin Rubinstein, by section 176(c) of the Clean Air Act. and transform these research results into Acting Director, Grants and Contracts software that can be widely deployed. Division, Office of Science. EPA’s conformity rule requires (c) The likelihood that the transportation plans, programs, and [FR Doc. 04–5997 Filed 3–16–04; 8:45 am] methodologies and software projects to conform to SIPs and components that result from this effort BILLING CODE 6450–01–P establishes the criteria and procedures will have a substantial impact on the for determining whether or not they do. operating system research and vendor Conformity to a SIP means that ENVIRONMENTAL PROTECTION community outside of the projects. transportation activities will not AGENCY The evaluation under item 2, produce new air quality violations, Appropriateness of the Proposed [AK–04–001; FRL–7637–6] worsen existing violations, or delay Method or Approach, will also consider timely attainment of the national the following elements related to Adequacy Status of the Anchorage, ambient air quality standards. Quality of Planning: Alaska Carbon Monoxide Maintenance Plan for Transportation Conformity The criteria by which we determine (a) Quality of the plan for effective Purposes whether a SIP’s motor vehicle emission coupling of operating system and budget is adequate for conformity runtime research, with application AGENCY: Environmental Protection purposes are outlined in 40 CFR needs and transition to testbed Agency (EPA). 93.118(e)(4). Please note that an environments. ACTION: Notice of adequacy adequacy review is separate from EPA’s (b) Quality and clarity of proposed determination. completeness review. work schedule and deliverables. We have described our process for (c) Quality of the proposed approach SUMMARY: In this action, EPA is determining the adequacy of submitted to intellectual property management notifying the public that we have found SIP budgets in guidance (May 14, 1999 and open source licensing. that the motor vehicle emissions Note that external peer reviewers are budgets in the Anchorage, Alaska memo titled ‘‘Conformity Guidance on selected with regard to both their Serious Carbon Monoxide (CO) Implementation of March 2, 1999 scientific expertise and the absence of Maintenance Plan, submitted by the Conformity Court Decision’’). We conflict-of-interest issues. Non-federal Governor on February 18, 2004, are followed this guidance in making our reviewers may be used, and submission adequate for conformity purposes. On adequacy determination. of an application constitutes agreement March 2, 1999, the D.C. Circuit Court Authority: 42 U.S.C. 7401–7671q. that this is acceptable to the ruled that submitted State Dated: March 8, 2004. investigator(s) and the submitting Implementation Plans (SIPs) cannot be institution. Reviewers will be selected used for conformity determinations L. John Iani, to represent expertise in the technology until EPA has affirmatively found them Regional Administrator, Region 10. areas proposed, applications groups that adequate. As a result of our finding, the [FR Doc. 04–6000 Filed 3–16–04; 8:45 am] are potential users of the technology, Municipality of Anchorage, Alaska BILLING CODE 6560–50–P

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ENVIRONMENTAL PROTECTION Those persons who are or may be 2. Update on multiple restricted entry AGENCY required to conduct testing of chemical intervals. substances under the Federal Food, 3. Telone respirator/OSHA language, [OPP–2004–0069; FRL–7349–2] Drug, and Cosmetic Act (FFDCA), or enforcement of the label requirements. The Association of American Pesticide FIFRA. Since other entities may also be 4. E-Labeling. 5. E-Commerce enforcement. Control Officials/State FIFRA Issues interested, the Agency has not 6. Worker Protection Standard forms Research and Evaluation Group attempted to describe all the specific workgroup. Working Committee on Pesticide entities that may be affected by this action. If you have any questions 7. 24C use for liability, Operations and Management; Notice of indemnification statements. Public Meeting regarding the applicability of this action to a particular entity, consult the person 8. 24C use for sites with section 3 AGENCY: Environmental Protection listed under FOR FURTHER INFORMATION registration. 9. Phosphide fumigant issues. Agency (EPA). CONTACT. 10. POM Working Committee Reports. ACTION: Notice. B. How Can I Get Copies of this 11. Reconciling label directions and SUMMARY: The Association of American Document and Other Related waste requirements. Pesticide Control Officials (AAPCO)/ Information? 12. Metolachlor/S-metolachlor State Federal Insecticide, Fungicide, registration issues. 1. Docket. EPA has established an 13. Endangered species decisions in and Rodenticide Act (FIFRA) Issues official public docket for this action 9th Circuit, implementation affects and Research and Evaluation Group under docket identification (ID) number precedents. (SFIREG) Working Committee on OPP–2004–0069. The official public 14. Endangered species program Pesticide Operations and Management docket consists of the documents implementation status. (WC/POM) will hold a 2–day meeting, specifically referenced in this action, 15. Fipronil on poultry. beginning on April 5, 2004, and ending any public comments received, and 16. Container/Containment Rule and April 6, 2004. This notice announces other information related to this action. implementation issues. the location and times for the meeting Although a part of the official docket, 17. EPA Update/Briefing: and sets forth the tentative agenda the public docket does not include a. Office of Pesticide Programs topics. Confidential Business Information (CBI) update. DATES: The meeting will be held on or other information whose disclosure is b. Office of Enforcement Compliance Monday, April 5, 2004, from 8:30 a.m. restricted by statute. The official public Assurance update. to 5 p.m., and Tuesday, April 6, 2004, docket is the collection of materials that 18. POM Working Committee from 8:30 a.m. to noon. is available for public viewing at the Workgroups issue papers/updates. Public Information and Records ADDRESSES: The meeting will be held at List of Subjects Integrity Branch (PIRIB), Rm. 119, The Edgewater, 2411 Alaskan Way, Pier Environmental protection. 67, Seattle, WA 98121. Telephone Crystal Mall #2, 1921 Jefferson Davis number: (206) 728–7000. Hwy., Arlington, VA. This docket Dated: March 5, 2004. facility is open from 8:30 a.m. to 4 p.m., Jay S. Ellenberger, FOR FURTHER INFORMATION CONTACT: Monday through Friday, excluding legal Georgia A. McDuffie, Field and External Associate Director, Field and External Affairs holidays. The docket telephone number Division, Office of Pesticide Programs. Affairs Division (7506C), Office of is (703) 305–5805. Pesticide Programs, Environmental [FR Doc. 04–6005 Filed 3–16–04; 8:45 am] 2. Electronic access. You may access BILLING CODE 6560–50–S Protection Agency, 1200 Pennsylvania this Federal Register document Ave., NW., Washington, DC 20460– electronically through the EPA Internet 0001; telephone number: (703) 605– under the ‘‘Federal Register’’ listings at ENVIRONMENTAL PROTECTION 0195; fax number: (703) 308–1850; e- http://www.epa.gov/fedrgstr/. mail address: [email protected], AGENCY An electronic version of the public or docket is available through EPA’s [OPP–2004–0062; FRL–7349–6] Philip H. Gray, SFIREG Executive electronic public docket and comment Secretary, P.O. Box 1249, Hardwick, VT Exposure Modeling Work Group; system, EPA Dockets. You may use EPA 05843–1249; telephone number: (802) Notice of Public Meeting Dockets at http://www.epa.gov/edocket 472–6956; fax (802) 472–6957; e-mail to view public comments, access the AGENCY: Environmental Protection address: [email protected]. index listing of the contents of the Agency (EPA). SUPPLEMENTARY INFORMATION: official public docket, and to access ACTION: Notice. I. General Information those documents in the public docket that are available electronically. SUMMARY: The Exposure Modeling Work A. Does this Action Apply to Me? Although not all docket materials may Group (EMWG) will hold a 1–day You may be potentially affected by be available electronically, you may still meeting on April 6, 2004. This notice this action if you are interested in access any of the publicly available announces the location and time for the SFIREG information exchange docket materials through the docket meeting and sets forth the tentative relationship with EPA regarding facility identified in Unit I.B.1. Once in agenda topics. important issues related to human the system, select ‘‘search,’’ then key in DATES: The meeting will be held on health, environmental exposure to the appropriate docket ID number. April 6, 2004, from 9 a.m. to 3 p.m. ADDRESSES: pesticides, and insight into EPA’s II. Tentative Agenda The meeting will be held at decision-making process. All parties are the Office of Pesticide Programs (OPP), invited and encouraged to attend the This unit provides a tentative agenda Environmental Protection Agency, meetings and participate as appropriate. for the meeting. Crystal Mall #2, Room 1126 Fishbowl, Potentially affected entities may 1. Update on Minimum Age Issue 1921 Jefferson Davis Hwy., Arlington, include, but are not limited to: paper and Survey of States. VA 22202.

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FOR FURTHER INFORMATION CONTACT: to view public comments, access the ENVIRONMENTAL PROTECTION James C. Lin, Environmental Fate and index listing of the contents of the AGENCY Effects Division (7507C), Office of official public docket, and to access [OPP–2003–0250; FRL–7318–5] Pesticide Programs, Environmental those documents in the public docket Protection Agency, 1200 Pennsylvania that are available electronically. Notice of Availability of the Preliminary Ave., NW., Washington, DC 20460– Although, not all docket materials may Risk Assessment for Wood 0001; telephone number: (703) 308– be available electronically, you may still Preservatives Containing Arsenic and/ 9591; fax number: (703) 305–6309; e- access any of the publicly available or Chromium Reregistration Eligibility mail address: [email protected]. docket materials through the docket Decision SUPPLEMENTARY INFORMATION: facility identified in Unit I.B.1. Once in the system, select ‘‘search,’’ then key in AGENCY: Environmental Protection I. General Information the appropriate docket ID number. Agency (EPA). ACTION: Notice of availability. A. Does this Action Apply to Me? II. Background This action is directed to the public SUMMARY: This notice announces the in general, and may be of particular On a quarterly interval, the Exposure availability of documents that were interest to those persons who are or may Modeling Workgroup meets to discuss developed as part of EPA’s six-phase be required to conduct testing of current issues in modeling pesticide public participation reregistration chemical substances under the Toxic fate, transport, and exposure to process for wood preservatives Substances Control Act (TSCA), the pesticides in support of risk assessment containing arsenic and/or chromium Federal, Food, Drug, and Cosmetic Act in a regulatory context. (chromium copper arsenate (CCA), (FFDCA), or the Federal Insecticide, III. How Can I Request to Participate in ammoniacal copper zinc arsenate Fungicide, and Rodenticide Act this Meeting? (ACZA), and/or ammoniacal copper (FIFRA). Since other entities may also arsenate (ACA)). Acid copper chromate be interested, the Agency has not You may submit a request to (ACC) is also a wood preservative attempted to describe all the specific participate in this meeting to the person containing arsenic and/or chromium; entities that may be affected by this listed under FOR FURTHER INFORMATION however, it is subject to a voluntary action. If you have any questions CONTACT. cancellation action and is not part of regarding the applicability of this action IV. Tentative Agenda this Reregistration Eligibility Decision. to a particular entity, consult the person These wood preservatives, which are listed under FOR FURTHER INFORMATION 1. Welcome and introductions. inorganic compounds, have been CONTACT. 2. Old action items. registered with EPA since the mid– 1960’s as pesticides for wood 3. Brief updates. B. How Can I Get Copies of this preservation. Presently, 23 products are • Document and Other Related EPA’s Pesticide Root Zone Model/ registered for above and below ground Information? Exposure Analysis Modeling System wood protection treatments as well as in 1. EPA Docket. EPA has established (PRZM/EXAMS) model. marine environments. Wood treated an official public docket for this action • Direct application of herbicides to with these preservatives containing under docket ID number OPP–2004– water bodies. arsenic and/or chromium are specified 0062. The official public docket consists • GW model. for commercial, institutional, and some residential construction uses in indoor of the documents specifically referenced • Drinking Water Treatment and outdoor sites. This notice starts the in this action, any public comments Workshop. 60–day public comment period for the received, and other information related • to this action. Although, a part of the Terrestrial Field Dissipation preliminary risk assessment for the official docket, the public docket does Symposium. wood preservatives containing arsenic not include Confidential Business • Environmental Fate and Effects and/or chromium. EPA will review all Information (CBI) or other information Division (EFED) Water Quality projects. comments received and address them whose disclosure is restricted by statute. 4. Major topics: accordingly. The Agency will then The official public docket is the Morning Session announce and conduct a public collection of materials that is available technical briefing on the revised risk • The Refined Level II Aquatic for public viewing at the Public assessment to provide an opportunity Models for Probabilistic Ecological Information and Records Integrity for the public to learn more about the Assessments of Pesticides. Branch (PIRIB), Rm. 119, Crystal Mall data, information, and methods used to • #2, 1921 Jefferson Davis Hwy., A summary of the Fumigant develop the revised risk assessment. Arlington, VA. This docket facility is Emission Modeling System (FEMS). The revised assessment will then be open from 8:30 a.m. to 4 p.m., Monday Afternoon Session made available to the public, and the through Friday, excluding legal • Introduction and Demonstration public will be invited to submit risk holidays. The docket telephone number of EFED’s Pesticide Fate Data base. management ideas and/or proposals. By is (703) 305–5805. allowing access and opportunity for 2. Electronic access. You may access List of Subjects comments on the preliminary risk assessment, the Agency is seeking to this Federal Register document Environmental protection, Pesticides, strengthen stakeholder involvement and electronically through the EPA Internet Pests, Modeling. under the ‘‘Federal Register’’ listings at help ensure its decisions under the http://www.epa.gov/fedrgstr/. Dated: March 9, 2004. Food Quality Protection Act are An electronic version of the public Steven Bradbury, transparent, and based on the best docket is available through EPA’s Director, Environmental Fate and Effects available information. electronic public docket and comment Division, Office of Pesticides Programs. DATES: Comments, identified by docket system, EPA Dockets. You may use EPA [FR Doc. 04–5878 Filed 3–16–04; 8:45 am] ID number OPP–2003–0250, must be Dockets at http://www.epa.gov/edocket/ BILLING CODE 6560–50–S received on or before May 17, 2004.

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ADDRESSES: Comments may be Monday through Friday, excluding legal EPA’s electronic public docket. The submitted by mail, electronically, or in holidays. The docket telephone number entire printed comment, including the person. Please follow the detailed is (703) 305–5805. copyrighted material, will be available instructions for each method as 2. Electronic access. You may access in the public docket. provided in Unit I. of the this Federal Register document Public comments submitted on SUPPLEMENTARY INFORMATION. To ensure electronically through the EPA Internet computer disks that are mailed or proper receipt by EPA, it is imperative under the ‘‘Federal Register’’ listings at delivered to the docket will be that you identify docket ID number http://www.epa.gov/fedrgstr/. transferred to EPA’s electronic public OPP–2003–0250 in the subject line on An electronic version of the public docket. Public comments that are the first page of your response. docket is available through EPA’s mailed or delivered to the docket will be electronic public docket and comment FOR FURTHER INFORMATION CONTACT: By scanned and placed in EPA’s electronic system, EPA Dockets. You may use EPA mail: Dr. Bonaventure Akinlosotu, public docket. Where practical, physical Dockets at http://www.epa.gov/edocket/ Antimicrobials Division (7510C), Office objects will be photographed, and the to submit or view public comments, of Pesticide Programs Environmental photograph will be placed in EPA’s access the index listing of the contents Protection Agency, 1200 Pennsylvania electronic public docket along with a of the official public docket, and to Avenue, NW., Washington, DC 20460. brief description written by the docket Office location for commercial courier access those documents in the public staff. delivery, telephone number and e-mail docket that are available electronically. Although not all docket materials may C. How and to Whom Do I Submit address: Rm. 308, Crystal Mall #2, 1921 Comments? Jefferson Davis Highway, Arlington, VA be available electronically, you may still You may submit comments 22202, (703) 605–0653; e-mail: access any of the publicly available electronically, by mail, or through hand [email protected]. docket materials through the docket facility identified in Unit I.B.1. Once in delivery/courier. To ensure proper SUPPLEMENTARY INFORMATION: This the system, select ‘‘search,’’ then key in receipt by EPA, identify the appropriate announcement consists of two parts. the appropriate docket ID number. docket ID number in the subject line on The first part contains general Certain types of information will not the first page of your comment. Please information. The second part provides be placed in the EPA Dockets. ensure that your comments are information on what actions the Agency Information claimed as CBI and other submitted within the specified comment intends to take. information whose disclosure is period. Comments received after the I. General Information restricted by statute, which is not close of the comment period will be included in the official public docket, marked ‘‘late.’’ EPA is not required to A. Does this Action Apply to Me? will not be available for public viewing consider these late comments. If you This action is directed to the public in EPA’s electronic public docket. EPA’s wish to submit CBI or information that in general. You may be potentially policy is that copyrighted material will is otherwise protected by statute, please affected by this action if you not be placed in EPA’s electronic public follow the instructions in Unit I.D. Do manufacture, sell, distribute, or use docket but will be available only in not use EPA Dockets or e-mail to submit CCA, ACZA, or ACA products. Since printed, paper form in the official public CBI or information protected by statute. other entities may also be interested, the docket. To the extent feasible, publicly 1. Electronically. If you submit an Agency has not attempted to describe all available docket materials will be made electronic comment as prescribed in this the specific entities that may be affected available in EPA’s electronic public unit, EPA recommends that you include by this action. If you have any questions docket. When a document is selected your name, mailing address, and an e- regarding the applicability of this action from the index list in EPA Dockets, the mail address or other contact to a particular entity, consult the person system will identify whether the information in the body of your listed under FOR FURTHER INFORMATION document is available for viewing in comment. Also include this contact CONTACT. EPA’s electronic public docket. information on the outside of any disk Although not all docket materials may or CD ROM you submit, and in any B. How Can I Get Copies of this be available electronically, you may still cover letter accompanying the disk or Document and Other Related access any of the publicly available CD ROM. This ensures that you can be Information? docket materials through the docket identified as the submitter of the 1. Docket. EPA has established an facility identified in Unit I.B. EPA comment and allows EPA to contact you official public docket for this action intends to work towards providing in case EPA cannot read your comment under docket identification (ID) number electronic access to all of the publicly due to technical difficulties or needs OPP–2003–0250. The official public available docket materials through further information on the substance of docket consists of the documents EPA’s electronic public docket. your comment. EPA’s policy is that EPA specifically referenced in this action, For public commenters, it is will not edit your comment, and any any public comments received, and important to note that EPA’s policy is identifying or contact information other information related to this action. that public comments, whether provided in the body of a comment will Although a part of the official docket, submitted electronically or in paper, be included as part of the comment that the public docket does not include will be made available for public is placed in the official public docket, Confidential Business Information (CBI) viewing in EPA’s electronic public and made available in EPA’s electronic or other information whose disclosure is docket as EPA receives them and public docket. If EPA cannot read your restricted by statute. The official public without change, unless the comment comment due to technical difficulties docket is the collection of materials that contains copyrighted material, CBI, or and cannot contact you for clarification, is available for public viewing at the other information whose disclosure is EPA may not be able to consider your Public Information and Records restricted by statute. When EPA comment. Integrity Branch (PIRIB), Rm. 119, identifies a comment containing i. EPA Dockets. Your use of EPA’s Crystal Mall #2, 1921 Jefferson Davis copyrighted material, EPA will provide electronic public docket to submit Hwy., Arlington, VA. This docket a reference to that material in the comments to EPA electronically is facility is open from 8:30 a.m. to 4 p.m., version of the comment that is placed in EPA’s preferred method for receiving

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comments. Go directly to EPA Dockets CBI). Information so marked will not be limited to issues raised within the at http://www.epa.gov/edocket, and disclosed except in accordance with preliminary risk assessments and follow the online instructions for procedures set forth in 40 CFR part 2. associated documents. EPA will provide submitting comments. Once in the In addition to one complete version of other opportunities for public comment system, select ‘‘search,’’ and then key in the comment that includes any on other science issues associated with docket ID number OPP–2003–0250. The information claimed as CBI, a copy of this reregistration case for the wood system is an ‘‘anonymous access’’ the comment that does not contain the preservatives containing arsenic and/or system, which means EPA will not information claimed as CBI must be chromium. Failure to comment on any know your identity, e-mail address, or submitted for inclusion in the public issues as part of this opportunity will in other contact information unless you docket and EPA’s electronic public no way prejudice or limit a commenter’s provide it in the body of your comment. docket. If you submit the copy that does opportunity to participate fully in later ii. E-mail. Comments may be sent by not contain CBI on disk or CD ROM, notice and comment processes. All e-mail to [email protected], mark the outside of the disk or CD ROM comments should be submitted by May Attention: Docket ID Number OPP– clearly that it does not contain CBI. 17, 2004. 2003–0250. In contrast to EPA’s Information not marked as CBI will be electronic public docket, EPA’s e-mail included in the public docket and EPA’s List of Subjects system is not an ‘‘anonymous access’’ electronic public docket without prior Environmental protection, Acid system. If you send an e-mail comment notice. If you have any questions about copper chromate, Ammoniacal copper directly to the docket without going CBI or the procedures for claiming CBI, arsenate, Ammoniacal copper zinc through EPA’s electronic public docket, please consult the person listed under arsenate, Chemicals, Chromated copper EPA’s e-mail system automatically FOR FURTHER INFORMATION CONTACT. arsenate, Pesticides and pests. captures your e-mail address. E-mail addresses that are automatically E. What Should I Consider as I Prepare Dated: March 9, 2004. captured by EPA’s e-mail system are My Comments for EPA? Frank Sanders, included as part of the comment that is You may find the following Director, Antimicrobials Division, Office of placed in the official public docket, and suggestions helpful for preparing your Pesticide Programs. made available in EPA’s electronic comments: [FR Doc. 04–6007 Filed 3–16–04; 8:45 am] public docket. 1. Explain your views as clearly as BILLING CODE 6560–50–S iii. Disk or CD ROM. You may submit possible. comments on a disk or CD ROM that 2. Describe any assumptions that you you mail to the mailing address used. ENVIRONMENTAL PROTECTION identified in Unit I.C.2. These electronic 3. Provide copies of any technical AGENCY submissions will be accepted in information and/or data you used that [OPP–2004–0012; FRL–7346–8] WordPerfect or ASCII file format. Avoid support your views. the use of special characters and any 4. If you estimate potential burden or Tributyltin Methacrylate and form of encryption. costs, explain how you arrived at the Bis(tributyltin) Oxide; Product 2. By mail. Send your comments to: estimate that you provide. Cancellation Order Public Information and Records 5. Provide specific examples to Integrity Branch (PIRIB) (7502C), Office illustrate your concerns. AGENCY: Environmental Protection of Pesticide Programs (OPP), 6. Make sure to submit your Agency (EPA). Environmental Protection Agency, 1200 comments by the deadline in this ACTION: Notice. Pennsylvania Ave., NW., Washington, notice. DC 20460–0001, Attention: Docket ID 7. To ensure proper receipt by EPA, SUMMARY: In accordance with section Number OPP–2003–0250. be sure to identify the docket ID number 6(f)(1) of the Federal Insecticide, 3. By hand delivery or courier. Deliver assigned to this action in the subject Fungicide and Rodenticide Act (FIFRA), your comments to: Public Information line on the first page of your response. as amended, the Agency is issuing a and Records Integrity Branch (PIRIB), You may also provide the name, date, Cancellation Order announcing its Office of Pesticide Programs (OPP), and Federal Register citation. approval of the voluntary cancellations Environmental Protection Agency, Rm. submitted by Atofina Chemicals, Inc., II. What Action is the Agency Taking? 119, Crystal Mall #2, 1921 Jefferson for certain manufacturing and end-use Davis Hwy., Arlington, VA, Attention: EPA is making available preliminary products containing tributyltin Docket ID Number OPP–2003–0250. risk assessments that have been methacrylate. The Agency is also Such deliveries are only accepted developed as part of EPA’s process for issuing a Cancellation Order during the docket’s normal hours of making reregistration eligibility announcing its approval of the operation as identified in Unit I.B.1. decisions for the wood preservatives amendments requested by Atofina and containing arsenic and/or chromium. Crompton Corporation, to terminate the D. How Should I Submit CBI to the The Agency is providing the use for formulating antifouling paints Agency? opportunity, through this notice, for from certain of their manufacturing-use Do not submit information that you interested parties to provide written products containing bis(tributyltin) consider to be CBI electronically comments and input to the Agency on oxide. These Orders follow a December through EPA’s electronic public docket the preliminary risk assessments for the 5, 2003 Notice of Receipt of requests by or by e-mail. You may claim chemical specified in this notice. Such Atofina Chemicals, Inc. and Crompton information that you submit to EPA as comments and input could address, for Corporation to voluntarily cancel or CBI by marking any part or all of that example, the availability of additional amend to terminate uses of their information as CBI (if you submit CBI data to further refine the risk product registrations as described on disk or CD ROM, mark the outside assessments, or could address the above. As noted in the December 5, of the disk or CD ROM as CBI and then Agency’s risk assessment methodologies 2003 Notice of Receipt, Atofina and identify electronically within the disk or and assumptions as applied to this Crompton requested that they be CD ROM the specific information that is specific chemical. Comments should be allowed to sell the subject products only

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until November 30, 2003. Since that other information related to this action. containing tributyltin methacrylate, and date has passed, no separate existing Although a part of the official docket, the amendments to terminate the use to stocks orders are needed to permit the public docket does not include formulate antifouling paints of two continued sale. The Cancellation Orders Confidential Business Information (CBI) manufacturing-use products containing set forth the applicable terms and or other information whose disclosure is bis(tributyltin) oxide registered under conditions for the affected registrations. restricted by statute. The official public section 3 of FIFRA. The subject Under these Orders, no further docket is the collection of materials that registrations are specifically identified distribution, sale or use of the affected is available for public viewing at the in Tables 1 and 2 below. These requests products by Atofina and Crompton is Public Information and Records were made by Atofina Chemicals, Inc. permitted. Integrity Branch (PIRIB), Room 119, and Crompton Corporation, and were FOR FURTHER INFORMATION CONTACT: Jill Crystal Mall #2, 1921 Jefferson Davis announced in the Federal Register on Bloom; telephone number: (703) 308– Highway, Arlington, VA 22202–4501. December 5, 2003 (68 FR 68039) (FRL– 8019; fax number: (703) 308–8041; e- This docket facility is open from 8:30 7331–1). Atofina and Crompton mail address: [email protected]; a.m. to 4 p.m., Monday through Friday, requested that the Administrator waive address: Special Review and excluding legal holidays. The docket the 180–day comment period provided Reregistration Division (7508C), Office telephone number is (703) 305–5805. under FIFRA section 6(f)(1)(C) for their of Pesticide Programs, Environmental 2. Electronic access. You may access requests. In light of this requested Protection Agency, 1200 Pennsylvania this Federal Register document waiver, EPA provided a 30–day public Avenue, NW., Washington, DC 20460– electronically through the EPA Internet comment period on the voluntary 0001. under the ‘‘Federal Register’’ listings at cancellation and use termination SUPPLEMENTARY INFORMATION: http://www.epa.gov/fedrgstr/. requests. An electronic version of the public I. General Information As part of the December 5, 2003 docket is available through EPA’s Notice, the Agency indicated that it A. Does this Action Apply to Me? electronic public docket and comment would issue Orders granting the system, EPA Dockets. You may use EPA registration amendments and This action is directed to the public Dockets at http://cascade.epa.gov/ in general. Although this action may be _ _ cancellations unless the Agency RightSite/dk public home.htm to received any substantive comment of particular interest to persons who submit or view public comments, access produce or use pesticides, the Agency within the 30–day public comment the index listing of the contents of the period that would merit its further has not attempted to describe all the official public docket and to access specific entities that may be affected by review of these requests. EPA received those documents in the public docket two comments in response to the this action. If you have any questions that are available electronically. regarding the information in this notice, Notice. These comments are discussed Although not all docket materials may in Unit III. of this Notice. The Agency consult the person listed under FOR be available electronically, you may still FURTHER INFORMATION CONTACT. has made note of the concerns access any of the publicly available expressed in the comments, but does B. How Can I Get Copies of This docket materials through the docket not believe the commenters’ intent is to Document and Other Related facility identified in Unit I.B.1. Once in delay the Agency’s granting of the Information? the system, select ‘‘search,’’ then key in subject requests. Likewise, the Agency 1. Docket. EPA has established an the appropriate docket ID number. does not believe the comments provide official public docket for this action II. Background a basis for rejecting the requests. under docket identification (ID) number Accordingly, EPA is issuing Orders in OPP–2003–0291. The official public A. What Action is the Agency Taking? this Notice canceling the nine docket consists of the documents The Agency is approving the registrations identified in Table 1 and specifically referenced in this action, requested cancellations of one end-use amending the two registrations listed in any public comments received and and eight manufacturing-use products Table 2.

TABLE 1.—MANUFACTURING AND END-USE PRODUCT CANCELLATIONS FOR TRIBUTYLTIN METHACRYLATE

Company Name and Address EPA Registration # Product Name Chemical Name Atofina Chemicals, Inc. 5204–63 Biomet 300 Antifouling Agent Tributyltin methacrylate 2000 Market Street Philadelphia, PA 19103– 3222 5204–65 Biomet 302 Antifouling Agent Tributyltin methacrylate 5204–67 Biomet 304 Antifouling Agent Tributyltin methacrylate 5204–80 Biomet 303/60 Antifouling Agent Tributyltin methacrylate 5204–81 Biomet 304/60 Antifouling Agent Tributyltin methacrylate 5204–83 Polyflo 4024 Tributyltin methacrylate 5204–87 Biomet 305 Tributyltin methacrylate 5204–88 Biomet 309 Tributyltin methacrylate 5204–90 Biomet 300/60 Antifouling Agent Tributyltin methacrylate

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Of the registrations listed in Table 1, 2003 notice of receipt of requests to use TBT antifoulant products (as subject Registration number 5204–83 is an end- cancel or terminate a use of the subject to this Notice), the remaining TBT use product, and the remainder are registrations. Both commenters, Arch antifouling paint formulators have a manufacturing-use products. Chemicals, Inc. and Interlux, support finite source for the TBT they use to the cancellation and use terminations manufacture their products. The best TABLE 2.—MANUFACTURING-USE requested by the registrants. information available to the Agency at PRODUCT REGISTRATION AMEND- Arch Chemicals also comments that this time indicates that existing stocks MENTS FOR BIS(TRIBUTYLTIN) OXIDE the existing stocks provisions discussed of the manufacturing-use products in in the December 5, 2003, Notice, which the hands of formulators, and of the EPA proposed to allow the continued formulated products themselves, are Company distribution, sale, and use by dealers limited. Cancellation of the remaining Name and Ad- Reg- Product Name dress istration and users of the Atofina and Crompton registrations for these formulated # products until stocks are exhausted, are products will result in specific existing inconsistent with the Agency’s interest Atofina 5204–1 Biomet stocks provisions for each of them. Chemicals, TBTO in addressing the environmental risks Because the TBT manufacturing-use Inc. associated with the use of such product registrations are canceled, 2000 Market products. Arch Chemicals notes that the registrants of the remaining TBT Street existing stocks provisions also are products have lost the generic data Philadelphia, inconsistent with the January 1, 2003 exemption afforded them when Atofina PA target date for the tributyltin (TBT) ban and Crompton were developing the 19103– in the International Convention on the long-term monitoring data required for 3222 Control of Harmful Anti-Fouling continued registration of TBT Systems on Ships. Based on the shelf- antifouling products. As a result, the Crompton 8898– Eurotin Corpora- 17 TBTO life of the TBT antifouling additives and remaining TBT registrants are obligated tion paints, Arch concludes that the use of to satisfy all outstanding TBT Data Call- 1 American these paints could continue for another In data requirements for which they Way 3 years. Arch Chemicals also comments previously had a generic data Greenwich, that because levels of TBT are already exemption. The Agency is addressing CT 06831 of concern in the aquatic environment, this issue separately from the companies who continue to sell TBT Cancellation Orders for the Atofina and The registrations listed in Table 2 are antifouling paints in the United States Crompton products. amended to terminate the use for should be required to provide For these reasons, the Agency does formulating antifouling paints. The continuous TBT-level monitoring data not believe that the comments cancellations and amendments to until sales cease. submitted during the comment period terminate a use are effective upon the Interlux similarly opposes the existing merit further review or a denial of the date of publication of this document. stocks provisions, and notes that it requests for voluntary cancellation and Any distribution, sale or use of phased-out its TBT antifouling paint use termination. Rather than undertake products identified in Tables 1 and 2 in registrations in anticipation of the ban, to modify the terms of the Cancellation a manner inconsistent with the terms of while some other paint companies Orders for the manufacturing-use the Cancellation Orders (including the chose to continue sales. Interlux notes products announced herein, the Agency provisions dealing with existing stocks that vessels painted with TBT will address the use of existing stocks of described in Unit IV. of this Notice) will antifouling paints after January 1, 2003, the formulated products at the time be considered a violation of section may require repainting with non-TBT their cancellations are requested or 12(a)(2)(K) of FIFRA and/or section systems when the Convention is ratified proposed. 12(a)(1)(A) of FIFRA. or enters into force. Interlux asks the Agency to implement additional IV. Existing Stocks Provisions B. What is the Agency’s Authority for measures to prevent the continued sale For purposes of this Order, the term Taking this Action? and use of TBT antifouling paints for ‘‘existing stocks’’ is defined, pursuant to Pursuant to section 6(f) of FIFRA, EPA what it considers to be an indefinite EPA’s existing stocks policy (56 FR hereby approves the requested period. Both Arch Chemicals and 29362, June 26, 1991), as those stocks of cancellations and amendments to Interlux are concerned about the a registered pesticide product which are terminate a use of the affected continued sale, distribution, and use of currently in the United States and registrations identified in Tables 1 and TBT antifouling paints formulated from which have been packaged, labeled, and 2 of this Notice. Accordingly, the the Atofina and Crompton products. released for shipment prior to the Agency orders that the end-use and The Agency shares the concern that effective date of the cancellation or manufacturing-use product registrations continued use of the TBT antifouling amendment. Any distribution, sale or identified in Table 1 are hereby paints poses risks to the environment use of existing stocks in a manner canceled. The Agency also orders that and potential problems for users, inconsistent with the terms of the the use identified for deletion from the particularly when use could go on for an cancellation Order or the existing stocks manufacturing-use product registrations indefinite period. The Agency will provisions contained in the Order will identified in Table 2 is hereby continue its efforts to negotiate the be considered a violation of section terminated. cancellation of the remaining TBT 12(a)(2)(K) and/or section 12(a)(1)(A) of antifouling paint registrations based on FIFRA. The following summarizes the III. What Comments did the Agency this concern. In the past year, effective dates of cancellation as well as Receive? negotiations have resulted in requests the existing stocks provisions for each The Agency received two comments for voluntary cancellation of the product subject to the cancellation during the 30–day public comment majority of the TBT antifouling Order. period announced in the December 5, registrations. With the cancellations and 1. Canceled registrations (Table 1 in use terminations of the manufacturing- Unit II.) The effective date of

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cancellation is the date of publication of DATES: Unless a request is withdrawn by access those documents in the public this document. As of the date of April 16, 2004, for EPA Registration docket that are available electronically. publication of this document, Atofina Numbers: 264–625 and 264–636, orders Although not all docket materials may may not sell, distribute, or use products will be issued canceling these be available electronically, you may still listed in Table 1. Sale, distribution, or registrations. access any of the publicly available use by persons other than the registrant FOR FURTHER INFORMATION CONTACT: John docket materials through the docket may continue until supplies are W. Pates, Jr., Special Review and facility identified in Unit I.B.1. Once in exhausted. Additionally, sale, Reregistration Division (7508C), Office the system, select ‘‘search,’’ then key in distribution or use of the stocks by of Pesticide Programs, Environmental the appropriate docket ID number. persons other than the registrant in the Protection Agency, 1200 Pennsylvania II. What Action is the Agency Taking? channels of trade may continue until Ave., NW., Washington, DC 20460– depleted, provided any sale, 0001; telephone number: (703) 308– distribution, or use is in accordance This notice announces receipt by the 8195; e-mail address: Agency of an application from Bayer with the existing label of that product. [email protected]. 2. Registrations amended to delete CropScience to cancel two pesticide terminated uses (Table 2 in Unit II.) The SUPPLEMENTARY INFORMATION: products registered under section 3 of FIFRA. The registrant has requested that effective date of the cancellation I. General Information effectuating the use terminations is the EPA waive the 180–day comment date of publication of this document. As A. Does this Action Apply to Me? period. EPA is granting the registrant’s of the date of publication of this This action is directed to the public request to waive the 180–day comment document, Atofina and Crompton may in general. Although this action may be period. EPA anticipates granting the not sell, distribute, or use the products of particular interest to persons who cancellation request shortly after the listed in Table 2 bearing labels allowing produce or use pesticides, the Agency end of the 30–day comment period for the use which is the subject of the use has not attempted to describe all the this notice. Therefore, EPA will provide termination request. Sale, distribution, specific entities that may be affected by a 30–day comment period on the or use of these products bearing labels this action. If you have any questions proposed requests. These registrations allowing the use which is the subject of regarding the information in this notice, are listed by registration number in the use termination request by persons consult the person listed under FOR Table 1 of this unit: other than the registrants may continue FURTHER INFORMATION CONTACT. until supplies are exhausted. TABLE 1.—REGISTRATIONS WITH Additionally, sale, distribution or use of B. How Can I Get Copies of this Document and Other Related PENDING REQUESTS FOR CANCELLA- the stocks with such labels in the TION channels of trade by persons other than Information? the registrant may continue until 1. Docket. EPA has established an Reg- depleted, provided any sale, official public docket for this action Product istration Name Chemical Name distribution or use is in accordance with under docket identification (ID) number No. the existing label of that product. OPP–2004–0048. The official public docket consists of the documents 264–625 Ovasyn Amitraz List of Subjects specifically referenced in this action, Insecticide/ Environmental protection, Pesticides any public comments received, and Miticide and pests. other information related to this action. 264–636 Mitac Amitraz Dated: March 2, 2004. Although a part of the official docket, W Insecti- Debra Edwards, the public docket does not include cide Confidential Business Information (CBI) Director, Special Review and Reregistration Division, Office of Pesticide Programs. or other information whose disclosure is restricted by statute. The official public Unless a request is withdrawn by the [FR Doc. E4–557 Filed 3–16–04; 8:45 a.m.] docket is the collection of materials that registrant within 30 days of publication BILLING CODE 6560–50–S is available for public viewing at the of this notice, orders will be issued Public Information and Records canceling all of these registrations. Integrity Branch (PIRIB), Rm. 119, Users of these pesticides or anyone else ENVIRONMENTAL PROTECTION desiring the retention of a registration AGENCY Crystal Mall #2, 1921 Jefferson Davis Hwy., Arlington, VA. This docket should contact the applicable registrant [OPP–2004–0048; FRL–7348–3] facility is open from 8:30 a.m. to 4 p.m., directly during this 30–day comment Monday through Friday, excluding legal period. Notice of Receipt of Request to holidays. The docket telephone number Table 2 of this unit lists the name and Voluntarily Cancel Certain Pesticide is (703) 305–5805. address of record for the only registrant Registrations for Amitraz 2. Electronic access. You may access of the products in Table 1 of this unit. AGENCY: Environmental Protection this Federal Register document Agency (EPA). electronically through the EPA Internet TABLE 2.—REGISTRANTS REQUESTING ACTION: Notice. under the ‘‘Federal Register’’ listings at VOLUNTARY CANCELLATION http://www.epa.gov/fedrgstr/. SUMMARY: In accordance with section An electronic version of the public EPA 6(f)(1) of the Federal Insecticide, docket is available through EPA’s Com- Company Name and Address Fungicide, and Rodenticide Act electronic public docket and comment pany (FIFRA), as amended, EPA is issuing a system, EPA Dockets. You may use EPA No. notice of receipt of request by Bayer Dockets at http://www.epa.gov/edocket/ 264 Bayer CropScience, 2 T.W. Alex- CropScience to voluntarily cancel to submit or view public comments, ander Drive, Research Triangle certain pesticide registrations access the index listing of the contents Park, NC 27709 containing amitraz. of the official public docket, and to

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III. What is the Agency’s Authority for affected product. Exception to these pesticide manufacturer. Potentially Taking this Action? general rules will be made in specific affected entities may include, but are Section 6(f)(1) of FIFRA provides that cases when more stringent restrictions not limited to: • Crop production (NAICS 111) a registrant of a pesticide product may on sale, distribution, or use of the products or their ingredients have • Animal production (NAICS 112) at any time request that any of its • already been imposed, as in a Special Food manufacturing (NAICS 311) pesticide registrations be canceled. • Pesticide manufacturing (NAICS FIFRA further provides that, before Review action, or where the Agency has identified significant potential risk 32532) acting on the request, EPA must publish This listing is not intended to be a notice of receipt of any such request concerns associated with a particular chemical. exhaustive, but rather provides a guide in the Federal Register. Thereafter, the for readers regarding entities likely to be Administrator may approve such a List of Subjects affected by this action. Other types of request. Environmental protection, Pesticides entities not listed in this unit could also IV. Procedures for Withdrawal of and pests. be affected. The North American Request Industrial Classification System Dated: March 3, 2004. (NAICS) codes have been provided to Registrants who choose to withdraw a Debra Edwards, assist you and others in determining request for cancellation must submit Director, Special Review and Reregistration whether this action might apply to such withdrawal in writing to the Division, Office of Pesticide Programs. certain entities. If you have any person listed under FOR FURTHER [FR Doc. E4–558 Filed 3–16 –04; 8:45 am] questions regarding the applicability of INFORMATION CONTACT , by [insert date 30 BILLING CODE 6560–50–S this action to a particular entity, consult days after date of publication in the the person listed under FOR FURTHER Federal Register]. This written INFORMATION CONTACT. withdrawal of the request for ENVIRONMENTAL PROTECTION cancellation will apply only to the AGENCY B. How Can I Get Copies of this applicable FIFRA section 6(f)(1) request Document and Other Related listed in this notice. If the products have [OPP–2004–0057; FRL–7348–8] Information? been subject to a previous cancellation Aspergillus flavus NRRL 21882; Notice 1. Docket. EPA has established an action, the effective date of cancellation of Filing a Pesticide Petition to official public docket for this action and all other provisions of any earlier Establish a Tolerance for a Certain under docket ID number OPP–2004– cancellation action are controlling. The Microbial Pesticide in or on Food 0057. The official public docket consists withdrawal request must also include a of the documents specifically referenced commitment to pay any reregistration AGENCY: Environmental Protection in this action, any public comments fees due, and to fulfill any applicable Agency (EPA). received, and other information related unsatisfied data requirements. ACTION: Notice. to this action. Although a part of the official docket, the public docket does V. Provisions for Disposition of Existing SUMMARY: This notice announces the Stocks not include Confidential Business initial filing of a pesticide petition Information (CBI) or other information The effective date of cancellation will proposing the establishment of whose disclosure is restricted by statute. be the date of the cancellation order. regulations for residues of a certain The official public docket is the The orders effecting these requested pesticide chemical in or on various food collection of materials that is available cancellations will generally permit a commodities. for public viewing at the Public registrant to sell or distribute existing DATES: Comments, identified by docket Information and Records Integrity stocks for 1 year after the date the identification (ID) number OPP–2004– Branch (PIRIB), Rm. 119, Crystal Mall cancellation order publishes. This 0057, must be received on or before #2, 1921 Jefferson Davis Hwy., policy is in accordance with the April 16, 2004. Arlington, VA. This docket facility is Agency’s Statement of Policy as ADDRESSES: Comments may be open from 8:30 a.m. to 4 p.m., Monday prescribed in the Federal Register of submitted electronically, by mail, or through Friday, excluding legal June 26, 1991 (56 FR 29362) (FRL– through hand delivery/courier. Follow holidays. The docket telephone number 3846–4). Exceptions to this general rule the detailed instructions as provided in is (703) 305–5805. will be made if a product poses a risk Unit I. of the SUPPLEMENTARY 2. Electronic access. You may access concern, or is in noncompliance with INFORMATION. this Federal Register document reregistration requirements, or is subject FOR FURTHER INFORMATION CONTACT: electronically through the EPA Internet to a Data Call-In. In all cases, product- Shanaz Bacchus, Biopesticides and under the ‘‘Federal Register’’ listings at specific disposition dates will be given Pollution Prevention Division (7511C), http://www.epa.gov/fedrgstr/. in the cancellation orders. Office of Pesticide Programs, An electronic version of the public Existing stocks are those stocks of Environmental Protection Agency, 1200 docket is available through EPA’s registered pesticide products which are Pennsylvania Ave., NW., Washington, electronic public docket and comment currently in the United States and DC 20460–0001; telephone number: system, EPA Dockets. You may use EPA which have been packaged, labeled, and (703) 308–8097; e-mail address: Dockets at http://www.epa.gov/edocket/ released for shipment prior to the [email protected]. to submit or view public comments, effective date of the cancellation action. access the index listing of the contents Unless the provisions of an earlier order SUPPLEMENTARY INFORMATION: of the official public docket, and to apply, existing stocks already in the I. General Information access those documents in the public hands of dealers or users can be docket that are available electronically. distributed, sold, or used legally until A. Does this Action Apply to Me? Although not all docket materials may they are exhausted, provided that such You may be potentially affected by be available electronically, you may still further sale and use comply with the this action if you are an agricultural access any of the publicly available EPA-approved label and labeling of the producer, food manufacturer, or docket materials through the docket

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facility identified in Unit I.B.1. Once in delivery/courier. To ensure proper addresses that are automatically the system, select ‘‘search,’’ then key in receipt by EPA, identify the appropriate captured by EPA’s e-mail system are the appropriate docket ID number. docket ID number in the subject line on included as part of the comment that is Certain types of information will not the first page of your comment. Please placed in the official public docket, and be placed in EPA’s Dockets. Information ensure that your comments are made available in EPA’s electronic claimed as CBI and other information submitted within the specified comment public docket. whose disclosure is restricted by statute, period. Comments received after the iii. Disk or CD ROM. You may submit which is not included in the official close of the comment period will be comments on a disk or CD ROM that public docket, will not be available for marked ‘‘late.’’ EPA is not required to you mail to the mailing address public viewing in EPA’s electronic consider these late comments. If you identified in Unit I.C.2. These electronic public docket. EPA’s policy is that wish to submit CBI or information that submissions will be accepted in copyrighted material will not be placed is otherwise protected by statute, please WordPerfect or ASCII file format. Avoid in EPA’s electronic public docket but follow the instructions in Unit I.D. Do the use of special characters and any will be available only in printed, paper not use EPA Dockets or e-mail to submit form of encryption. form in the official public docket. To the CBI or information protected by statute. 2. By mail. Send your comments to: extent feasible, publicly available 1. Electronically. If you submit an Public Information and Records docket materials will be made available electronic comment as prescribed in this Integrity Branch (PIRIB) (7502C), Office in EPA’s electronic public docket. When unit, EPA recommends that you include of Pesticide Programs (OPP), a document is selected from the index your name, mailing address, and an e- Environmental Protection Agency, 1200 list in EPA Dockets, the system will mail address or other contact Pennsylvania Ave., NW., Washington, identify whether the document is information in the body of your DC 20460–0001, Attention: Docket ID available for viewing in EPA’s electronic comment. Also include this contact number OPP–2004–0057. public docket. Although not all docket information on the outside of any disk 3. By hand delivery or courier. Deliver materials may be available or CD ROM you submit, and in any your comments to: Public Information electronically, you may still access any cover letter accompanying the disk or and Records Integrity Branch (PIRIB), of the publicly available docket CD ROM. This ensures that you can be Office of Pesticide Programs (OPP), materials through the docket facility identified as the submitter of the Environmental Protection Agency, Rm. identified in Unit I.B.1. EPA intends to comment and allows EPA to contact you 119, Crystal Mall #2, 1921 Jefferson work towards providing electronic in case EPA cannot read your comment Davis Hwy., Arlington, VA, Attention: access to all of the publicly available due to technical difficulties or needs Docket ID number OPP–2004–0057. docket materials through EPA’s further information on the substance of electronic public docket. your comment. EPA’s policy is that EPA Such deliveries are only accepted For public commenters, it is will not edit your comment, and any during the docket’s normal hours of important to note that EPA’s policy is identifying or contact information operation as identified in Unit I.B.1. that public comments, whether provided in the body of a comment will D. How Should I Submit CBI to the submitted electronically or in paper, be included as part of the comment that Agency? will be made available for public is placed in the official public docket, viewing in EPA’s electronic public and made available in EPA’s electronic Do not submit information that you docket as EPA receives them and public docket. If EPA cannot read your consider to be CBI electronically without change, unless the comment comment due to technical difficulties through EPA’s electronic public docket contains copyrighted material, CBI, or and cannot contact you for clarification, or by e-mail. You may claim other information whose disclosure is EPA may not be able to consider your information that you submit to EPA as restricted by statute. When EPA comment. CBI by marking any part or all of that identifies a comment containing i. EPA Dockets. Your use of EPA’s information as CBI (if you submit CBI copyrighted material, EPA will provide electronic public docket to submit on disk or CD ROM, mark the outside a reference to that material in the comments to EPA electronically is of the disk or CD ROM as CBI and then version of the comment that is placed in EPA’s preferred method for receiving identify electronically within the disk or EPA’s electronic public docket. The comments. Go directly to EPA Dockets CD ROM the specific information that is entire printed comment, including the at http://www.epa.gov/edocket/, and CBI). Information so marked will not be copyrighted material, will be available follow the online instructions for disclosed except in accordance with in the public docket. submitting comments. Once in the procedures set forth in 40 CFR part 2. Public comments submitted on system, select ‘‘search,’’ and then key in In addition to one complete version of computer disks that are mailed or docket ID number OPP–2004–0057. The the comment that includes any delivered to the docket will be system is an ‘‘anonymous access’’ information claimed as CBI, a copy of transferred to EPA’s electronic public system, which means EPA will not the comment that does not contain the docket. Public comments that are know your identity, e-mail address, or information claimed as CBI must be mailed or delivered to the docket will be other contact information unless you submitted for inclusion in the public scanned and placed in EPA’s electronic provide it in the body of your comment. docket and EPA’s electronic public public docket. Where practical, physical ii. E-mail. Comments may be sent by docket. If you submit the copy that does objects will be photographed, and the e-mail to [email protected], not contain CBI on disk or CD ROM, photograph will be placed in EPA’s Attention: Docket ID number OPP– mark the outside of the disk or CD ROM electronic public docket along with a 2004–0057. In contrast to EPA’s clearly that it does not contain CBI. brief description written by the docket electronic public docket, EPA’s e-mail Information not marked as CBI will be staff. system is not an ‘‘anonymous access’’ included in the public docket and EPA’s system. If you send an e-mail comment electronic public docket without prior C. How and to Whom Do I Submit directly to the docket without going notice. If you have any questions about Comments? through EPA’s electronic public docket, CBI or the procedures for claiming CBI, You may submit comments EPA’s e-mail system automatically please consult the person listed under electronically, by mail, or through hand captures your e-mail address. E-mail FOR FURTHER INFORMATION CONTACT.

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E. What Should I Consider as I Prepare the detection and measurement of the planting, using a Gandy box or similar My Comments for EPA? pesticide chemical residues or an device fitted to a tractor. Peanuts are You may find the following explanation of why no such method is harvested approximately 2 to 3 months suggestions helpful for preparing your needed. after the target treatment period. comments: Circle One Global, Inc. B. Product Identity/Chemistry 1. Explain your views as clearly as PP 4F6815 1. Identity of the pesticide and possible. corresponding residues. Aspergillus 2. Describe any assumptions that you EPA has received a pesticide petition, flavus NRRL 21882 is a non-aflatoxin- used. 4F6815, from Circle One Global, Inc., producing strain of Aspergillus flavus 3. Provide copies of any technical One Arthur Street, P.O. Box 28, that was isolated from a peanut seed at information and/or data you used that Shellman, GA 39886–0028, proposing the National Peanut Research support your views. pursuant to section 408(d) of the Federal Laboratory in 1991. This naturally 4. If you estimate potential burden or Food, Drug, and Cosmetic Act (FFDCA), occurring strain acts as a microbial pest costs, explain how you arrived at the 21 U.S.C. 346a(d), to amend 40 CFR part control agent. The corresponding estimate that you provide. 180 to establish an exemption from the residues are Aspergillus flavus NRRL 5. Provide specific examples to requirement of a tolerance for the 21882. The active ingredient is cultured illustrate your concerns. microbial pesticide Aspergillus flavus from spores originally obtained from the 6. Make sure to submit your NRRL 21882 on peanuts. Agricultural Research Service (ARS) comments by the deadline in this Pursuant to section 408(d)(2)(A)(i) of Patent Culture Collection in Peoria, IL. notice. the FFDCA, as amended, Circle One It is cultured on a selective isolation 7. To ensure proper receipt by EPA, Global, Inc., has submitted the following medium and can be identified according be sure to identify the docket ID number summary of information, data, and to the following criteria: Morphological assigned to this action in the subject arguments in support of their pesticide characteristics; pairing nitrate- line on the first page of your response. petition. This summary was prepared by nonutilizing mutants with a tester strain You may also provide the name, date, Circle One Global, Inc., and EPA has not to demonstrate it belongs to a specific and Federal Register citation. fully evaluated the merits of the vegetative compatibility group; and its II. What Action is the Agency Taking? pesticide petition. The summary may inability to produce aflatoxins and/or have been edited by EPA if the cyclopiazonic acid. Cultures of EPA has received a pesticide petition terminology used was unclear, the Aspergillus flavus NRRL 21882 have as follows proposing the establishment summary contained extraneous been analyzed by chloroform or and/or amendment of regulations for material, or the summary chloroform methanol extraction residues of a certain pesticide chemical unintentionally made the reader followed by high-performance liquid in or on various food commodities conclude that the findings reflected chromatography (HPLC). These analyses under section 408 of the Federal Food, EPA’s position and not the position of demonstrated that Aspergillus flavus Drug, and Cosmetic Act (FFDCA), 21 the petitioner. NRRL 21882 does not produce potential U.S.C. 346a. EPA has determined that metabolites of toxicological concern this petition contains data or A. Product Name and Proposed Use Practices such as aflatoxins B1, B2, G1, or G2, information regarding the elements set cyclopiazonic acid, or numerous forth in FFDCA section 408(d)(2); Aspergillus flavus NRRL 21882 is a metabolites reportedly produced by however, EPA has not fully evaluated naturally occurring fungus that does not Aspergillus flavus strains or other fungi. the sufficiency of the submitted data at produce aflatoxin even though it is an Additionally, Aspergillus flavus NRRL this time or whether the data support Aspergillus flavus fungal strain. Its 21882 was tested, following multiple granting of the petition. Additional data application to soil around peanut methodologies, and found to be free of may be needed before EPA rules on the plants, results in significant reductions human pathogens. petition. in aflatoxin contamination of peanuts. 2. Magnitude of residue at the time of List of Subjects The reduction in aflatoxin harvest and method used to determine contamination is a form of biological the residue. Trials have been conducted Environmental protection, control that is achieved by competitive which measure the percent toxic strains Agricultural commodities, Feed exclusion, i.e., the nontoxigenic strain of total Aspergillus flavus found in additives, Food additives, Pesticides applied to the field exclude native, peanuts when the product is used as and pests, Reporting and recordkeeping toxigenic strains from infecting and directed. Typically, the percent toxic requirements. growing in peanuts. This benefit is strains found in the treated peanuts is Dated: March 8, 2004. realized without increasing the overall significantly lower than in the untreated Janet L. Andersen, concentration Aspergillus flavus in the peanuts. In trials conducted in 2000 and Director, Biopesticides and Pollution environment in the long term. Similarly, 2001, the percentage of toxigenic strains Prevention Division, Office of Pesticide the total concentration of Aspergillus was 19.9 and 24.3 for the treated Programs. flavus found in the peanuts is not peanuts, vs. 69.8 and 95.0 for the increased above naturally occurring untreated, control peanuts, respectively. Summary of Petition levels when the product is used as A dilution plating method (Dorner, J.W., The petitioner summary of the directed. Conidia of Aspergillus flavus Journal of AOAC International, Vol. 85, pesticide petition is printed below as NRRL 21882 are coated onto the surface No. 4, 2002, p. 911–916) was used to required by FFDCA section 408(d)(3). of hulled barley and this product is quantify the Aspergillus flavus The summary of the petition was applied to the soil at a proposed use rate colonization of peanuts in these trials. prepared by the petitioner and of 20 pound product/acre for the end These trials also determined that represents the view of the petitioner. use product, Afla-GuardTM (0.002 aflatoxin contamination in peanuts The petition summary announces the pound active ingredient/acre). The treated with Aspergillus flavus NRRL availability of a description of the product is applied once during the 21882 was reduced by 71.3% and 92.8% analytical methods available to EPA for season, typically 40 to 80 days after in 2000 and 2001, respectively.

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3. A statement of why an analytical of 2.35–3.80 x 108 colony forming units spleen, kidneys, and/or connective method for detecting and measuring the (CFU) per rat. In addition, three male tissue in the peritoneal cavity in animal levels of the pesticide residue are not and three female rats were treated with in Group B. No abnormalities were needed. A petition for exemption from autoclaved test material, and three male observed in any animal in Group C. tolerances is being submitted. The data and three female rats were treated with Viable Aspergillus flavus NRRL 21882 indicate that residues of naturally a sterile culture filtrate. The culture was recovered from the majority of occurring Aspergillus flavus filtrate was included to investigate the organs from all Group A rats that died populations on peanuts exist, and that possibility of other toxins being released or were sacrificed on humane grounds the proposed use does not increase the into the agar medium by Aspergillus 5 or 6 days after dosing. Although total level of Aspergillus flavus above flavus NRRL 21882. Animals which numbers of viable Aspergillus flavus naturally occurring levels. Further, the received the viable test material were NRRL 21882 in some liver and spleen composition of the total Aspergillus sequentially sacrificed at intervals samples showed counts of 104 to >105 flavus residues on the peanuts is such throughout the study and subjected to colony forming units/grams (unit of that the percent of the toxigenic strains macroscopic examination. Samples of measure for bacteria) (cfu/g), this was is decreased with use of the product. blood, tissues, intestinal contents, and considered to have resulted from Total levels of fungus on peanuts, faeces were removed for microbiological accumulation of the test organism in therefore, will remain unchanged while determination of test substance these organs and was not attributable to the amount of aflatoxin will be reduced recovery. There were no treatment- an infective proliferation of the test through use of Afla-GuardTM. related effects for any animal receiving organism in these organs. In addition, both the U.S. Food and either the viable test material, the There was no evidence of infectivity Drug Administration (FDA) and the U.S. autoclaved test material, or the sterile by Aspergillus flavus NRRL 21882 in Department of Agriculture (USDA) set culture filtrate. this study. It was concluded that viable regulatory limits for aflatoxin in food. 2. Acute intraperitoneal toxicity/ Aspergillus flavus NRRL 21882 caused a The FDA action level for aflatoxin in pathogenicity study. An initial acute severe inflammatory response in the peanuts and peanut products is 20 parts intraperitoneal toxicity and abdominal cavity of rats leading to per billion (ppb). The USDA has pathogenicity study in the rat resulted death. Rats dosed with inactivated implemented a regulatory program to in all animals receiving viable Aspergillus flavus NRRL 21882 also inspect peanuts for aflatoxin. Under this Aspergillus flavus NRRL 21882 dying or showed an inflammatory response, but program, USDA inspects peanuts being euthanized for humanitarian it was sub-lethal in nature. Because the immediately after harvest (still in shell) reasons. Animals treated with animals dosed with autoclaved test and, using visible Aspergillus flavus as autoclaved test material also showed material also showed adverse effects in a surrogate for aflatoxin, segregates severe adverse effects, although they this study it was hypothesized that this those with visible Aspergillus flavus to were not lethal. In this study, there were could be the result of some interaction a category of peanuts not eligible for three groups of rats. Group A rats were with the Tween 80 or its breakdown human consumption without additional dosed with the test substance. Group B products, or that Aspergillus flavus processing. The USDA sets a maximum rats were dosed with autoclaved test NRRL 21882 produces some toxins. allowable aflatoxin level in peanuts of material. Group C rats were an untreated A second acute intraperitoneal 15 ppb. Thus, a regulatory inspection control group. Group A rats were given toxicity and pathogenicity study of program is already in place that will a single dose by intraperitoneal Aspergillus flavus NRRL 21882 in the assure that any peanuts with visible injection of Aspergillus flavus NRRL rat was conducted. In this study, the levels of Aspergillus flavus NRRL 21882 21882 (5.67–6.75 x 107 viable spores). dosing solution contained only will be segregated and subjected to The test substance was suspended in physiological saline (no Tween 80), and further conditioning, should that be sterile physiological saline with 0.1% another control group of rats was added. necessary. Tween 80. Group B rats similarly The latter group received sterile culture The potential residues of Aspergillus received a single dose by intraperitoneal filtrate to evaluate the possibility of flavus NRRL 21882 on peanut hay are injection, but the test solution was endotoxin release by Aspergillus flavus not expected to be any different than autoclaved so the Aspergillus flavus NRRL 21882. Groups of rats (15 male those which occur naturally and NRRL 21882 was not viable. All animals and 15 female) were given a single dose generally are low because peanut hay is from Group A died or were sacrificed by intraperitoneal injection of not a good substrate for fungal growth. due to clinical signs on day 5 or 6. Aspergillus flavus NRRL 21882 (1.12– FDA also sets aflatoxin action levels for Surviving animals were sacrificed on 1.47 x 107 viable spores/rat). Surviving peanut products used as animal feed. day 22 and subjected to macroscopic animals were sacrificed on day 22 and These action levels range from 20 ppb examination. subjected to macroscopic examination. for dairy and immature animals to 300 Samples of blood, tissues, intestinal Samples of blood, tissues, intestinal ppb for finishing (i.e., feedlot) beef contents, and faeces were removed for contents and faeces were removed for cattle. microbiological determination of test microbiological determination of test Because use of Afla-GuardTM will not substance recovery. All surviving substance recovery. The animals increase total Aspergillus flavus levels animals were considered to have receiving viable test material were given above background, naturally occurring achieved satisfactory body weight gains group numbers 1 through 5, with levels, the establishment of a tolerance throughout the study. There were no designated sacrifice days of 1, 4, 8, 15, and an analytical method to measure the differences from controls which were and 22. The group that received pesticide residues are not needed. considered attributable to treatment. No autoclaved material consisted of two trends indicative of pyrogenic response males and two females. The sterile C. Mammalian Toxicological Profile to treatment were seen in any of the culture filtrate group consisted of three 1. Acute oral toxicity/pathogenicity treated groups receiving active or males and three females. There was only study. An acute oral toxicity study was inactivated test material in comparison one unscheduled death in the study and performed in which 12 male and 12 with the controls or pre-dose values. it was not treatment-related. In female rats were treated with Macroscopic examination at study surviving animals, only two showed any Aspergillus flavus NRRL 21882 at a dose termination revealed nodules on the clinical signs. One male showed

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abnormal posture characterized by head clinical signs that were considered to be in this case, is a long sleeved shirt, long tilting to the left on days 9 to 22 (to associated with the test substance. All pants, shoes, socks, and gloves. study termination) and circling to the surviving animals were considered to iii. At the proposed use rate of 20 left from days 11 to 14; and one female have achieved satisfactory body weight pound/acre, the equivalent amount of showed abnormal posture characterized gains throughout the study. active ingredient applied is only 0.002 by head tilting to the right from day 16 There were no differences from pound/acre. Thus, exposure to to day 22 (to study termination). These controls which were considered to be Aspergillus flavus NRRL 21882 is not clinical signs are considered to be more attributable to the treatment. No trends likely to exceed the naturally occurring, likely than not treatment-related, but indicative of pyrogenic response to ubiquitous Aspergillus flavus in the only affected 2 of the 30 animals treated treatment were seen in any of the environment. with viable test material. No clinical treated groups receiving active or iv. No eye irritation effects have been signs considered related to treatment inactivated test material in comparison reported during the several years of were observed in any animal from either with the controls or pre-dose values. No experimentation and field trials the autoclaved test substance or sterile abnormalities were observed in any of conducted by the USDA researchers. culture filtrate groups. the terminal animals at the macroscopic D. Aggregate Exposure The results of the second study were examination at termination. Substantial dramatically different from those of the numbers of viable Aspergillus flavus 1. Dietary exposure—i. Food. first. Adverse clinical effects were seen NRRL 21882 were recovered from the Aspergillus flavus NRRL 21882 is a only in one male and one female, both lungs of the majority of treated rats naturally occurring organism that does of whom survived through study sacrificed early in the study period. As not produce aflatoxins and thus is safer termination. Recovery of viable test the study progressed it was evident, than toxigenic Aspergillus flavus material at sacrifice demonstrated from the counts of viable Aspergillus isolates. At the proposed use rate, the clearance of the test material. No flavus NRRL 21882 obtained from the total population of Aspergillus flavus on Aspergillus flavus NRRL 21882 was lungs of treated rats, that Aspergillus the crop will not increase beyond found in blood at any time period and flavus NRRL 21882 rapidly lost viability naturally occurring background levels. on day 22 no viable test material was following intra-tracheal dosing into rats. Total levels of fungus on peanuts, recovered from any organ or from the Some clearance of Aspergillus flavus therefore, will remain unchanged while gastrointestinal tract (GI). The addition NRRL 21882 from the lungs of treated the amount of aflatoxin will be reduced of the sterile culture filtrate rats by the pulmonary muco-ciliary through use of Afla-GuardTM. In demonstrated that Aspergillus flavus escalator system was evident from the addition, USDA inspection procedures NRRL 21882 did not generate recovery of viable Aspergillus flavus for peanuts identify peanuts with visible endotoxins. Based on results from the NRRL 21882 from faecal contents and Aspergillus flavus contamination and second study, it can be concluded that faeces. At no point over the study remove these from the food supply. the most likely explanation for the period did any substantial increase in USDA has implemented these adverse effects in the first study was the viable counts occur that may have been procedures for decades to manage presence of the surfactant, Tween 80, indicative of a proliferation of aflatoxin levels in peanuts (historically and not any toxicity due to Aspergillus Aspergillus flavus NRRL 21882 within using visible Aspergillus flavus as a flavus NRRL 21882. Further, the results treated rats. It was concluded the surrogate for aflatoxin). USDA from the sterile filtrate group indicate Aspergillus flavus NRRL 21882 showed procedures keep levels of aflatoxin in that no endotoxins are produced by no evidence of toxicity or pathogenicity peanuts and processed peanut products Aspergillus flavus NRRL 21882 and to rats following a single intratracheal below USDA and FDA action levels. therefore these could not have been the administration. Also, subsequent processing steps in the cause of the adverse effects seen in the Based on these studies the petitioner production of peanut products such as first I.P. study. concludes that Aspergillus flavus NRRL peanut butter and peanut oil will kill 3. Acute pulmonary toxicity/ 21882 does not present either a the fungus. Consequently, dietary pathogenicity study. The acute toxicological or infectious risk to exposure to Aspergillus flavus NRRL pulmonary toxicity/pathogenicity of mammals. 21882 is expected to be quite low. The Aspergillus flavus NRRL 21882 in the 4. Data waiver requests. Data waivers residues on peanut hay are not expected rat was assessed. Groups of rats were were requested for the following to be different in the treated fields than given a single dose by intratracheal toxicology studies: acute dermal in untreated fields because hay is not a instillation of the test substance (4.6–6.9 toxicity/pathogenicity, primary dermal good substrate for fungal growth. x 107 viable spores) suspended in sterile irritation, primary eye irritation, and ii. Drinking water. The use of physiological saline containing 0.1% immune response. The rationales for the Aspergillus flavus NRRL 21882 is not Tween 80. Animals were sequentially waiver requests are: likely to increase the natural sacrificed at intervals throughout the i. The active ingredient occurs concentration of Aspergillus flavus in study and subjected to a macroscopic naturally in the environment. water bodies and is not considered to be examination. Samples of blood, tissues, ii. USDA researchers have been a risk to drinking water. Although the intestinal contents, and faeces were handling the product in lab and in field soil concentrations of Aspergillus flavus removed for microbiological settings for many years without reports NRRL 21882 will increase immediately determination of the test substance of adverse effects, even though some after application, as expected, to recovery. One female in Group C was fungi in the genus Aspergillus flavus are displace the toxigenic strain, this effect found dead on day 2. Macroscopic known dermal sensitizers. The is temporary. examination of this one animal revealed formulation is granular, is ground 2. Non-dietary exposure. The congestion (characterized by blood applied, and is used only once per proposed use site is limited to the vessels injected) of the brain with season which limits exposure and thus agricultural crop peanuts. The product enlarged, swollen thickened tissues and any potential adverse dermal effects. is applied as a granular formulation, patchy areas of darkened and pale tissue Any potential dermal irritation can be using a Gandy box or similar device in the lungs. Fluid contents were noted adequately mitigated with appropriate fitted to a tractor. Uptake in moisture by along the intestinal tract. There were no personal protective equipment, which, the granules results in growth of the

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Aspergillus flavus NRRL 21882 in the H. Existing Tolerances entities not listed in this unit could also soil. Migration of the Aspergillus flavus There are no existing tolerances for be affected. North American Industrial out of the treated fields is not expected. Aspergillus flavus NRRL 21882. Classification System (NAICS) codes Therefore, there will be no non- shave been provided to assist you and occupational, non-dietary exposure to I. International Tolerances others in determining whether this the general population. There are no Codex maximum residue action might apply to certain entities. If you have any questions regarding the E. Cumulative Exposure levels for Aspergillus flavus NRRL 21882. applicability of this action to a There are no other registered products [FR Doc. 04–6002 Filed 3–16–04; 8:45 am] particular entity, consult the person containing Aspergillus flavus NRRL listed under FOR FURTHER INFORMATION BILLING CODE 6560–50–S 21882. Another strain, Aspergillus CONTACT. flavus AF 36, is conditionally registered for cotton in Arizona and Texas, but is B. How Can I Get Copies of this ENVIRONMENTAL PROTECTION not registered for use on peanuts. Document and Other Related AGENCY Peanuts are grown in several states, Information? chiefly in the South. [OPP–2004–0034; FRL–7345–2] 1. Docket. EPA has established an official public docket for this action F. Safety Determination Indoxacarb; Notice of Filing a Pesticide under docket ID number OPP–2004– 1. U.S. population. Aspergillus flavus Petition to Establish a Tolerance for a 0034. The official public docket consists NRRL 21882 is a naturally occurring Certain Pesticide Chemical in or on of the documents specifically referenced organism. The long-term population of Food in this action, any public comments Aspergillus flavus in the environment is received, and other information related AGENCY: not increased either in the environment Environmental Protection Agency (EPA). to this action. Although, a part of the or in the crop. Thus, there is a official docket, the public docket does reasonable certainty that no harm will ACTION: Notice. not include Confidential Business result from the use of this product. In SUMMARY: This notice announces the Information (CBI) or other information addition, there is the benefit of reduced initial filing of a pesticide petition whose disclosure is restricted by statute. aflatoxin production. proposing the establishment of The official public docket is the 2. Infants and children. Aspergillus regulations for residues of a certain collection of materials that is available flavus NRRL 21882 is a naturally pesticide chemical in or on various food for public viewing at the Public occurring organism that does not commodities. Information and Records Integrity produce aflatoxins and thus is safer than Branch (PIRIB), Rm. 119, Crystal Mall DATES: toxigenic Aspergillus flavus isolates. At Comments, identified by docket #2, 1921 Jefferson Davis Hwy., the proposed use rate, the total ID number OPP–2004–0034, must be Arlington, VA. This docket facility is population of Aspergillus flavus on the received on or before April 16, 2004. open from 8:30 a.m. to 4 p.m., Monday crop will not increase beyond naturally ADDRESSES: Comments may be through Friday, excluding legal occurring background levels. Total submitted electronically, by mail, or holidays. The docket telephone number levels of fungus on peanuts, therefore, through hand delivery/courier. Follow is (703) 305–5805. will remain unchanged while the the detailed instructions as provided in 2. Electronic access. You may access amount of aflatoxin will be reduced Unit I. of the SUPPLEMENTARY this Federal Register document through use of Afla-GuardTM. In INFORMATION. electronically through the EPA Internet addition, USDA inspection procedures FOR FURTHER INFORMATION CONTACT: Rita under the ‘‘Federal Register’’ listings at removes visible Aspergillus flavus from Kumar, Registration Division (7505C), http://www.epa.gov/fedrgstr/. the food supply and food processing Office of Pesticide Programs, An electronic version of the public steps to produce peanut products such Environmental Protection Agency, 1200 docket is available through EPA’s as peanut butter and peanut oil kill the Pennsylvania Ave., NW., Washington, electronic public docket and comment fungus. Finally, toxicity studies DC 20460–0001; telephone number: system, EPA Dockets. You may use EPA completed on Aspergillus flavus NRRL (703) 308–8291; e-mail address: Dockets at http://www.epa.gov/edocket/ 21882 do not raise risk concerns. Based [email protected]. to submit or view public comments, on its lack of toxicity and the natural access the index listing of the contents SUPPLEMENTARY INFORMATION: occurrence of Aspergillus flavus NRRL of the official public docket, and to 21882, there is a reasonable certainty I. General Information access those documents in the public that no harm will result to infants and docket that are available electronically. children from exposure to potential A. Does this Action Apply to Me? Although, not all docket materials may residues. The reduction in aflatoxin You may be potentially affected by be available electronically, you may still resulting from the use of this product this action if you are an agricultural access any of the publicly available will be a significant benefit to children’s producer, food manufacturer, or docket materials through the docket health. pesticide manufacturer. Potentially facility identified in Unit I.B.1. Once in affected entities may include, but are the system, select ‘‘search,’’ then key in G. Effects on the Immune and Endocrine not limited to: the appropriate docket ID number. Systems • Crop production (NAICS 111) Certain types of information will not Aspergillus flavus NRRL 21882 is a • Animal production (NAICS 112) be placed in the EPA Dockets. naturally occurring organism which • Food manufacturing (NAICS 311) Information claimed as CBI and other does not produce aflatoxin and is thus • Pesticide manufacturing (NAICS information whose disclosure is safer than Aspergillus flavus isolates 32532) restricted by statute, which is not producing aflatoxins. There are no This listing is not intended to be included in the official public docket, reliable data to suggest that Aspergillus exhaustive, but rather provide a guide will not be available for public viewing flavus NRRL 21882 affects the immune for readers regarding entities likely to be in EPA’s electronic public docket. EPA’s or endocrine systems. affected by this action. Other types of policy is that copyrighted material will

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not be placed in EPA’s electronic public follow the instructions in Unit I.D. Do the use of special characters and any docket but will be available only in not use EPA Dockets or e-mail to submit form of encryption. printed, paper form in the official public CBI or information protected by statute. 2. By mail. Send your comments to: docket. To the extent feasible, publicly 1. Electronically. If you submit an Public Information and Records available docket materials will be made electronic comment as prescribed in this Integrity Branch (PIRIB) (7502C), Office available in EPA’s electronic public unit, EPA recommends that you include of Pesticide Programs (OPP), docket. When a document is selected your name, mailing address, and an e- Environmental Protection Agency, 1200 from the index list in EPA Dockets, the mail address or other contact Pennsylvania Ave., NW., Washington, system will identify whether the information in the body of your DC 20460–0001, Attention: Docket ID document is available for viewing in comment. Also, include this contact number OPP–2004–0034. EPA’s electronic public docket. information on the outside of any disk 3. By hand delivery or courier. Deliver Although, not all docket materials may or CD ROM you submit, and in any your comments to: Public Information be available electronically, you may still cover letter accompanying the disk or and Records Integrity Branch (PIRIB), access any of the publicly available CD ROM. This ensures that you can be Office of Pesticide Programs (OPP), docket materials through the docket identified as the submitter of the Environmental Protection Agency, Rm. facility identified in Unit I.B. EPA comment and allows EPA to contact you 119, Crystal Mall #2, 1921 Jefferson intends to work towards providing in case EPA cannot read your comment Davis Hwy., Arlington, VA, Attention: electronic access to all of the publicly due to technical difficulties or needs Docket ID number OPP–2004–0034. available docket materials through further information on the substance of Such deliveries are only accepted EPA’s electronic public docket. your comment. EPA’s policy is that EPA during the docket’s normal hours of For public commenters, it is will not edit your comment, and any operation as identified in Unit I.B.1. important to note that EPA’s policy is identifying or contact information that public comments, whether provided in the body of a comment will D. How Should I Submit CBI to the submitted electronically or on paper, be included as part of the comment that Agency? will be made available for public is placed in the official public docket, Do not submit information that you viewing in EPA’s electronic public and made available in EPA’s electronic consider to be CBI electronically docket as EPA receives them and public docket. If EPA cannot read your through EPA’s electronic public docket without change, unless the comment comment due to technical difficulties or by e-mail. You may claim contains copyrighted material, CBI, or and cannot contact you for clarification, information that you submit to EPA as other information whose disclosure is EPA may not be able to consider your CBI by marking any part or all of that restricted by statute. When EPA comment. information as CBI (if you submit CBI identifies a comment containing i. EPA Dockets. Your use of EPA’s on disk or CD ROM, mark the outside copyrighted material, EPA will provide electronic public docket to submit of the disk or CD ROM as CBI and then a reference to that material in the comments to EPA electronically is identify electronically within the disk or version of the comment that is placed in EPA’s preferred method for receiving CD ROM the specific information that is EPA’s electronic public docket. The comments. Go directly to EPA Dockets CBI). Information so marked will not be entire printed comment, including the at http://www.epa.gov/edocket/, and disclosed except in accordance with copyrighted material, will be available follow the online instructions for procedures set forth in 40 CFR part 2. in the public docket. submitting comments. Once in the In addition to one complete version of Public comments submitted on system, select ‘‘search,’’ then key in the comment that includes any computer disks that are mailed or docket ID number OPP–2004–0034. The information claimed as CBI, a copy of delivered to the docket will be system is an ‘‘anonymous access’’ the comment that does not contain the transferred to EPA’s electronic public system, which means EPA will not information claimed as CBI must be docket. Public comments that are know your identity, e-mail address, or submitted for inclusion in the public mailed or delivered to the docket will be other contact information unless you docket and EPA’s electronic public scanned and placed in EPA’s electronic provide it in the body of your comment. docket. If you submit the copy that does public docket. Where practical, physical ii. E-mail. Comments may be sent by not contain CBI on disk or CD ROM, objects will be photographed, and the e-mail to [email protected], mark the outside of the disk or CD ROM photograph will be placed in EPA’s Attention: Docket ID number OPP– clearly that it does not contain CBI. electronic public docket along with a 2004–0034. In contrast to EPA’s Information not marked as CBI will be brief description written by the docket electronic public docket, EPA’s e-mail included in the public docket and EPA’s staff. system is not an ‘‘anonymous access’’ electronic public docket without prior system. If you send an e-mail comment notice. If you have any questions about C. How and to Whom Do I Submit directly to the docket without going Comments? CBI or the procedures for claiming CBI, through EPA’s electronic public docket, please consult the person listed under You may submit comments EPA’s e-mail system automatically FOR FURTHER INFORMATION CONTACT. electronically, by mail, or through hand captures your e-mail address. E-mail delivery/courier. To ensure proper addresses that are automatically E. What Should I Consider as I Prepare receipt by EPA, identify the appropriate captured by EPA’s e-mail system are My Comments for EPA? docket ID number in the subject line on included as part of the comment that is You may find the following the first page of your comment. Please placed in the official public docket, and suggestions helpful for preparing your ensure that your comments are made available in EPA’s electronic comments: submitted within the specified comment public docket. 1. Explain your views as clearly as period. Comments received after the iii. Disk or CD ROM. You may submit possible. close of the comment period will be comments on a disk or CD ROM that 2. Describe any assumptions that you marked ‘‘late.’’ EPA is not required to you mail to the mailing address used. consider these late comments. If you identified in Unit I.C.2. These electronic 3. Provide copies of any technical wish to submit CBI or information that submissions will be accepted in information and/or data you used that is otherwise protected by statute, please WordPerfect or ASCII file format. Avoid support your views.

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4. If you estimate potential burden or Nemours and Company, DuPont Crop KN128) basis. The proposed tolerance costs, explain how you arrived at the Protection, Wilmington, DE, proposing expression includes both indoxacarb estimate that you provide. pursuant to section 408(d) of the Federal (DPX-KN128) and IN-KN127 and the 5. Provide specific examples to Food, Drug, and Cosmetic Act, 21 U.S.C. residue method does not distinguish illustrate your concerns. 346a(d), to amend 40 CFR part 180 by between the enantiomers; therefore, 6. Make sure to submit your establishing a temporary tolerance for residues are reported as the sum of comments by the deadline in this combined residues of indoxacarb, [(S)- indoxacarb (DPX-KN128) combined notice. methyl 7-chloro-2,5-dihydro-2- 7. To ensure proper receipt by EPA, with IN-KN127. Residues of indoxacarb [[(methoxycarbonyl)[4- (DPX-KN128)combined with IN-KN127 be sure to identify the docket ID number (trifluoromethoxy)phenyl] will be referred to as ‘‘KN128/KN127.’’ assigned to this action in the subject amino]carbonyl]indeno line on the first page of your response. [1,2e][1,3,4]oxadiazine-4a(3H)- 1. Plant metabolism. The metabolism You may also provide the name, date, carboxylate] and its R-enantiomer (R)- of indoxacarb in plants is adequately and Federal Register citation. methyl 7-chloro-2,5-dihydro-2- understood to support these tolerances. II. What Action is the Agency Taking? [[(methoxycarbonyl)[4- Plant metabolism studies in cotton, (trifluoromethoxy) lettuce, and tomatoes showed no EPA has received a pesticide petition phenyl]amino]carbonyl]indeno [1,2-e] significant metabolites. The only as follows proposing the establishment [1,3,4] oxadiazine-4a(3H)-carboxylate] significant residue was parent and/or amendment of regulations for in a 75:25 mixture (DPX MP062), compound. residues of a certain pesticide chemical respectively, in or on the raw 2. Analytical method. The plant in or on various food commodities agricultural commodity as follows: residue enforcement method detects and under section 408 of the Federal Food, cherry, sweet, 1 part per million (ppm) Drug, and Cosmetic Act (FFDCA), 21 and cherry, tart, 1 ppm. An analytical quantitates indoxacarb in various U.S.C. 346a. EPA has determined that enforcement method (LC-UV) is matrices including sweet corn, lettuce, this petition contains data or available for determining plant residues. tomato, broccoli, apple, grape, information regarding the elements set EPA has determined that the petition cottonseed, tomato, peanut and soybean forth in FFDCA section 408(d)(2); contains data or information regarding commodity samples by high however, EPA has not fully evaluated the elements set forth in section performance liquid chromotography the sufficiency of the submitted data at 408(d)(2) of the FFDCA; however, EPA using ultra-violet detection (HPLC-UV). this time or whether the data support has not fully evaluated the sufficiency The limit of quantitation in the method granting of the petition. Additional data of the submitted data at this time or allows monitoring of crops with may be needed before EPA rules on the whether the data support granting of the indoxacarb residues at or above the petition. petition. Additional data may be needed levels proposed in these tolerances. List of Subjects before EPA rules on the petition. This 3. Magnitude of residues. Cherries IR- action is in response to university Environmental protection, 4 with the support from DuPont has extension specialists, IR-4 and DuPont Agricultural commodities, Feed conducted magnitude of residue trials in additives, Food additives, Pesticides Crop Protection’s combined efforts to generate the information necessary for tart cherry for an additional crop use for and pests, Reporting and recordkeeping DuPont Avaunt insecticide (indoxacarb requirements. use of the reduced risk pesticide, indoxacarb, on cherries for the control 30WG). An initial seven field trials have Dated:February 27, 2004. of plum curculio. This proposed been conducted, making four Lois Rossi, temporary tolerance supports an applications at 7 (+ 1) day intervals with Director, Registration Division, Office of Experimental Use Permit (EUP) under the last application 14 (+ 2) days before Pesticide Programs. section 5 of the Federal Insecticide, harvest. Summary of Petition Fungicide,and Rodenticide Act (FIFRA) Two test plots were established at authorizing use of indoxacarb on The petitioner’s summary of the each test site. One plot was untreated cherries in the state of Michigan. This and provided control samples for pesticide petition is printed below as regulation proposes to establish a required by FFDCA section 408(d)(3). analysis. The treated plot received four maximum permissible level for residues The summary of the petition was foliar applications of Avaunt at the of indoxacarb in this food commodity prepared by E. I. DuPont de Nemours maximum expected label use rate of pursuant to section 408(e) of FFDCA, as and Company, and represents the view 0.11 lb a.i./A/Application (6 oz. amended by FQPA. of the petitioner. The petition summary product/A). All application rates were announces the availability of a A. Residue Chemistry within ±5% of the target rate. Maximum description of the analytical methods The active ingredient in the end-use residues of KN128/KN127 in individual available to EPA for the detection and formulation, Avaunt, is a 75:25 mixture duplicate samples were 0.635 ppm at a measurement of the pesticide chemical of two isomers, indoxacarb (DPX- pre-harvest interval (PHI) of 14 days residues or an explanation of why no KN128) and IN-KN127. Only one of the (range 0.005 0.635 ppm). such method is needed. isomers, indoxacarb (DPX-KN128), has B. Toxicological Profile E. I. DuPont de Nemours and Company insecticidal activity. Since the insecticidal efficacy is based on the 1. Acute toxicity. Based on EPA PP 3G6797 concentration of indoxacarb (DPX- criteria, indoxacarb is classified as EPA has received a pesticide petition KN128), the application rates have been follows for Toxicity Categories: (PP 3G6797) from E. I. DuPont de normalized on an indoxacarb (DPX-

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Guideline Title Results Category

870.1100 Acute Oral Toxicity LD50: 1,730 milligrams/kilogram (mg/kg) Category II (male rat) LD50: 268 mg/kg (female rat)

870.1200 Acute Dermal Toxicity LD50: >5,000 mg/kg (rat) Category IV

870.1300 Acute Inhalation Toxicity LC50: >5.5 milligrams/liter (mg/L) (male rat) Category IV (70% MUP)

870.2400 Primary Eye Irritation Effects reversed within 72 hours (rabbit) Category III

870.2500 Primary Dermal Irritation No irritation (rabbit) Category IV

870.2600 Skin Sensitization Sensitizer (guinea pig) ------

Formulated products are slightly less evaluate developmental toxicity bodies and decreased body weight, acutely toxic than indoxacarb. potential, indoxacarb was neither weight gain, food consumption, food In an acute neurotoxicity study, teratogenic nor uniquely toxic to the efficiency; and increased clinical signs indoxacarb exhibited decreased conceptus (i.e., not considered a (leaning to one side and/or with forelimb grip strength, decreased foot developmental toxin). Developmental abnormal gait or mobility) (females splay, and some evidence of slightly studies conducted in rats and rabbits only). In a 28–day repeated dose dermal reduced motor activity, but only at the demonstrated that the rat was more study, the NOAEL was 50 mg/kg/day highest doses tested. The no observed susceptible than the rabbit to the based on decreased body weights, body adverse effect level (NOAEL) was 100 maternal and fetal effects of DPX- weight gains, food consumption, and mg/kg for males and 12.5 mg/kg for MP062. Developmental toxicity was food efficiency in females, and changes females based on body weight effects in observed only in the presence of in hematology parameters, the spleen females ≥50 mg/kg. maternal toxicity. The NOAEL for and clinical signs of toxicity in both 2. Genotoxicty. Indoxacarb has shown maternal and fetal effects in rats was 2 sexes in rats. no genotoxic activity in the following mg/kg/day based on body weight effects 5. Chronic toxicity. Chronic studies listed in-vitro and in-vivo tests: and decreased food consumption at 4 with indoxacarb were conducted on i. Ames--Negative. mg/kg/day. The NOAEL for rats, mice, and dogs to determine ii. In-vitro mammalian gene mutation developmental effects in fetuses was >4 oncogenic potential and/or chronic Chinese hampster ovary/hypoxanthine mg/kg/day. In rabbits, the maternal and toxicity of the compound. Effects guanine phophoribopsyl transferase fetal NOAELs were 500 mg/kg/day generally similar to those observed in (CHO/HGPRT)--Negative. based on body weight effects, decreased the 90–day studies were seen in the iii. In-vitro unscheduled DNA food consumption in dams and chronic studies. Indoxacarb was not synthesis--Negative. decreased weight and delayed oncogenic in rats or mice. The chronic iv. In-vitro chromosomal aberration-- ossification in fetuses at 1,000 mg/kg/ NOAEL in male rats was 5 mg/kg/day Negative. day. based on body weight and nutritional v. In-vivo mouse micronucleus-- 4. Subchronic toxicity. Subchronic effects. In females, the NOAEL of 2.1 Negative. (90–day) feeding studies were mg/kg/day was based on body weight 3. Reproductive and developmental conducted with rats, mice, and dogs. In and nutritional changes, as well as toxicity. The results of a series of studies a 90–day feeding study in rats, the biologically significant hematologic indicated that there were no NOAEL was 3.1 and 2.1 mg/kg/day for changes at 3.6 mg/kg/day and above. reproductive, developmental males and females, respectively. In male Hemolytic effects were present only orteratogenic hazards associated with rats, the NOAEL was based on through the 6–month evaluation and the use of indoxacarb. In a 2-generation decreased body weight and nutritional only in females. The regenerative nature rat reproduction study, the parental parameters, mild hemolytic anemia and of indoxacarb-induced hemolytic NOAEL was 1.5 mg/kg/day. The decreased total protein and globulin anemia was demonstrated by the parental NOAEL was based on concentration. In female rats, the absence of significant changes in observations of reduced weight gain and NOAEL was based on decreased body indicators of circulating erythrocyte food consumption for the higher weight and food efficiency. In a mass at later evaluations. In mice, the concentration groups of the F0 subchronic neurotoxicity study in rats, chronic NOAEL of 2.6 mg/kg/day for generation and potential treatment- there was no evidence of neurotoxicity males was based on deceased body related changes in spleen weights for at 11.9 and 6.09 mg/kg/day, the highest weight and weight gain effects and food the higher groups of the F1 generation. dose tested for males and females, efficiency at 13.8 mg/kg/day and above. There was no effect on mating or respectively. The subchronic NOAEL in The NOAEL for females was 4.0 mg/kg/ fertility. The NOAEL for fertility and dogs (5.0 mg/kg/day, modifying factor day based on body weight nutritional reproduction was 6.4 mg/kg/day. The (M/F) was based on hemolytic anemia. effects, neurotoxicity, and clinical signs off spring NOAEL was 1.5 mg/kg/day, Erythrocyte values for most dogs were at 20 mg/kg/day. In dogs, the chronic and was based on the reduced mean within a range that would be considered NOAEL was about 2.3 and 2.4 mg/kg/ pup weights noted for the F1 litters of normal for dogs in a clinical setting. day in males and females, respectively the higher concentration groups. The Mice were less sensitive to indoxacarb based on hemolytic effects similar to effects on pup weights occurred only at than the rats or dogs. NOAELs (23 mg/ those seen in the subchronic dog study. a maternal effect level and may have kg/day, males, 16 mg/kg/day, females) 6. Animal metabolism—i. Livestock been due to altered growth and nutrition were based on mortality (males only); animal metabolism. Animal metabolism in the dams. In studies conducted to increased reticulocytes and Heinz has been studied in the rat, hen, and

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cow and is well understood. In contrast diet, the anticipated dietary burden in indoxacarb pending (fire ant bait), to crops, indoxacarb is extensively dairy cattle is 51.7 ppm and the however, the risk from that use has been metabolized in animals. anticipated dietary burden in beef cattle found to be negligible. The amount of ii. Poultry. In poultry, hens were fed is 49.1 ppm. The proposed grape use acreage for cherry use proposed in this at 10 ppm/day for 5 days, 87–88% of the will not increase the animal dietary Experimental Use Permit program is not total administered dose was excreted; burden. Based on standard curves significant enough to alter the recent parent comprised 51–54% of the total constructed from data in the cattle chronic dietary exposure, acute dietary dose in excreta. Concentration of feeding study, KN128/KN127 exposure, and aggregate exposure risk residues in eggs were low, 0.3–0.4 of the concentrations at the 51.7 ppm feeding assessments previously submitted to the total dose, as was the concentration of level are 0.123 ppm for whole milk, Agency in March 2003, with the residues in muscle, 0.2% of the total 0.033 ppm for skim milk and 1.46 ppm submission of the grape petition. In dose. Parent and metabolite IN–JT333 for cream. The KN128/KN127 those exposure analyses, there was were not detected in egg whites; only concentrations at the 49.1 ppm feeding adequate chronic, acute and aggregate insecticidally inactive metabolites were level are 0.046 ppm for muscle, 1.37 safety to all sub-populations. Therefore, identified. Parent and IN–JT333 were ppm for fat, 0.012 ppm for liver and the proposed new experimental use of found in egg yolks; however, their 0.026 ppm for kidney. Tolerances have Avaunt on cherries does not pose any concentrations were very low, 0.01–0.02 been established at 1.5 ppm in fat additional risk beyond that of the ppm. Concentrations of parent and IN– (cattle, goat, horse, sheep and hog), 0.05 currently registered and pending crop JT333 in muscle were at or below the ppm in meat, 0.03 ppm in meat by- uses. limit of quantitation, (LOQ) (0.01 ppm). products, 0.15 ppm in milk and 4.0 ppm 1. Dietary exposure. The chronic RfD iii. Poultry feeding study. A poultry in milk fat. of 0.02 mg/kg bw/day is based on a feeding study was not conducted for the 7. Metabolite toxicology. In rats, NOAEL of 2.0 mg/kg bwt/day from the initial section 3 registration because indoxacarb was readily absorbed at low subchronic rat feeding study, the finite concentrations of residues would dose (5 mg/kg), but saturated at the high subchronic rat neurotoxicity study, and not be expected based on the low dose (150 mg/kg). Indoxacarb was the chronic/carcinogenicity study, using concentration of residues in the metabolized extensively, based on very an uncertainty factor of 100. The acute metabolism study. However, the Agency low excretion of parent compound in RfD for the general population is 0.12 has required a poultry feeding study as bile and extensive excretion of mg/kg/day, based on the NOAEL of 12.5 a condition of registration for metabolized dose in the urine and feces. mg/kg in the acute neurotoxicity study indoxacarb. The study was submitted on Some parent compound remained and an uncertainty factor of 100. The October 31, 2003. Once the Agency has unabsorbed and was excreted in the acute RfD for females 13–50 years of age determined the components of the feces. No parent compound was is 0.02 mg/kg/day, based on the NOAEL tolerance expression, poultry meat, fat, excreted in the urine. The retention and of 2 mg/kg/day observed in the by products and egg tolerances will be elimination of the metabolite IN–JT333 developmental rat toxicity study and proposed. from fat appeared to be the overall rate using an uncertainty factor of 100. iv. Cattle. For the cow study, the determining process for elimination of cattle were fed at 10 ppm/day for 5– radioactive residues from the body. i. Food. Chronic dietary exposure days; approximately 20% of the total Metabolites in urine were cleaved assessment. Chronic dietary exposure administered dose was excreted in urine products (containing only one resulting from the currently approved and 53–60% was excreted in feces in 5– radiolabel), while the major metabolites use of indoxacarb on apples, Crop group days. Four tenths to 1.2% of the total in the feces retained both radiolabels. 5 (brassica vegetables), cotton, pears, dose in urine was parent indicating Major metabolic reactions included peppers, sweet corn, tomatoes, eggplant, extensive metabolism; parent hydroxylation of the indanone ring, alfalfa, head and leaf lettuce, peanuts, represented 46–68% of the fecal hydrolysis of the carboxylmethyl group potatoes, soybeans, cranberries (current activity. Thus, most residues were not from the amino nitrogen and the section 18 use) and the proposed use on absorbed; those residues that were opening of the oxadiazine ring, which grapes are well within acceptable limits absorbed were extensively metabolized. gave rise to cleaved products. for all sectors of the population. The Less than 1% of the total administered Metabolites were identified by mass Chronic Module of the Dietary Exposure dose was in milk, most of which was spectral analysis, NMR, ultraviolet (UV) Evaluation Model (DEEM, Exponent, parent compound. The insecticidally and/or by comparison to standards Inc., formerly Novigen Sciences, Inc., active metabolite IN–JT333 was not chemically synthesized or produced by Version 7.76) was used to conduct the found in milk. Residues in muscle microsomal enzymes assessment with the reference dose represented less than 0.01% of the total 8. Endocrine disruption. Lifespan, and (RfD) of 0.02 mg/kg/ day. The analysis administered dose most of which was multigenerational bioassays in used overall mean field trial values, parent. IN–JT333 was not detected in mammals and acute and subchronic processing factors and projected peak muscle. No other metabolites were seen studies on aquatic organisms and percent crop treated values. Secondary above 10% of the dose, thus only parent wildlife did not reveal endocrine effects. residues in milk, meatand poultry and IN–JT333 were monitored in the Any endocrine-related effects would products were also included in the cattle feeding study. have been detected in this definitive analysis. The chronic dietary exposure v. Cattle feeding study. A cattle array of required tests. The probability to indoxacarbis 0.000089 mg/kg/day, feeding study was conducted with of any such effect due to agricultural and utilizes 0.4% of the RfD for the indoxacarb at doses of 7.5 ppm, 22.5 uses of indoxacarb is negligible. overall U.S. population. The exposure of ppm and 75 ppm. The mean KN128/ the most highly exposed subgroup in KN127 concentrations were C. Aggregate Exposure the population, children age 1–6 years, proportional to the dosing level in Temporary tolerances for indoxacarb is 0.000238 mg/kg/day, and utilizes whole milk, skim milk, cream, muscle, are proposed to support agricultural use 1.2% of the RfD. The table below lists fat, liver and kidney. Based on final on cherries. Tolerances for indoxacarb the results of this analysis, which residue values for the respective are pending to support agricultural use indicate large margins of safety for each commodities contributing to the cattle on grapes. There are residential uses of population subgroup and very low

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probability of effects resulting from chronic exposure to indoxacarb.

Maximum Dietary Expo- Subgroup sure (mg/kg/day) % RfD

U.S. population 0.000089 0.4

Non-nursing infants (<1 year old) 0.000063 0.3

Children (1–6 years) 0.000238 1.2

Children (7–12 years) 0.000126 0.6

Females (13+, nursing) 0.000073 0.4

Males (13–19 years) 0.000090 0.5

Acute dietary exposure. Acute dietary exposure (MOE) were calculated based given in the table below. The percent of exposure resulting from the currently on an acute NOAEL of 2 mg/kg/day for the acute population adjusted dose (a approved use of indoxacarb on apples, women of child-bearing age and a PAD) for all population subgroups Crop Group 5 (brassica vegetables), NOAEL of 12 mg/kg/day for children shows that an adequate margin of safety cotton, pears, peppers, sweet corn, and the general population (Pesticide exists in each case. Thus, the acute tomatoes, eggplant, alfalfa, head and leaf Fact Sheet for Indoxacarb). The Tier 3 dietary safety of indoxacarb for lettuce, peanuts, soybeans, potatoes, analysis used distributions of field trial established and the follow-on use cranberries (current section 18 use) and residue data adjusted for projected peak clearly meets the FQPA standard of the proposed use on grapes are well percent crop treated. Secondary reasonable certainty of no harm and within acceptable limits for all sectors residues in milk, meat and poultry presents acceptable acute dietary risk. of the population. DEEMTM, was used to products were also included in the conduct the assessment. Margins of analysis. The results of this analysis are

99.9th Percentile of Exposure Subgroup % Acute population ad- Exposure (mg/kg/day) justed dose (aPAD)

U.S. population 0.008795 7.3

All infants 0.024729 20.6

Non-nursing (<1 year old) 0.026036 21.7

Children (1–6 years old) 0.013973 11.6

Children (7–12 years old) 0.006882 5.7

Females (13–19 years old) 0.005119 25.6

Females (20+, not pregnant or nursing) 0.005358 26.8

Females (13–50 years old) 0.005307 26.5

ii. Drinking water. Indoxacarb is water, were calculated to be much at this time because there is no highly unlikely to contaminate ground higher than the EECs. The chronic indication that toxic effects of water resources due to its immobility in DWLOCs ranged from 198 ppb to 697 indoxacarb would be cumulative with soil, low water solubility, high soil ppb. The acute DWLOCs ranged from those of any other chemical compounds. sorption, and moderate soil half-life. 440 ppb to 3,890 ppb. Thus, exposure Oxadiazine chemistry is new, and Based on the PRZM/EXAMS and SCI- via drinking water is acceptable. indoxacarb has a novel mode of action GROW models, the estimated 2. Non-dietary exposure. Indoxacarb compared to currently registered active environmental concentrations (EECs) of product registrations for residential non- ingredients. indoxacarb and its R-enantiomer for food uses are pending. Non- E. Safety Determination acute exposures are estimated to be 6.84 occupational, non-dietary exposure for parts per billion (ppb) for surface water DPX–MP062 has been estimated to be 1. U.S. population. Dietary and and 0.0025 ppb for ground water. The extremely small. Therefore, the occupational exposure will be the major EEC for chronic exposures are estimated potential for non-dietary exposure is routes of exposure to the U.S. to be 0.316 ppb for surface water and insignificant. population, and ample margins of safety 0.0025 ppb for ground water. Drinking D. Cumulative Effects have been demonstrated for both water levels of comparison (DWLOC), situations. The chronic dietary exposure theoretical upper allowable limits on EPA’s consideration of a common to indoxacarb is 0.000089 mg/kg/day, the pesticide’s concentration in drinking mechanism of toxicity is not necessary which utilizes 0.4% of the RfD for the

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overall U.S. population, using mean ENVIRONMENTAL PROTECTION B. How Can I Get Copies of this field trial values, processing factors and AGENCY Document and Other Related Information? projected peak percent crop treated [OPP–2004–0011; FRL–7343–5] values. The percent of the acute 1. Docket. EPA has established an population adjusted dose (aPAD) (7.3%) Ammonium Nonanoate; Notice of official public docket for this action for the overall U.S. population shows Filing a Pesticide Petition to Establish under docket identification (ID) number that an adequate margin of safety exists. a Tolerance for a Certain Pesticide OPP–2004–0011. The official public Using only PHED data levels A and B Chemical in or on Food docket consists of the documents (those with a high level of confidence), specifically referenced in this action, AGENCY: Environmental Protection MOEs for occupational exposure are 650 Agency (EPA). any public comments received, and for mixer/loaders and 1,351 for air blast other information related to this action. ACTION: Notice. applicators (worst-case). Based on the Although a part of the official docket, completeness and reliability of the SUMMARY: This notice announces the the public docket does not include toxicity data and the conservative initial filing of a pesticide petition Confidential Business Information (CBI) exposure assessments, there is a proposing the establishment of or other information whose disclosure is reasonable certainty that no harm will regulations for residues of the pesticide restricted by statute. The official public result from the aggregate exposure of chemical ammonium nonanoate in or on docket is the collection of materials that residues of indoxacarb including all various food commodities. is available for public viewing at the anticipated dietary exposure and all DATES: Comments, identified by docket Public Information and Records other non-occupational exposures. ID number OPP–2004–0011, must be Integrity Branch (PIRIB), Rm. 119, received on or before April 16, 2004. Crystal Mall #2, 1921 Jefferson Davis 2. Infants and children. Chronic ADDRESSES: Hwy., Arlington, VA. This docket dietary exposure of the most highly Comments may be submitted electronically, by mail, or facility is open from 8:30 a.m. to 4 p.m., exposed subgroup in the population, through hand delivery/courier. Follow Monday through Friday, excluding legal children age 1–6 years old, is 0.000238 the detailed instructions as provided in holidays. The docket telephone number mg/kg/day or 1.2% of the RfD. For Unit I. of the SUPPLEMENTARY is (703) 305–5805. infants (non-nursing, 1 year old), the INFORMATION. 2. Electronic access. You may access exposure accounts for 0.3% of the RfD. this Federal Register document For acute exposure at the 99.9th FOR FURTHER INFORMATION CONTACT: electronically through the EPA Internet percentile (based on a Tier 3 Bipin Gandhi, Registration Division under the ‘‘Federal Register’’ listings at assessment) the exposure was 0.013973 (7505C), Office of Pesticide Programs, http://www.epa.gov/fedrgstr/. Environmental Protection Agency, 1200 mg/kg/day (11.6% aPAD) for children An electronic version of the public Pennsylvania Ave., NW., Washington, 1–6 years old and 0.026036 mg/kg/day docket is available through EPA’s DC 20460–0001; telephone number: (21.7% aPAD) for non-nursing infants. electronic public docket and comment (703) 308–8380; e-mail address: system, EPA Dockets. You may use EPA There are residential uses of indoxacarb [email protected]. pending, but exposure is calculated to Dockets at http://www.epa.gov/edocket/ be extremely minimal. The estimated SUPPLEMENTARY INFORMATION: to submit or view public comments, access the index listing of the contents levels of indoxacarb in drinking water I. General Information of the official public docket, and to are well below the below the DWLOC. A. Does this Action Apply to Me? access those documents in the public Based on the completeness and You may be potentially affected by docket that are available electronically. reliability of the toxicity data, the lack Although not all docket materials may of toxicological endpoints of special this action if you are an agricultural, food manufacturer, or pesticide be available electronically, you may still concern, the lack of any indication that access any of the publicly available children are more sensitive than adults manufacturer. Potentially affected entities may include, but are not limited docket materials through the docket to indoxacarb, and the conservative facility identified in Unit I.B.1. Once in exposure assessment, there is a to: • Crop production (NAICS code 111) the system, select ‘‘search,’’ then key in reasonable certainty that no harm will • Animal production (NAICS code the appropriate docket ID number. result to infants and children from the 112) Certain types of information will not aggregate exposure of residues of • Food manufacturing (NAICS code be placed in the EPA Dockets. indoxacarb, including all anticipated 311) Information claimed as CBI and other dietary exposure and all other non- • Pesticide manufacturing (NAICS information whose disclosure is occupational exposures. Accordingly, code 32532) restricted by statute, which is not there is no need to apply an additional This listing is not intended to be included in the official public docket, safety factor for infants and children. exhaustive, but rather provides a guide will not be available for public viewing for readers regarding entities likely to be in EPA’s electronic public docket. EPA’s F. International Tolerances affected by this action. Other types of policy is that copyrighted material will entities not listed in this unit could also not be placed in EPA’s electronic public To date, no international tolerances be affected. The North American docket but will be available only in exist for indoxacarb. Industrial Classification System printed, paper form in the official public [FR Doc. E4–550 Filed 3–16–04; 8:45 am] (NAICS) codes have been provided to docket. To the extent feasible, publicly BILLING CODE 6560–50–S assist you and others in determining available docket materials will be made whether this action might apply to available in EPA’s electronic public certain entities. If you have any docket. When a document is selected questions regarding the applicability of from the index list in EPA Dockets, the this action to a particular entity, consult system will identify whether the the person listed under FOR FURTHER document is available for viewing in INFORMATION CONTACT. EPA’s electronic public docket.

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Although not all docket materials may or CD ROM you submit, and in any 3. By hand delivery or courier. Deliver be available electronically, you may still cover letter accompanying the disk or your comments to: Public Information access any of the publicly available CD ROM. This ensures that you can be and Records Integrity Branch (PIRIB), docket materials through the docket identified as the submitter of the Office of Pesticide Programs (OPP), facility identified in Unit I.B. EPA comment and allows EPA to contact you Environmental Protection Agency, Rm. intends to work towards providing in case EPA cannot read your comment 119, Crystal Mall #2, 1921 Jefferson electronic access to all of the publicly due to technical difficulties or needs Davis Hwy., Arlington, VA, Attention: available docket materials through further information on the substance of Docket ID Number OPP–2004–0011. EPA’s electronic public docket. your comment. EPA’s policy is that EPA Such deliveries are only accepted For public commenters, it is will not edit your comment, and any during the docket’s normal hours of important to note that EPA’s policy is identifying or contact information operation as identified in Unit I.B.1. that public comments, whether provided in the body of a comment will D. How Should I Submit CBI to the submitted electronically or in paper, be included as part of the comment that Agency? will be made available for public is placed in the official public docket, viewing in EPA’s electronic public and made available in EPA’s electronic Do not submit information that you docket as EPA receives them and public docket. If EPA cannot read your consider to be CBI electronically without change, unless the comment comment due to technical difficulties through EPA’s electronic public docket contains copyrighted material, CBI, or and cannot contact you for clarification, or by e-mail. You may claim other information whose disclosure is EPA may not be able to consider your information that you submit to EPA as restricted by statute. When EPA comment. CBI by marking any part or all of that identifies a comment containing i. EPA Dockets. Your use of EPA’s information as CBI (if you submit CBI copyrighted material, EPA will provide electronic public docket to submit on disk or CD ROM, mark the outside a reference to that material in the comments to EPA electronically is of the disk or CD ROM as CBI and then version of the comment that is placed in EPA’s preferred method for receiving identify electronically within the disk or EPA’s electronic public docket. The comments. Go directly to EPA Dockets CD ROM the specific information that is entire printed comment, including the at http://www.epa.gov/edocket/, and CBI). Information so marked will not be copyrighted material, will be available follow the online instructions for disclosed except in accordance with in the public docket. submitting comments. Once in the procedures set forth in 40 CFR part 2. Public comments submitted on system, select ‘‘search,’’ and then key in In addition to one complete version of computer disks that are mailed or docket ID number OPP–2004–0011. The the comment that includes any delivered to the docket will be system is an ‘‘anonymous access’’ information claimed as CBI, a copy of transferred to EPA’s electronic public system, which means EPA will not the comment that does not contain the docket. Public comments that are know your identity, e-mail address, or information claimed as CBI must be mailed or delivered to the docket will be other contact information unless you submitted for inclusion in the public scanned and placed in EPA’s electronic provide it in the body of your comment. docket and EPA’s electronic public public docket. Where practical, physical docket. If you submit the copy that does objects will be photographed, and the ii. E-mail. Comments may be sent by e-mail to [email protected], not contain CBI on disk or CD ROM, photograph will be placed in EPA’s mark the outside of the disk or CD ROM electronic public docket along with a Attention: Docket ID Number OPP– 2004–0011. In contrast to EPA’s clearly that it does not contain CBI. brief description written by the docket Information not marked as CBI will be staff. electronic public docket, EPA’s e-mail system is not an ‘‘anonymous access’’ included in the public docket and EPA’s C. How and to Whom Do I Submit system. If you send an e-mail comment electronic public docket without prior Comments? directly to the docket without going notice. If you have any questions about CBI or the procedures for claiming CBI, You may submit comments through EPA’s electronic public docket, please consult the person listed under electronically, by mail, or through hand EPA’s e-mail system automatically FOR FURTHER INFORMATION CONTACT. delivery/courier. To ensure proper captures your e-mail address. E-mail receipt by EPA, identify the appropriate addresses that are automatically E. What Should I Consider as I Prepare docket ID number in the subject line on captured by EPA’s e-mail system are My Comments for EPA? included as part of the comment that is the first page of your comment. Please You may find the following placed in the official public docket, and ensure that your comments are suggestions helpful for preparing your made available in EPA’s electronic submitted within the specified comment comments: public docket. period. Comments received after the 1. Explain your views as clearly as close of the comment period will be iii. Disk or CD ROM. You may submit possible. marked ‘‘late.’’ EPA is not required to comments on a disk or CD ROM that 2. Describe any assumptions that you consider these late comments. If you you mail to the mailing address used. wish to submit CBI or information that identified in Unit I.C.2. These electronic 3. Provide copies of any technical is otherwise protected by statute, please submissions will be accepted in information and/or data you used that follow the instructions in Unit I.D. Do WordPerfect or ASCII file format. Avoid support your views. not use EPA Dockets or e-mail to submit the use of special characters and any 4. If you estimate potential burden or CBI or information protected by statute. form of encryption. costs, explain how you arrived at the 1. Electronically. If you submit an 2. By mail. Send your comments to: estimate that you provide. electronic comment as prescribed in this Public Information and Records 5. Provide specific examples to unit, EPA recommends that you include Integrity Branch (PIRIB) (7502C), Office illustrate your concerns. your name, mailing address, and an e- of Pesticide Programs (OPP), 6. Make sure to submit your mail address or other contact Environmental Protection Agency, 1200 comments by the deadline in this information in the body of your Pennsylvania Ave., NW., Washington, notice. comment. Also include this contact DC 20460–0001, Attention: Docket ID 7. To ensure proper receipt by EPA, information on the outside of any disk Number OPP–2004–0011. be sure to identify the docket ID number

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assigned to this action in the subject or on all raw agricultural commodity. B. Toxicological Profile line on the first page of your response. EPA has determined that the petition 1. Acute toxicity. Undiluted nonanoic You may also provide the name, date, contains data or information regarding acid administered orally to rats at a dose and Federal Register citation. the elements set forth in section 408(d)(2) of the FFDCA; however, EPA of 3,200 milligrams/kilogram (mg/kg) II. What Action is the Agency Taking? has not fully evaluated the sufficiency did not cause death which indicated a EPA has received a pesticide petition of the submitted data at this time or lethal dose LD50 3,200 mg/kg; however, as follows proposing the establishment whether the data support granting of the deaths did occur at this dose level when and/or amendment of regulations for petition. Additional data may be needed the chemical was administered residues of a certain pesticide chemical before EPA rules on the petition. intraperitoneally (IP) for an IP LDL0 = in or on various food commodities 3,200 mg/kg. More recently, nonanoic under section 408 of the Federal Food, A. Residue Chemistry acid of unspecified source administered Drug, and Cosmetic Act (FFDCA), 21 1. Plant metabolism. In solution, orally to rats and mice had an LD50 U.S.C. 346a. EPA has determined that ammonium nonanoate (CAS No. 112– 5,000 mg/kg for both rat and mouse. For > this petition contains data or 05–0) is ionized and occurs as the male rats, the oral LD50 9,000 mg/kg. information regarding the elements set straight chain C-9 nonanoic acid and the Nonanoic acid, as undiluted material, forth in FFDCA section 408(d)(2); ammonium ion. Nonanoic acid is administered to mice by the intravenous however, EPA has not fully evaluated metabolized by beta-oxidation and by route (IV) had an IV LD50 = 224 mg/kg. the sufficiency of the submitted data at respiration through the citric acid cycle, A 10% solution of nonanoic acid in this time or whether the data support converted to carbon dioxide and water. corn oil failed to kill mice at a dose of granting of the petition. Additional data Suryanarayanan and McConnell (Ref. 1) 3,200 mg/kg when given orally (mouse may be needed before EPA rules on the showed the tracer in nonanoic acid-1- oral LDL50 3,200 mg/kg), but caused petition. C14 was 98% assimilated into death at a dose of 1,600 mg/kg by the metabolites by beta-oxidation to acetyl intraperitoneal route (mouse IP LDL0 = List of Subjects CoA and utilized via the glyoxylate 1,600 mg/kg). Symptoms in mice Environmental protection, cycle in wheat stem rust uredospores. included labored respiration and Agricultural commodities, Feed 2. Analytical method. In the Federal roughing of the coat and death was additives, Food additives, Pesticides Register of February 19, 2003 (68 FR observed as soon as 4 days after and pests, Reporting and recordkeeping 7931) (FRL–7278–7), it is indicated that treatment. the analytical method for nonanoic acid requirements. The dermal LD50 for undiluted is being made available to anyone Dated: March 4, 2004. nonanoic acid in rabbits has been interested in pesticide enforcement Lois Rossi, reported to be LD50 5,000 mg/kg. when requested, from Norm Cook, Nonanoic acid from an unspecified Director, Registration Division, Office of Antimicrobials Division (7510C), Office Pesticide Programs. source caused a dermal LD50 2,000 mg/ of Pesticide Programs, U.S. kg on rats. Environmental Protection Agency, 1200 Summary of Petition Application of nonanoic acid to intact Pennsylvania Ave., NW., Washington, The petitioner summary of the and abraded skin of rabbits had an LD DC 20460–0001. Office location and 50 pesticide petition is printed below as 9,000 mg/kg, and caused moderate to telephone number: 1921 Jefferson Davis required by FFDCA section 408(d)(3). severe irritation. Highway, 3rd Floor, Arlington, VA The summary of the petition was 22202, (703) 308–8253. These data indicate nonanoic acid has prepared by the petitioner and 3. Magnitude of residues. Nonanoic low acute toxicity by intraperitoneal, represents the view of the petitioner. acid is a naturally occurring component oral or dermal routes. Intravenous The summary may have been edited by of fatty acids in plants (68 FR 7931). exposure to ammonium nonanoate EPA if the terminology used was Lowfat chedder cheese contained small (nonanoic acid) is irrelevant to its use as unclear, the summary contained amounts of nonanoic acid (Ref. 2). an inert ingredient pesticide products. extraneous material, or the summary Nonanoic acid is naturally present at Intraperitoneal nonanoic acid may occur unintentionally made the reader levels up to 224 parts per billion (ppb) via skin wounds, but the relatively low conclude that the findings reflected in apples, 385 parts per million (ppm) acute toxicity would be of low risk. Oral EPA’s position and not the position of in the skin of grapes, and 143 ppm in and dermal exposure to nonanoic acid the petitioner. The petition summary grape pulp. It is present in a number of are of very low risk. announces the availability of a other foods as well. An average serving Nonanoic acid was delivered at 0.46 description of the analytical methods of grapes containing 385 ppm of mg/liter (mg/L) as an aerosol for 4 hours available to EPA for the detection and nonanoic acid in the grape skins would (h) to 10 rats without any mortality; measurement of the pesticide chemical result in exposure to nonanoic acid to however, at 3.8 mg/L, 80% mortality residues or an explanation of why no an average consumer of 164 µg/kg/day occurred. Relatively low degree of such method is needed. (68 FR 7931). toxicity occurred following inhalation of Falcon Lab LCC Nonanoic acid may be safely used as the aerosol. Respiratory irritation was synthetic food flavoring substances and observed at both dose levels. PP 3E6789 adjuvants in food in the minimum Acute toxicity to other environmental EPA has received a pesticide petition quantity required to reproduce the species has been determined for a fatty (PP 3E6789) from Falcon Lab LLC, 1103 intended effect (21 CFR 172.515). acid similar to nonanoic acid. Fatty acid Norbee Drive, Wilmington, DE 19803 Nonanoic acid may be used in an sodium salts were found to be less toxic proposing, pursuant to section 408(d) of aliphatic acid mixture for washing or to than the parent acids, and toxicities of the Federal Food, Drug, and Cosmetic assist in the peeling of fruits and both increased with chain length Act (FFDCA), 21 U.S.C. 346a(d), to vegetables. The aliphatic acid mixture (between 6 and 12 carbons). For capric amend 40 CFR part 180 to establish an may be used at a level not to exceed 1% acid (decanoic acid) C-10 in fresh water, exemption from the requirement of a in the lye peeling solution (21 CFR the 48 hr lethal concentration (LC)50 for tolerance for ammonium nonanoate in 173.315), (68 FR 7931). red killifish (Oryzias latipes) and

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gammarus (Hyale plumulosa) were 20 mice and treated twice-weekly with 50 dose, three animals per sex were tested. and 41 mg/L, respectively. Sodium mg doses of undiluted nonanoic acid for However, the study did not report organ caprate was less toxic than the acid to 80 weeks. No evidence of severe dermal weights and histopathology. This was killifish (54 mg/L). Based on these data, irritation or systemic toxicity was seen. considered a deficiency in this study. nonanoic acid in the ammonium salt Histopathology revealed no tumors of Nevertheless, the Agency determined form (ammonium nonanoate) would be the skin or the internal organs (68 FR that because no toxic effects were expected to be no more than slightly 7931). observed at a very high level dose toxic to aquatic fauna. 3. Reproductive and developmental approaching 2,000 mg/kg, a 90–day oral Toxicity to algae may be estimated by toxicity. Development toxicity was study was not necessary (68 FR 7931). comparison with data for soaps in conducted on a group of 22 pregnant Nonanoic acid at 80, 40, 20 and 10% general. For example, an LC50 range of Crl: COBS CD(SD)BR rats. These rats applied as a 15 micro-liter aliquot to 180–320 mg/L has been reported for were treated with nonanoic acid in corn patches placed on the lower back of 152 Chlorella vulgaris. Therefore, nonanoic oil at a dose of 1,500 mg/kg on gestation women for 47 hr and evaluated at 48 acid as the potassium or sodium salt days 6 through 15 (both days inclusive). and 96 hr indicated erythema (redness) would not be expected to be Maternal body weight was not decreased with time for all significantly toxic to algae at these low significantly affected during the concentrations, but the higher concentrations of approximately 0.032% treatment. Only 1 out of 22 animals concentrations increased surface w/w (320 ppm). showed signs of clinical toxicity. No changes with time (Ref. 3). Reiche et al. Toxicity to fish, fathead minnow significant histopathology signs were suggested nonanoic acid was an irritant (Pimephales promelas), for 96 hr observed in the maternal animals. rather than an allergen regardless of the exposure was reported to be LC50 = 104 Nonanoic acid treatment did not have increase in skin reaction over patch test ppm. any significant effect on cesarean exposure time. The skin reaction to 10% Fatty acids are toxic to aquatic section observations. Four fetuses in one nonanoic acid for 47 hr was considered invertebrates, but only slightly toxic to litter showed a higher incidence of cleft to be mild by the National Institute of cold and warm water fish species (RED: palate compared to the control mean. Occupational Safety and Health Soap Salts; EPA–738–R–92–015). For maternal toxicity, EPA determined (NIOSH). However, fatty acids are rapidly the no observed adverse effect level Solutions of nonanoic acid at 0.5 M or destroyed by microbial action and (NOAEL) to be greater than 1,500 mg/ 1.0 M in propanol (approximately 10 to sorption or formation of insoluble salts kg/day. Because fetal effects were 20% w/w) caused skin irritation when of calcium or magnesium in soil and observed at 1,500 mg/kg/day, the applied under occlusive patches in 25 water. The proposed uses for nonanoic NOAEL for developmental toxicity was human volunteers. A 20% nonanoic acid (ammonium nonanoate) as an inert not determined. EPA has determined acid solution in propanol and applied as would not be applied near water or on that this dose is in excess of the a patch test produced skin reactions in drainage ditches or onto marsh, ponds, Agency’s limit dose for toxic effects. 94% of 116 healthy male volunteers. lakes, streams or rivers. The type and level of exposure expected The lesions consisted of mainly Nonanoic acids are relatively non- from the active ingredient use of this erythema (redness) at 48 hr and toxic to waterfowl and upland game chemical is much lower than the dose pigmentation at 96 hr (Ref. 4). birds (RED: Soap Salts; EPA–738–R–92– level shown in the study (68 FR 7931). Forty two nonatopic healthy male 015). Nonanoic acid was weakly positive subjects of 18 to 47 years of age had 3 As a result of a number of acute for inducing mutations in mouse to 10 patch tests on the volar area of the toxicity studies, technical nonanoic acid lymphoma cells. Mutations were forearm applied with 8 mm Finn is placed in the following Toxicity induced with nonanoic acid at greater Chambers which were assessed by two Categories: Primary eye irritation than or equal to 50 µg/mL. Since the independent readers at 48 hr post (Toxicity Category II); acute dermal and mutations were observed with severe application. A six point grading scale inhalation toxicity (Toxicity Category cytotoxicity and small colony from no visible reaction to intense III); acute oral toxicity (Toxicity development, the observed mutations erythema with bulbous formation Category IV). Sensitization test results may have been an aberration caused by indicated chemical concentrations showed that nonanoic acid cannot be cell damage and not actual mutational which produced patch test reactions of considered a dermal sensitizer (68 FR changes (61 FR 5716) (February 14, less than or equal to 2+ in at least 75% 7931). 1996) (FRL–5348–9). of the subjects as follows: 0.5% 2. Genotoxicity. It was reported that Nonanoic acid as single oral doses of Benzalkonium-chloride, 5% sodium the Ames Test (Salmonella/reverse 1,250, 2,500 and 5,000 mg/kg to ICR lauryl sulfate, 0.8% croton-oil, 0.02 mutation assay) showed nonanoic acid mice followed by bone marrow harvest dithranol, 80% nonanoic acid (propanol to be non-mutgenic. Similarly, an in at 24, 48 and 72 hr after treatment, did solution), 100% propylene glycol and vivo cytogenetics study using not significantly increase 2% sodium hydroxide (Ref. 5). micronucleus assay gave a negative micronucleated polychromatic One hundred hospitalized patients result. In a mouse lymphoma forward erythrocytes which indicated a negative with different types of skin disease were mutation study, nonanoic acid appears micronucleus assay test (61 FR 5716). patch tested with nonanoic acid with a to induce a weak mutagenic response at 4. Subchronic toxicity.In an oral 48 hr contact period followed by or higher than 50 milligrams/milliliter toxicity study (conducted for 14 days), evaluation at 1 and 72 hr after patch (mg/mL) level. This was observed in the no systemic toxicity was observed with removal. The nonanoic acid presence of increasing toxicity, and may either sex (animal species unspecified) concentration to produce a discernible be an indication of gross chromosomal even at the highest nonanoic acid dose irritation reaction in 50% of the changes or damage and not actual tested, 20,000 ppm (1,834 mg/kg/day). population (ID50) was calculated by mutational changes within the In addition, nonanoic acid showed no conventional probit analysis. The thymidine kinese gene locus (68 FR adverse effects on survival, clinical calculated ID50 for males and females 7931). signs, body weight gain, food was 5.3 and 6.4%, respectively, A dermal carcinogenicity study was consumption, hematology, clinical nonanoic acid concentration. Three of performed on the shaved skin area of 50 chemistry or gross pathology. For each 100 patients reacted to 1% nonanoic

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acid and all reacted to 20 to 39.3% mg of nonanoic acid caused severe disruption. Nonanoic acid occurs nonanoic acid (Ref. 6). NIOSH reported rabbit eye injury as reported above and naturally in plants and animals. an 80 and 20% nonanoic acid solution published in 1964, but another study, C. Aggregate Exposure with 48 and 24 hr human skin contact, published in 1999, with a 100 uL (0.1 respectively, caused moderate skin mL = approx one drop) dose or droplet 1. Dietary exposure. The Food and irritation. to the rabbit eye caused only mild Drug Administration has cleared Sensitization reactions were not injury. Since the source of nonanoic nonanoic acid as a synthetic food observed in 25 human volunteers after acid is unknown in the 1999 study, it is flavoring agent (21 CFR 172.515), as an patch testing with 12% nonanoic acid impossible to compare the actual dose; adjuvant, production aid and sanitizer solution in petroleum ether. however, since nonanoic acid has a to be used in contact with food (21 CFR Nonanoic acid is a non-sensitizing density less than water, the doses used 178.1010(b)) and in washing or to assist irritant which means it does not cause in these studies would appear similar. in lye peeling of fruits and vegetables allergic reactions in most humans. Therefore, these results would appear (up to 1%) (21 CFR 173.315). Nonanoic Nonanoic acid is lipophilic and non- inconclusive for eye irritation or acid is also exempt from the sensitizing. indicate a rather large range of requirement of a tolerance when used in Nonanoic acid at a dose of 500 mg/kg experimental error. or on all food commodities, as a plant in contact with rabbit skin for 24 hr was Rats exposed to atmospheric regulator on plants, seeds, or cuttings a moderate irritant. Nonanoic acid in an concentrations of 840 mg/cubic-meter after harvest in accordance with Good undiluted form produced severe skin (125 ppm) nonanoic acid for a period of Agricultural Practices (GAP). It is also irritation in guinea pigs when applied to 6 hr showed no symptoms of toxicity. exempt from a tolerance when used as the skin. However, in another study, test animals a herbicide on all plant food commodity A 28–day dermal toxicity study (species not specified) subjected to an provided that allocations are not made conducted on rabbits was submitted to atmospheric concentration of 3.75 mg/L directly to the food commodity except EPA under TSCA section 8(e). Five male (1,150 ppm) nonanoic acid for a period when used as a harvest aid or desiccant and five female New Zealand white of 6 hr developed clinical signs of nasal to any root or tuber vegetable, bulb, or rabbits were dermally treated with discharge, blinking, and labored cotton (40 CFR 180.1159), (68 FR 7931). nonanoic acid present in mineral oil. In breathing. Inhalation exposure indicated Applications of ammonium nonanoate all, 10 applications were made (5 per nonanoic acid was a respiratory irritant. (dissociated into nonanoic acid), as an week) at a dose level of 500 mg/kg/day 5. Chronic toxicity. Oral exposure of inert ingredient additive, would (25% w/w). A 2–week recovery period 8 male rats to nonanoic acid at 4.17% potentially contact all plant parts of was allowed for selected rabbits. During in the diet (approximately 2,100 g/kg/ food crops. the first and second week of treatment day) for 4 weeks had no effect on A calculation of the dietary exposure slight body weight loss and decreased survival. A slight 4% decrease in mean is complicated by the exemption from food consumption were observed. One growth was observed, but not tolerance for nonanoic acid and female rabbit showed ocular discharge statistically significant. particularly for the 21 CFR 172.515 rule and hypoactivity during the second A study on chronic toxicity/ which allows direct addition of week of treatment. All rabbits dermally carcinogenicity in mice was conducted nonanoic acid into food at the minimum treated with nonanoic acid by day 14 for 80 weeks. A dose of 50 mg of quantity required to produce the desired showed signs of severe erythema and nonanoic acid was dermally applied to effect. However, in the aggregate, the moderate edema. Dermal reactions each shaved mouse twice/day for 80 daily consumption of nonanoic acid is consisting of moderate desquamation, weeks. Histopathology showed no non- probably less than 1 mg/kg/day. The moderate fissuring, eschar, exfoliation neoplastic or neoplastic lesions on skins worst case scenarios presented indicate and necrosis were also observed at day and internal organs of mice. The Agency nonanoic acid exposure as tens of µg/kg/ 14. By day 29, all dermal reactions had concluded that this study although not day. Based on cited public data in this reversed. It was evident that at the exactly conducted according to document, the no effect level for mice treatment level of 500 mg/kg/day of guideline, adequately assesses the and rats for ingested nonanoic acid is nonanoic acid, significant dermal signs chronic toxicity and the carcinogenic 3,000 mg/kg/day and the estimated of toxicity were observed but no potential of nonanoic acid via the maximum human dietary exposure is significant systemic reaction (68 FR dermal route (68 FR 7931). 0.030 mg/kg/day; therefore, a 10,000 7931). There is additional information 6. Animal metabolism. Mammals, fold safety factor or greater is estimated on the previous study with 10 New birds and invertebrates consume fatty for nonanoic acid in food. However, Zealand rabbits which showed that acids as a normal constituent of their since nonanoic acid is rapidly mortality did not occur and microscopic daily diet (RED: Soap Salts; EPA–738– metabolized in the human digestive effects on kidneys, liver, lungs, heart R–92–015) and would metabolize system, the estimated safety factor is a and brains were not observed. Slight to nonanoic acid via normal respiration, temporal and minimal estimate. The severe skin irritation occurred in the the same as plants. petitioner believes that the surfactant first week and progressed to necrosis in 7. Metabolite toxicology. Nonanoic properties of ammonium nonanoate the second week. Skin irritation on four acid, as a straight chain carbon (nonanoic acid) should enhance the rabbits subsided during 2 weeks of molecule, would be metabolized by efficacy of pesticides with a recovery after treatments ended. NIOSH beta-oxidation to form acetate molecules concomitant reduction of pesticide rates characterized the effect on rabbit skin, which enter the citric acid cycle and are and reduce dietary exposure to in the previous study, as moderate. metabolized to carbon dioxide, water pesticides. Severe irritation was produced by the and energy. None of the metabolites i. Food. For nonanoic acid as a application of 91 mg of nonanoic acid would be considered to have any sanitizer use, a worst case dietary to the rabbit eye. This same study was toxicological risk. exposure estimate has been calculated, reported for nonanoic acid as severely 8. Endocrine disruption. Straight assuming that all food consumed by an irritating to rabbit eyes and aerosols are chain carbon molecules, as in the C9 adult or child has contacted a sanitized also an eye irritant. NIOSH reported two carbon chain of nonanoic acid would be surface using pelargonic acid (nonanoic eye irritation studies which showed 91 unlikely to cause a risk of endocrine acid), that a 1 mg square centimeter (sq

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cm) sanitizer residue remains on the introduced into drinking water. eye exposure risk compared to other surface, and that 100% of the residue However, EPA concluded exposure typical liquid surfactants. (170 ppm) is transferred to the food through drinking water was expected to Nonanoic acid is slightly volatile and from the surface. Using these be low and not of significance (68 FR is a component of the odor of milk, assumptions, in which all food contacts 7931). The petitioner believes that cheese, fats and soap. However, the 4,000 sq cm of sanitized non-porous ammonium nonanoate (nonanoic acid) estimated half-life in the atmosphere for food-contact surfaces a worst case as an inert ingredient is not expected to nonanoic acid is 1.6 days. Therefore, dietary exposure of 680 µg/day is be applied near drinking water sources. inhalation exposure would be minimal calculated. For a 70 kg adult this Rapid metabolism of nonanoic acid in 1 for most occupations. Workers in the becomes 9.7 µg/kg/day and for a 15 kg to 9 days in soil should prevent aforementioned industries of cheese and child, exposure is calculated as 45 µg/ potential contamination of surface water soap, etc. have not been seriously kg/day (68 FR 7931). or ground water (68 FR 7931). The soil afflicted by long-term exposure to For a typical use as an inert half-life of fatty acids was estimated to environments with nonanoic acid in the ingredient, nonanoic acid as ammonium be less than 1–day (RED: Soap Salts; work environment. nonanoate at a concentration of 0.5% w/ EPA–738–R–92–015). D. Cumulative Effects w in the dilute spray solution applied The nonanoic acid log octanol/water EPA concluded that pelargonic acid in 20 gal/acre spray volume would partition coefficient is 3.42 which (nonanoic acid) is sufficiently non-toxic apply approximately 8.7 mg/sq ft of indicated the hydrophobic molecule, that EPA can determine that it does not ammonium nonanoate of which 7.8 mg nonanoic acid, would have a very strong share a common mechanism of toxicity is nonanoic acid. If we assume 8 affinity to the organic matter in soil and with other substances (68 FR 7931). The cucumbers of 4.0 lb total weight would not leach into ground water. rapid dissipation of nonanoic acid in completely covered the 1 sq ft area, the Microbial degradation in soil, which the environment, i.e. soil half-life of 1– consumption of one-half of one proceeds at a half-life rate of 1–day for day and atmospheric half-life of 1.6 cucumber (0.25 lb raw cucumber) would fatty acids, would probably rapidly result in an exposure to 0.5 mg days, and normal metabolism of eliminate the strongly adsorbed nonanoic acid by humans would nonanoic acid. Therefore, the calculated nonanoic acid from soil. These factors exposure to a typical 70 kg adult would probably prevent an accumulation of µ would probably assure nonanoic acid residual levels in the environment to be 7 g/kg/day; and for a child of 15 kg, would not occur in ground water. The the exposure would be 33 µg/kg/day trigger any cumulative effects. The salts of nonanoic acid would dissociate mechanism of action of nonanoic acid nonanoic acid. The calculated human into the ionic forms of nonanoic acid exposure would be the same for one and some other fatty acids on plants is and the free salt in soil and although a physical effect on plant cell walls cucumber or more per sq ft because the ammonium nonanoate is water soluble, application is uniformly applied to the which affects cell wall integrity and it would be bound to soil organic matter soil surface area or crop laying on the would be less likely to have a in the dissociated form. Soils contain soil surface. The actual exposure in the cumulative effect as compared to abundant magnesium and calcium ions cucumber example should be less than compounds with a mode of action that which would form insoluble salts of calculated because the consumption affects metabolic or regulatory functions nonanoic acid and contribute to was assumed to occur on the day of in organisms. protection of ground water. application without cucumber washing E. Safety Determination or preparation and without 2. Non-dietary exposure. Applicator consideration of normal interception of exposure to nonanoic acid as an inert 1. U.S. population. Ammonium some of the spray application by plant ingredient is not expected to exceed the nonanoate forms nonanoic acid in foliage. currently approved uses. The use of solution and nonanoic acid occurs Some pesticide applications are ammonium nonanoate (nonanoic acid) naturally in laundry and hygienic soaps directed sprays which would reduce with herbicides should increase the rate as sodium or potassium nonanoate. potential contact with the edible plant of plant tissue necrosis and should Therefore, the toxicological properties parts. Translocation of nonanoic acid is reduce the potential risk to adults or of the ionized form, nonanoic acid are unlikely to occur since its mode of children who contact sprayed plant reviewed for the toxicological profile. action is a physical reaction with cell parts, because the rapidly desiccated Nonanoic acid is used as a antimicrobial membranes as a lipophilic chemical. plant cells should retain nonanoic acid, agent or sanitizer for food contact The petitioner believes that ammonium as an inert ingredient, and the herbicide surfaces. It is also used in lithographic nonanoate would be a more acceptable active ingredient bound to collapsed plate developer solutions. The three adjuvant alternative to many surfactants cell tissues. Off-target movement of the uses described above involve disposal in use today. inert ingredient additive, nonanoic acid, via public sewer systems, which ii. Drinking water. Nonanoic acid, as as ammonium nonanoate, should not be indicates the low risk concern an inert ingredient in pesticide expected to exceed the potential off- associated with nonanoic acid in the formulations should not be applied near target movement of the pesticide active environment. Nonanoic acid is also or on potable water. The rapid ingredient. used as a herbicide with directed and dissipation of nonanoic acid in soil, Fatty acids and their salts are a shielded applications on all food crops with an estimated soil half-life of 1–day potential risk for eye injury; therefore, and is exempt from tolerance. However, for fatty acids, should mitigate any eye protection would be recommended the directed and shielded application potential for water contamination by when handling ammonium nonanoate. would be expected to prevent contact run-off from treated fields. Drainage The solid form of 100% ammonium with the edible plant parts. Nonanoic ditches and lakes, ponds, streams and nonanoate crystals could have a reduced acid is exempt from a tolerance when rivers will be prohibited from nonanoic risk to eyes compared to the 40% liquid applied to root or tuber vegetable, bulb acid application. KX-6116 as a sanitizer concentrate because accidental facial or cotton as a desiccant or harvest aid. contained nonanoic acid as its active exposure by splashing would be The proposed use, in this notice of component and low concentrations of eliminated. Also 100% crystalline filing for ammonium nonanoate nonanoic acid could be expected to be ammonium nonanoate would have less (nonanoic acid) as an inert ingredient,

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would be for applications to agricultural Volatilization half-life of nonanoic acid 4. Wahlberg, J. E. and H. I. Maibach. commodities at rates less than those from a river was estimated to be 29 days 1980. Nonanoic acid irritation - A used as an herbicide or crop desiccant. from a model river and 210 days from positive control at routing patch testing? Based on the following five a model lake. Nonanoic acid is also Contact Dermatitis 6(2): 128–130 considerations, EPA concluded that inactivated in water by the formation of (Abstract). nonanoic acid is unlikely to pose a risk calcium and magnesium salts which are 5. Willlis, C. M., C. J. M. Stephens and under all reasonable exposure scenarios: insoluble precipitates and non-reactive. J. D. Wilkinson. 1988. Experimentally- i. Fatty acids such as nonanoic acid In summary, nonanoic acid is highly induced irritant contact dermatitis. are processed by known metabolic unlikely to accumulate in the Determination of optimum irritant pathways within the body and environment due to rapid metabolism in concentrations. Contact Dermatitis contribute to normal physiological soils and neutralization as insoluble 18(1): 20–24 (Abstract). function. salts. 6. Wahlberg, J. E., K. Wrangsjo and A. ii. Nonanoic acid is naturally present 2. Infants and children. As previously Hietasalo. 1985. Skin irritancy from at levels up to 224 ppb in apples, 385 discussed the dietary safety factor for nonanoic acid. Contact Dermatitis 13(4): ppm in the skin of grapes, and 143 ppm nonanoic acid is approximately 10,000 266–269 (Abstract). in grape pulp. It is present in a number fold; therefore, risk to children and of other foods as well. An average [FR Doc. E4–553 Filed 3–16–04; 8:45 am] infants, with primary exposure thru BILLING CODE 6560–50–S serving of grapes containing 385 ppm of ingestion, would be of minimal concern. nonanoic acid in the grape skins would Section 408 of the FFDCA provides result in exposure to nonanoic acid to that EPA shall apply an additional an average consumer of 164 µg/kg/day. ENVIRONMENTAL PROTECTION In comparison, a worst case estimate of tenfold margin of safety for infants and AGENCY children in the case of threshold effects dietary exposure to nonanoic acid as a [OPP–2004–0044; FRL–7347–1] result of its use as sanitizer is 9.7 µg/kg/ to account for prenatal and postnatal day for a 70 kg adult and 45 µg/kg/day toxicity and the completeness of the Buprofezin; Notice of Filing a Pesticide for a 15 kg child. data base on toxicity and exposure Petition to Establish a Tolerance for a iii. The Food and Drug unless EPA determines that a different Certain Pesticide Chemical in or on Administration has cleared nonanoic margin of safety will be safe for infants Food acid as a synthetic food flavoring agent and children. Margins of safety are AGENCY: and adjuvant (21 CFR 172.515), as an incorporated into EPA risk assessments Environmental Protection adjuvant, production aid and sanitizer either directly through use of a MOE Agency (EPA). to be used in contact with food (21 CFR analysis or through using uncertainty ACTION: Notice. 178.1010(b)) and in washing or to assist (safety) factors in calculating a dose level that poses no appreciable risk to SUMMARY: This notice announces the in lye peeling of fruits and vegetables initial filing of pesticide petitions (up to 1% nonanoic acid) (21 CFR humans. Based on the numerous considerations, EPA concluded that proposing the establishment of 173.315). Nonanoic acid is also exempt regulations for residues of a certain from the requirement of a tolerance pelargonic acid was sufficiently non- toxic that a margin of safety analysis pesticide chemical in or on various food when used in or on all food commodities. commodities, as a plant regulator on was not appropriate. For the same plants, seeds, or cuttings after harvest in reasons, EPA has not applied an DATES: Comments, identified by docket accordance with GAP. It is also exempt additional margin of safety for the ID number OPP–2004–0044, must be from a tolerance when used as a protection of infants and children (68 received on or before April 16, 2004. herbicide on all plant food commodities FR 7931). ADDRESSES: Comments may be provided that allocations are not made F. International Tolerances submitted electronically, by mail, or directly to the food commodity except through hand delivery/courier. Follow when used as a harvest aid or desiccant Codex maximum residue levels have the detailed instructions as provided in to any root or tuber vegetable, bulb, or not been established for nonanoic acid Unit I. of the SUPPLEMENTARY cotton (40 CFR 180.1159). (68 FR 7931). INFORMATION. iv. Dietary toxicity testing evidenced G. References FOR FURTHER INFORMATION CONTACT: adverse reactions only at doses that Shaja R. Brothers, Registration Division 1. Suryanarayanan, S. and W. B. were at or above limit doses. Dermal (7505C), Office of Pesticide Programs, McConnell. 1964. The metabolism of toxicity testing showed no significant Environmental Protection Agency, 1200 pelargonate-1-C14 by wheat stem rust systemic reaction. Pennsylvania Ave., NW., Washington, uredospores. Report: NRC8214. National v. The estimated exposures to DC 20460–0001; telephone number: Research Council of Canada, Saskatoon nonanoic acid and other fatty acids from (703) 308–3194; e-mail address: (Saskatchewan) Prairie Regional Lab., direct or indirect addition to food as [email protected]. well as sanitizer uses are well below the May 8, 1964 (Abstract). doses administered in animal studies 2. Haque, Z. U. and K. J. Aryana. SUPPLEMENTARY INFORMATION: that are required to elicit an adverse 2002. Volatiles in lowfat chedder cheese I. General Information effect. Accordingly, EPA concludes that containing commercial fat replacers. there is a reasonable certainty of no Food Sci. Tech. Res. 8(2): 188–190 A. Does this Action Apply to Me? harm to the general population, (Abstract). You may be potentially affected by including infants and children, from 3. Reiche, L., C. Willis, J. Wilkison, S. this action if you are an agricultural aggregate exposure to nonanoic acid (68 Shaw and O. de Lacharriere. 1998. producer, food manufacturer, or FR 7931). Clinical morphology of sodium lauryl pesticide manufacturer Potentially Nonanoic acid has an estimated 1–day sulfate and nonanoic acid irritant patch affected entities may include, but are half-life in soil (RED: Soap Salts; EPA– test reactions at 48h and 96h in 152 not limited to: 738–R–92–015) and the estimated half- subjects. Contact Dermatitis 39(5): 240– • Crop production (NAICS 111) life in the atmosphere is about 1.6 days. 243 (Abstract). • Animal production (NAICS 112)

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• Food manufacturing (NAICS 311) Information claimed as CBI and other submitted within the specified comment • Pesticide manufacturing (NAICS information whose disclosure is period. Comments received after the 32523) restricted by statute, which is not close of the comment period will be This listing is not intended to be included in the official public docket, marked ‘‘late.’’ EPA is not required to exhaustive, but rather provides a guide will not be available for public viewing consider these late comments. If you for readers regarding entities likely to be in EPA’s electronic public docket. EPA’s wish to submit CBI or information that affected by this action. Other types of policy is that copyrighted material will is otherwise protected by statute, please entities not listed in this unit could also not be placed in EPA’s electronic public follow the instructions in Unit I.D. Do be affected. The North American docket but will be available only in not use EPA Dockets or e-mail to submit Industrial Classification System printed, paper form in the official public CBI or information protected by statute. (NAICS) codes have been provided to docket. To the extent feasible, publicly 1. Electronically. If you submit an assist you and others in determining available docket materials will be made electronic comment as prescribed in this whether this action might apply to available in EPA’s electronic public unit, EPA recommends that you include certain entities. If you have any docket. When a document is selected your name, mailing address, and an e- questions regarding the applicability of from the index list in EPA Dockets, the mail address or other contact this action to a particular entity, consult system will identify whether the information in the body of your the person listed under FOR FURTHER document is available for viewing in comment. Also include this contact INFORMATION CONTACT. EPA’s electronic public docket. information on the outside of any disk B. How Can I Get Copies of this Although not all docket materials may or CD ROM you submit, and in any Document and Other Related be available electronically, you may still cover letter accompanying the disk or Information? access any of the publicly available CD ROM. This ensures that you can be docket materials through the docket identified as the submitter of the 1. Docket. EPA has established an facility identified in Unit I.B. EPA official public docket for this action comment and allows EPA to contact you intends to work towards providing in case EPA cannot read your comment under docket identification (ID) number electronic access to all of the publicly OPP–2004–0044. The official public due to technical difficulties or needs available docket materials through further information on the substance of docket consists of the documents EPA’s electronic public docket. specifically referenced in this action, your comment. EPA’s policy is that EPA For public commenters, it is will not edit your comment, and any any public comments received, and important to note that EPA’s policy is other information related to this action. identifying or contact information that public comments, whether provided in the body of a comment will Although a part of the official docket, submitted electronically or in paper, the public docket does not include be included as part of the comment that will be made available for public is placed in the official public docket, Confidential Business Information (CBI) viewing in EPA’s electronic public and made available in EPA’s electronic or other information whose disclosure is docket as EPA receives them and public docket. If EPA cannot read your restricted by statute. The official public without change, unless the comment comment due to technical difficulties docket is the collection of materials that contains copyrighted material, CBI, or and cannot contact you for clarification, is available for public viewing at the other information whose disclosure is EPA may not be able to consider your Public Information and Records restricted by statute. When EPA comment. Integrity Branch (PIRIB), Rm. 119, identifies a comment containing Crystal Mall #2, 1921 Jefferson Davis copyrighted material, EPA will provide i. EPA Dockets. Your use of EPA’s Hwy., Arlington, VA. This docket a reference to that material in the electronic public docket to submit facility is open from 8:30 a.m. to 4 p.m., version of the comment that is placed in comments to EPA electronically is Monday through Friday, excluding legal EPA’s electronic public docket. The EPA’s preferred method for receiving holidays. The docket telephone number entire printed comment, including the comments. Go directly to EPA Dockets is (703) 305–5805. copyrighted material, will be available at http://www.epa.gov/edocket/, and 2. Electronic access. You may access in the public docket. follow the online instructions for this Federal Register document Public comments submitted on submitting comments. Once in the electronically through the EPA Internet computer disks that are mailed or system, select ‘‘search,’’ and then key in under the ‘‘Federal Register’’ listings at delivered to the docket will be docket ID number OPP–2004–0044. The http://www.epa.gov/fedrgstr/. transferred to EPA’s electronic public system is an ‘‘anonymous access’’ An electronic version of the public docket. Public comments that are system, which means EPA will not docket is available through EPA’s mailed or delivered to the docket will be know your identity, e-mail address, or electronic public docket and comment scanned and placed in EPA’s electronic other contact information unless you system, EPA Dockets. You may use EPA public docket. Where practical, physical provide it in the body of your comment. Dockets at http://www.epa.gov/edocket/ objects will be photographed, and the ii. E-mail. Comments may be sent by to submit or view public comments, photograph will be placed in EPA’s e-mail to [email protected], access the index listing of the contents electronic public docket along with a Attention: Docket ID Number OPP– of the official public docket, and to brief description written by the docket 2004–0044. In contrast to EPA’s access those documents in the public staff. electronic public docket, EPA’s e-mail docket that are available electronically. system is not an ‘‘anonymous access’’ Although not all docket materials may C. How and To Whom Do I Submit system. If you send an e-mail comment be available electronically, you may still Comments? directly to the docket without going access any of the publicly available You may submit comments through EPA’s electronic public docket, docket materials through the docket electronically, by mail, or through hand EPA’s e-mail system automatically facility identified in Unit I.B.1. Once in delivery/courier. To ensure proper captures your e-mail address. E-mail the system, select ‘‘search,’’ then key in receipt by EPA, identify the appropriate addresses that are automatically the appropriate docket ID number. docket ID number in the subject line on captured by EPA’s e-mail system are Certain types of information will not the first page of your comment. Please included as part of the comment that is be placed in the EPA Dockets. ensure that your comments are placed in the official public docket, and

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made available in EPA’s electronic E. What Should I Consider as I Prepare pesticide chemical residues or an public docket. My Comments for EPA? explanation of why no such method is iii. Disk or CD ROM. You may submit You may find the following needed. comments on a disk or CD ROM that suggestions helpful for preparing your Interregional Research Project Number you mail to the mailing address comments: 4 (IR-4) identified in Unit I.C.2. These electronic 1. Explain your views as clearly as PP 3E6636, 3E6741, and 3E6747 submissions will be accepted in possible. WordPerfect or ASCII file format. Avoid 2. Describe any assumptions that you EPA has received pesticide petitions the use of special characters and any used. (3E6636, 3E6741, and 3E6747) from IR- 3. Provide copies of any technical form of encryption. 4, 681 U.S. Highway 1 South, North information and/or data you used that Brunswick, NJ 08902–3390 proposing, 2. By mail. Send your comments to: support your views. Public Information and Records 4. If you estimate potential burden or pursuant to section 408(d) of the Federal Integrity Branch (PIRIB) (7502C), Office costs, explain how you arrived at the Food, Drug, and Cosmetic Act (FFDCA), of Pesticide Programs (OPP), estimate that you provide. 21 U.S.C. 346a(d), to amend 40 CFR 180.511 by establishing tolerances for Environmental Protection Agency, 1200 5. Provide specific examples to residues of the insecticide, buprofezin, Pennsylvania Ave., NW., Washington, illustrate your concerns. 6. Make sure to submit your (2-tert-butylimino-3- isopropyl-5- DC 20460–0001, Attention: Docket ID phenyl-1,3,5-thiadiazinan-4-one) in or Number OPP–2004–0044. comments by the deadline in this notice. on the raw agricultural commodities: 3. By hand delivery or courier. Deliver 7. To ensure proper receipt by EPA, Fruit, pome, group 11, except apple and your comments to: Public Information be sure to identify the docket ID number apple, pomace at 4.0 parts per million and Records Integrity Branch (PIRIB), assignedto this action in the subject line (ppm) (PP 3E6636), apple at 1.2 ppm Office of Pesticide Programs (OPP), on the first page of your response. You (PP 3E6636), apple, pomace at 2.5 ppm Environmental Protection Agency, Rm. may also provide thename, date, and (PP 3E6636), peach, apricot, and 119, Crystal Mall #2, 1921 Jefferson Federal Register citation. nectarine at 3.0 ppm (PP 3E6741), and Davis Hwy., Arlington, VA, Attention: avocado, papaya, star apple, black II. What Action is the Agency Taking? Docket ID Number OPP–2004–0044. sapote, mango, sapodilla, canistel, Such deliveries are only accepted EPA has received a pesticide petition mamey sapote, sugar apple, cherimoya, during the docket’s normal hours of as follows proposing the establishment atemoya, custard apple, ilama, soursop, operation as identified in Unit I.B.1. and/or amendment of regulations for biriba, guava, feijoa, jaboticaba, wax residues of a certain pesticide chemical jambu, starfruit, passionfruit, and D. How Should I Submit CBI to the in or on various food commodities acerola at 0.30 ppm (PP 3E6747). EPA Agency? under section 408 of the Federal Food, has determined that the petitions Drug, and Cosmetic Act (FFDCA), 21 contain data or information regarding Do not submit information that you U.S.C. 346a. EPA has determined that the elements set forth in section consider to be CBI electronically this petition contains data or 408(d)(2) of the FFDCA; however, EPA through EPA’s electronic public docket information regarding theelements set has not fully evaluated the sufficiency or by e-mail. You may claim forth in FFDCA section 408(d)(2); of the submitted data at this time or information that you submit to EPA as however, EPA has not fully evaluated whether the data support granting of the CBI by marking any part or all of that the sufficiency of the submitted data at petitions. Additional data may be information as CBI (if you submit CBI this time or whether the data support needed before EPA rules on these on disk or CD ROM, mark the outside granting of the petition. Additional data petitions. This notice includes a of the disk or CD ROM as CBI and then may be needed before EPA rules on the summary of the petitions prepared by identify electronically within the disk or petition. Nichino America, Incorporated, 4550 CD ROM the specific information that is New Linden Hill Road, Suite 501, List of Subjects CBI). Information so marked will not be Wilmington, DE 19808. Environmental protection, disclosed except in accordance with A. Residue Chemistry procedures set forth in 40 CFR part 2. Agricultural commodities, Feed additives, Food additives, Pesticides 1. Plant metabolism. The plant In addition to one complete version of and pests, Reporting and recordkeeping the comment that includes any metabolism of buprofezin is adequately requirements. understood for the pupose of the information claimed as CBI, a copy of proposed tolerances. the comment that does not contain the Dated: March 4, 2004. information claimed as CBI must be Lois Rossi, 2. Analytical method. The proposed analytical method involves extraction, submitted for inclusion in the public Director, Registration Division, Office of docket and EPA’s electronic public Pesticide Programs. partition, clean-up and detection of docket. If you submit the copy that does residues by gas chromatography using Summary of Petitions nitrogen phosphorous detection. not contain CBI on disk or CD ROM, mark the outside of the disk or CD ROM The petitioner summary of the 3. Magnitude of residues. Residue clearly that it does not contain CBI. pesticide petitions is printed below as data has been submitted for fruit, pome, Information not marked as CBI will be required by FFDCA section 408(d)(3). group 11, except apple and apple, included in the public docket and EPA’s The summary of the petitions is pomace; apple; apple, pomace; peach, prepared by the petitioner and apricot, and nectarine; and avocado, electronic public docket without prior represents the view of the petitioner. papaya, star apple, black sapote, mango, notice. If you have any questions about The petition summary announces the sapodilla, canistel, mamey sapote, sugar CBI or the procedures for claiming CBI, availability of a description of the apple, cherimoya, atemoya, custard please consult the person listed under analytical methods available to EPA for apple, ilama, soursop, biriba, guava, FOR FURTHER INFORMATION CONTACT. the detection and measurement of the feijoa, jaboticaba, wax jambu, starfruit,

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passionfruit, and acerola. The requested the phenyl ring is also in operation. vegetable, cucurbit. These tolerances are tolerances are adequately supported. Similarly in hens, the identified set to expire on 12/31/04. Other metabolites were derived from additional time-limited tolerances B. Toxicological Profile degradation of the heterocyclic ring include banana; cotton, gin byproducts; An assessment of the toxic effects either with (BF13) or without (BF9 and cotton, undelinted seed; and tomato. caused by buprofezin is discussed in BF12) phenyl ring hydroxylation. No The expiration date for these tolerances Unit III. A. and Unit III. B. of the single unidentified compound is 12/31/05. Federal Register dated June 25, 2003 (68 accounted for more than 6% of the total i. Food—a. Acute exposure. Acute FR 37765) (FRL–7310–7). residue in any animal tissue or dietary risk assessments are performed 1. Animal metabolism. The commodity, with the exception of a for a food-use pesticide if a toxicological metabolism of buprofezin has been component comprising 8.7% of egg study has indicated the possibility of an extensively studied in various species of white. The total residue in egg white effect of concern occurring as a result of animals and fish. Buprofezin has several was, however, only 0.02 ppm even at a 1-day or single exposure. The Dietary groups that can metabolize in a variety this highly exaggerated dose rate. Exposure Evaluation Model (DEEMTM) of ways thus potentially producing a iii. Metabolism in fish. Analysis of analysis evaluated the individual food very large number of metabolites. fish tissues, following a consumption as reported by Indeed, extensive metabolism to many bioaccumulation study, found a much respondents in the United States minor metabolites was observed in all simpler metabolic profile. Buprofezin Department of Agriculture (USDA) the animal species. Metabolism in fish was present in both edible and non- 1994-1998 nationwide Continuing was, however, much more limited and edible tissues, but the principle Surveys of Food Intake by Individuals clearly defined. Although not all metabolites were polar conjugates of (CSFII) and accumulated exposure to metabolic intermediates have been BF4. Trace levels of BF12 were also the chemical for each commodity. As a detected in all the species, the major detected. result, the following assumptions were routes of metabolism have been 3. Endocrine disruption. The only made for the acute exposure identified in animals and fish, and a effect noted on endocrine organs was an assessments: The acute dietary analysis consistent pattern is observed increased incidence of follicular cell assumed tolerance level residues, DEEM throughout these species. hypertrophy and C-cell hyperplasia of (ver. 7) default processing factors, and 2. Metabolite toxicology—i. the thyroid gland in rats administered 100% crop treated for all registered and Metabolism in rats. The major buprofezin at dietary concentrations of proposed commodities (Tier I). metabolite found in rat excreta was 2,000 ppm for 24 months. Buprofezin b. Chronic exposure. Chronic dietary parent buprofezin in addition to several also caused mild to moderate exposure was estimated using the 1994- compounds formed after extensive hepatotoxic effects at this dietary 98 CSFII and DEEM7. For all crops, metabolism. Whereas plant metabolism concentration. Nichino America, Inc. 100% crop-treated was used. Tolerance appeared restricted mainly to oxidation believes that the effect on the thyroid level residues and default processing of the tertiary butyl group, oxidation of most likely resulted from increased factors were used for meat and milk, the butyl group and hydroxylation of turnover of T3/T4 in the liver with a succulent bean, cucurbit, almond, the phenyl ring were both observed in resultant rise in TSH secretion (due to acerola, avocado, carambola, cherimoya, rats. Oxidation of the t-butyl group the hepatotoxicity). The rat is known to cotton, genip, guava, longan fruit, proceeded beyond an alcohol to an acid be much more susceptible than humans lychee, mango, papaya, passion fruit, and was accompanied by ring opening. to these effects due to the very rapid pistachio, sapodilla, soursop, and sugar The most extensively metabolized turnover of thyroxine in the blood in apple. Average field trial data and compound identified in rats was BF23 rats (12 hours vs. about 5-9 days in experimental processing factors (when (acetylated p-aminophenol). humans). Therefore, the thyroid available) were used for banana ii. Metabolism in ruminants and hens. pathological changes which have been (including plantains), grape, lettuce, Residue levels were low (0.05 ppm) in noted following administration of high citrus, pome fruit, and peaches all ruminant and poultry tissues and doses of buprofezin are considered to be (including apricots and nectarines). For commodities, following treatment at of minimal relevance to human risk tomato, tolerance level residues and exaggerated rates (approximately 20x assessment, particularly considering the experimental processing factors, were and 7,500x the anticipated dietary low levels of buprofezin to which used. burden, respectively). The only humans are likely to be exposed. ii. Drinking water. The residue of exceptions were cow liver (1.21 ppm), concern in drinking water was cow kidney (0.41 ppm), hen liver (0.15 C. Aggregate Exposure determined to be buprofezin. There are ppm), and egg yolk (0.11 ppm). 1. Dietary exposure. Tolerances have no established maximum contaminant Extensive metabolism was observed in been established (40 CFR 180.511) for levels or health advisory levels for both species with a large number of the residues of buprofezin, in or on, the residues of buprofezin in drinking minor metabolites being produced. The following raw agricultural commodities: water. Based on the FIRST and SCI- principal metabolites identified in the Almond; banana; bean, snap, succulent; GROW models, the estimated cow were BF2 and BF23, indicating that cattle, fat; cattle, meat byproducts; environmental concentrations (EECs) of the major pathway of degradation in cattle, liver; citrus, oil; citrus, dried buprofezin for acute exposures are ruminants is hydroxylation of the pulp; fruit, citrus; goat, fat; goat, meat estimated to be 102 parts per billion phenyl ring followed by opening and byproducts; goat, liver; grape; grape, (ppb) for surface water and 0.08 ppb for degradation of the heterocyclic ring. The raisin; hog, fat; hog, meat byproducts; ground water. The EECs for chronic identification of trace levels of BF13 hog, liver; horse, fat; horse, meat surface water and ground water confirms this pathway. As in rats, BF23 byproducts; horse, liver; logan; lychee; exposures are estimated to be 34 ppb, was the most extensively metabolized milk; pistachio; pulasan; rambutan; and 0.08 ppb, respectively. compound identified. Trace levels of sheep, fat; sheep, meat byproducts; 2. Non-dietary exposure. The term BF12 were also detected. This indicates sheep, liver; and spanish lime. There are residential exposure is used in this that the parallel pathway of heterocyclic also time-limited tolerances established document to refer to non-occupational, ring opening without hydroxylation of for lettuce, head; lettuce, leaf; and non-dietary exposure (e.g. for lawn and

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garden pest control, indoor pest control, comparing them to the EECs for surface SUMMARY: This notice announces the termiticides, and flea and tick control and ground water, EPA does not expect initial filing of pesticide petitions on pets). Buprofezin is not registered for the aggregate exposure to exceed 100% proposing the establishment of use on any sites that would result in of the aPAD. regulations for residues of a certain residential exposure. ii. Chronic risk. Based on the pesticide chemical in or on various food toxicology data base and available D. Cumulative Effects commodities. information on anticipated residues, the DATES: Comments, identified by docket Section 408(b)(2)(D)(v) requires that chronic dietary exposure to the U.S. ID number OPP–2004–0046, must be the Agency must consider ‘‘available population (total) was estimated as received on or before April 16, 2004. information’’ concerning the cumulative 0.001464 mg/kg bwt/day, and was 14.6 ADDRESSES: Comments may be effects of a particular pesticide’s % of the estimated chronic population submitted electronically, by mail, or residues and ‘‘other substances that adjusted dose (cPAD). Exposure to through hand delivery/courier. Follow have a common mechanism of toxicity.’’ potential residues in drinking water is the detailed instructions as provided in Available information in this context expected to be negligible, as DWLOCs of Unit I. of the SUPPLEMENTARY include not only toxicity, chemistry, 299 ppb are substantially higher than INFORMATION. and exposure data, but also scientific modeled acute and long-term EECs. policies and methodologies for Based on these assessments, it can be FOR FURTHER INFORMATION CONTACT: understanding common mechanisms of concluded that there is reasonable Shaja R. Brothers, Registration Division toxicity and conducting cumulative risk certainty of no harm to the U.S. (7505C), Office of Pesticide Programs, assessments. For most pesticides, population or any population subgroup Environmental Protection Agency, 1200 although the Agency has some from exposure to buprofezin. Pennsylvania Ave., NW., Washington, information in its files that may turn out 2. Infants and children. Chronic DC 20460–0001; telephone number: to be helpful in eventually determining exposure to children ages 1-2, the (703) 308–3194; e-mail address: whether a pesticide shares a common highest exposed population subgroup, [email protected]. mechanism of toxicity with any other was 0.005444 mg/kg bwt/day (54.4 % of SUPPLEMENTARY INFORMATION: substances, EPA does not at this time the estimated cPAD). Exposure to have the methodologies to resolve the potential residues in drinking water is I. General Information complex scientific issues concerning expected to be negligible, as DWLOCs A. Does this Action Apply to Me? common mechanism of toxicity in a are substantially higher than modeled meaningful way. acute and long-term EECs. EPA has You may be potentially affected by At the present time, there are determined that reliable data support this action if you are an agricultural insufficient data available to allow using the standard margin of exposure producer, food manufacturer, or Nichino America, Inc. to properly (MOE) and uncertainty factor (100 for pesticide manufacturer Potentially evaluate the potential for cumulative combined interspecies and intraspecies affected entities may include, but are effects with other pesticides to which an variability) for buprofezin and that an not limited to: individual may be exposed. For the • Crop production (NAICS 111); additional safety factor of 10 is not • purposes of this assessment, therefore, necessary to be protective of infants and Animal production (NAICS 112); Nichino America, Inc. has assumed that • Food manufacturing (NAICS 311); children. The acute EEC of 102 ppb is • buprofezin does not have a common considerably less than 59,076 ppb. For Pesticide manufacturing (NAICS). mechanism of toxicity with any other the chronic assessment, the children 1- This listing is not intended to be registered pesticides. Therefore, only 2 years old subpopulation generated the exhaustive, but rather provides a guide exposure from buprofezin is being lowest chronic DWLOC of for readers regarding entities likely to be addressed at this time. approximately 46 ppb. Thus, the affected by this action. Other types of entities not listed in this unit could also E. Safety Determination chronic DWLOC of 46 ppb is higher than the chronic EEC of 34 ppb. be affected. The North American 1. U.S. population—i. Acute risk. To Industrial Classification System estimate acute aggregate exposure risk, F. International Tolerances (NAICS) codes have been provided to the Agency combined the high-end Canada, Codex, and Mexico do not assist you and others in determining value from food and water, and have maximum residue limits for whether this action might apply to compared it to the acute population residues of buprofezin in/on the certain entities. If you have any adjusted dose (aPAD). Using the proposed crops. Therefore, questions regarding the applicability of exposure assumptions discussed in this harmonization is not an issue. this action to a particular entity, consult unit for acute exposure, the acute the person listed under FOR FURTHER dietary exposure from food to [FR Doc. 04–5513 Filed 3–16–04; 8:45 am] INFORMATION CONTACT. buprofezin for females 13–49 years (no BILLING CODE 6560–50–S endpoint was identified for the general B. How Can I Get Copies of this population including infants and Document and Other Related children). The acute dietary exposure ENVIRONMENTAL PROTECTION Information? from buprofezin will occupy 1.54% of AGENCY 1. Docket. EPA has established an the aPAD. In addition, there is potential [OPP–2004–0046; FRL–7347–3] official public docket for this action for acute dietary exposure to buprofezin under docket identification (ID) number in drinking water. Acute Drinking Water Fludioxonil; Notice of Filing a Pesticide OPP–2004–0046. The official public Levels of Comparison (DWLOC) were Petition to Establish a Tolerance for a docket consists of the documents calculated based on an aPAD of 2.0 Certain Pesticide Chemical in or on specifically referenced in this action, milligrams/ kilogram/day. For the acute Food any public comments received, and assessment, the females (13–49 years) AGENCY: Environmental Protection other information related to this action. subpopulation generated an acute Agency (EPA). Although a part of the official docket, DWLOC of approximately 59,076 ppb. the public docket does not include ACTION: Notice. After calculating DWLOCs and Confidential Business Information (CBI)

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or other information whose disclosure is docket as EPA receives them and public docket. If EPA cannot read your restricted by statute. The official public without change, unless the comment comment due to technical difficulties docket is the collection of materials that contains copyrighted material, CBI, or and cannot contact you for clarification, is available for public viewing at the other information whose disclosure is EPA may not be able to consider your Public Information and Records restricted by statute. When EPA comment. Integrity Branch (PIRIB), Rm. 119, identifies a comment containing i. EPA Dockets. Your use of EPA’s Crystal Mall #2, 1921 Jefferson Davis copyrighted material, EPA will provide electronic public docket to submit Hwy., Arlington, VA. This docket a reference to that material in the comments to EPA electronically is facility is open from 8:30 a.m. to 4 p.m., version of the comment that is placed in EPA’s preferred method for receiving Monday through Friday, excluding legal EPA’s electronic public docket. The comments. Go directly to EPA Dockets holidays. The docket telephone number entire printed comment, including the at http://www.epa.gov/edocket/, and is (703) 305–5805. copyrighted material, will be available follow the online instructions for 2. Electronic access. You may access in the public docket. submitting comments. Once in the this Federal Register document Public comments submitted on system, select ‘‘search,’’ and then key in electronically through the EPA Internet computer disks that are mailed or docket ID number OPP–2004–0046. The under the ‘‘Federal Register’’ listings at delivered to the docket will be system is an ‘‘anonymous access’’ http://www.epa.gov/fedrgstr/. transferred to EPA’s electronic public system, which means EPA will not An electronic version of the public docket. Public comments that are know your identity, e-mail address, or docket is available through EPA’s mailed or delivered to the docket will be other contact information unless you electronic public docket and comment scanned and placed in EPA’s electronic provide it in the body of your comment. system, EPA Dockets. You may use EPA public docket. Where practical, physical ii. E-mail. Comments may be sent by Dockets at http://www.epa.gov/edocket/ objects will be photographed, and the e-mail to [email protected], to submit or view public comments, photograph will be placed in EPA’s Attention: Docket ID Number OPP– access the index listing of the contents electronic public docket along with a 2004–0046. In contrast to EPA’s of the official public docket, and to brief description written by the docket electronic public docket, EPA’s e-mail access those documents in the public staff. system is not an ‘‘anonymous access’’ docket that are available electronically. system. If you send an e-mail comment C. How and To Whom Do I Submit Although not all docket materials may directly to the docket without going Comments? be available electronically, you may still through EPA’s electronic public docket, access any of the publicly available You may submit comments EPA’s e-mail system automatically docket materials through the docket electronically, by mail, or through hand captures your e-mail address. E-mail facility identified in Unit I.B.1. Once in delivery/courier. To ensure proper addresses that are automatically the system, select ‘‘search,’’ then key in receipt by EPA, identify the appropriate captured by EPA’s e-mail system are the appropriate docket ID number. docket ID number in the subject line on included as part of the comment that is Certain types of information will not the first page of your comment. Please placed in the official public docket, and be placed in the EPA Dockets. ensure that your comments are made available in EPA’s electronic Information claimed as CBI and other submitted within the specified comment public docket. information whose disclosure is period. Comments received after the iii. Disk or CD ROM. You may submit restricted by statute, which is not close of the comment period will be comments on a disk or CD ROM that included in the official public docket, marked ‘‘late.’’ EPA is not required to you mail to the mailing address will not be available for public viewing consider these late comments. If you identified in Unit I.C.2. These electronic in EPA’s electronic public docket. EPA’s wish to submit CBI or information that submissions will be accepted in policy is that copyrighted material will is otherwise protected by statute, please WordPerfect or ASCII file format. Avoid not be placed in EPA’s electronic public follow the instructions in Unit I.D. Do the use of special characters and any docket but will be available only in not use EPA Dockets or e-mail to submit form of encryption. printed, paper form in the official public CBI or information protected by statute. 2. By mail. Send your comments to: docket. To the extent feasible, publicly 1. Electronically. If you submit an Public Information and Records available docket materials will be made electronic comment as prescribed in this Integrity Branch (PIRIB) (7502C), Office available in EPA’s electronic public unit, EPA recommends that you include of Pesticide Programs (OPP), docket. When a document is selected your name, mailing address, and an e- Environmental Protection Agency, 1200 from the index list in EPA Dockets, the mail address or other contact Pennsylvania Ave., NW., Washington, system will identify whether the information in the body of your DC 20460–0001, Attention: Docket ID document is available for viewing in comment. Also include this contact Number OPP–2004–0046. EPA’s electronic public docket. information on the outside of any disk 3. By hand delivery or courier. Deliver Although not all docket materials may or CD ROM you submit, and in any your comments to: Public Information be available electronically, you may still cover letter accompanying the disk or and Records Integrity Branch (PIRIB), access any of the publicly available CD ROM. This ensures that you can be Office of Pesticide Programs (OPP), docket materials through the docket identified as the submitter of the Environmental Protection Agency, Rm. facility identified in Unit I.B. EPA comment and allows EPA to contact you 119, Crystal Mall #2, 1921 Jefferson intends to work towards providing in case EPA cannot read your comment Davis Hwy., Arlington, VA, Attention: electronic access to all of the publicly due to technical difficulties or needs Docket ID Number OPP–2004–0046. available docket materials through further information on the substance of Such deliveries are only accepted EPA’s electronic public docket. your comment. EPA’s policy is that EPA during the docket’s normal hours of For public commenters, it is will not edit your comment, and any operation as identified in Unit I.B.1. important to note that EPA’s policy is identifying or contact information that public comments, whether provided in the body of a comment will D. How Should I Submit CBI to the submitted electronically or in paper, be included as part of the comment that Agency? will be made available for public is placed in the official public docket, Do not submit information that you viewing in EPA’s electronic public and made available in EPA’s electronic consider to be CBI electronically

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through EPA’s electronic public docket forth in FFDCA section 408(d)(2); not fully evaluated the sufficiency of the or by e-mail. You may claim however, EPA has not fully evaluated submitted data at this time or whether information that you submit to EPA as the sufficiency of the submitted data at the data supports granting of the CBI by marking any part or all of that this time or whether the data support petitions. Additional data may be information as CBI (if you submit CBI granting of the petition. Additional data needed before EPA rules on the on disk or CD ROM, mark the outside may be needed before EPA rules on the petitions. This notice includes a of the disk or CD ROM as CBI and then petition. summary of petitions prepared by identify electronically within the disk or Syngenta Crop Protection, Inc., List of Subjects CD ROM the specific information that is Greensboro, NC 27409. CBI). Information so marked will not be Environmental protection, A. Residue Chemistry disclosed except in accordance with Agricultural commodities, Feed procedures set forth in 40 CFR part 2. additives, Food additives, Pesticides 1. Plant metabolism. The metabolism In addition to one complete version of and pests, Reporting and recordkeeping of fludioxonil is adequately understood the comment that includes any requirements. for the purpose of the proposed information claimed as CBI, a copy of Dated: March 4, 2004. tolerances. 2. Analytical method. Syngenta has the comment that does not contain the Lois Rossi, information claimed as CBI must be developed and validated analytical Director, Registration Division, Office of methodology for enforcement purposes. submitted for inclusion in the public Pesticide Programs. docket and EPA’s electronic public This method (Syngenta Crop Protection docket. If you submit the copy that does Summary of Petition Method AG-597B) has passed an Agency not contain CBI on disk or CD ROM, The petitioner summary of the petition method validation for several mark the outside of the disk or CD ROM pesticide petitions is printed below as commodities, and is currently the clearly that it does not contain CBI. required by FFDCA section 408(d)(3). enforcement method for fludioxonil. Information not marked as CBI will be The summary of the petitions was This method has also been forwarded to included in the public docket and EPA’s prepared by the petitioner and the Food and Drug Administration for electronic public docket without prior represents the view of the petitioner. inclusion into PAM II. An extensive notice. If you have any questions about The petition summary announces the database of method validation data CBI or the procedures for claiming CBI, availability of a description of the using this method on various crop please consult the person listed under analytical methods available to EPA for commodities is available. FOR FURTHER INFORMATION CONTACT. the detection and measurement of the 3. Magnitude of residues. Complete pesticide chemical residues or an residue data for the crops requested in E. What Should I Consider as I Prepare this filing have been submitted. The My Comments for EPA? explanation of why no such method is needed. requested tolerances are adequately You may find the following supported. Interregional Research Project Number suggestions helpful for preparing your B. Toxicological Profile comments: 4 (IR-4) An assessment of toxic effects caused 1. Explain your views as clearly as 3E6551, 3E6639, 3E6701, and 3E6803 possible. by fludioxonil is discussed in Unit III. 2. Describe any assumptions that you EPA has received pesticide petitions A. and Unit III. B. of the Federal used. (3E6551, 3E6639, 3E6701, and 3E6803) Register dated August 2, 2002 (67 FR 3. Provide copies of any technical from IR-4, 681 U.S. Highway #1 South, 50354) (FRL–7188–7). information and/or data you used that North Brunswick, NJ 08902–3390 1. Animal metabolism. The support your views. proposing, pursuant to section 408(d) of metabolism of fludioxonil in rats is 4. If you estimate potential burden or FFDCA, 21 U.S.C. 346a(d), to amend 40 adequately understood. costs, explain how you arrived at the CFR part 180.516 by establishing 2. Metabolite toxicology. The residues estimate that you provide. tolerances for residues of fludioxonil, 4- of concern for tolerance setting purposes 5. Provide specific examples to (2,2-difluoro-1,3-benzodioxol-4-yl)-H- is the parent compound. Consequently, illustrate your concerns. pyrrole-3-carbonitrile in or on the there is no additional concern for 6. Make sure to submit your following raw agricultural commodities: toxicity of metabolites. comments by the deadline in this 1. PP 3E6551 proposes a tolerance for 3. Endocrine disruption. Fludioxonil notice. kiwifruit at 20 parts per million (ppm). does not belong to a class of chemicals 7. To ensure proper receipt by EPA, 2. PP 3E6639 proposes a tolerance for known for having adverse effects on the be sure to identify the docket ID number leafy greens subgroup 4A, except endocrine system. No estrogenic effects assigned to this action in the subject spinach at 30 ppm. have been observed in the various short- line on the first page of your response. 3. PP 3E6701 proposes tolerances and long-term studies conducted with You may also provide the name, date, bean, dry and bean, succulent at 0.4 various mammalian species. and Federal Register citation. ppm. 4. PP 3E6742 proposes tolerances for C. Aggregate Exposure II. What Action is the Agency Taking? fruit, pome, group 11 at 5.0 ppm, yam 1. Dietary exposure—i. Food. Tier III EPA has received a pesticide petition at 8.0 ppm, and melon subgroup 9A at acute and chronic dietary exposure as follows proposing the establishment 0.03 ppm. evaluations were made using the Dietary and/or amendment of regulations for 5. PP 3E6803 proposes tolerances for Exposure Evaluation Model (DEEMTM), residues of a certain pesticide chemical citrus, crop group 10 at 10 ppm; citrus, version 7.87 from Exponent. Empirically in or on various food commodities dried pulp at 20 ppm, citrus, oil at 500 derived processing factors for apple under section 408 of the Federal Food, ppm, and pomegranate at 2.0 ppm. juice (0.09X), apple pomace (6.77X) and Drug, and Cosmetic Act (FFDCA), 21 EPA has determined that the petitions grape juice (0.36X) were used in these U.S.C. 346a. EPA has determined that contain data or information regarding assessments. The apple juice processing this petition contains data or the elements set forth in section factor was used as a surrogate for pear information regarding the elements set 408(d)(2) of FFDCA; however, EPA has juice. All other processing factors used

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the DEEMTM defaults. All consumption have a common mechanism of toxicity’’. Based on the completeness and data for these assessments was taken EPA does not have, at this time, reliability of the toxicity data supporting from the USDA’s Continuing Survey of available data to determine whether these petitions, and the results of the Food Intake by individuals (CSFII) with fludioxonil has a common mechanism above exposure calculations, Syngenta the 1994–96 consumption database and of toxicity with other substances or how believes that there is a reasonable the Supplemental CSFII children’s to include this pesticide in a cumulative certainty that no harm will result from survey (1998) consumption database. risk assessment. For the purposes of this aggregate exposure to residues arising These exposure assessments included tolerance action, EPA has not assumed from all current and proposed all registered uses and pending uses on that fludioxonil has a common fludioxonil uses, including anticipated leafy greens subgroup 4A, except mechanism of toxicity with other dietary exposure from food, water, and spinach, beans, dry and succulent, kiwi substances. all other types of non-occupational fruit, citrus crop group, citrus, dried E. Safety Determination exposures. pulp, citrus, oil, pomegranate, pome 1. U.S. population—i. Acute: For the 2. Infants and children. No additional fruit group 11, yam, and melon FQPA safety factor was applied. subgroup 9A. Secondary residues in purpose of the aggregate risk assessment, the exposure value was Syngenta has considered the potential animal commodities were estimated aggregate exposure from food, water and based on theoretical worst-case, yet expressed in terms of margin of non-occupational exposure routes and nutritionally adequate animal diets and exposure (MOE), which was calculated concluded that aggregate exposure is not transfer information from feeding by dividing the no observable adverse expected to exceed 100% of the chronic studies. effect level (NOAEL) by the exposure for ii. Drinking water. Fludioxonil rapidly each population subgroup. In addition, reference dose and that there is a degrades via photolysis on the soil exposure was expressed as a percent of reasonable certainty that no harm will surface and in water. The half-lives are the acute reference dose (%aRfD). Acute result to infants and children from the 1 day and 10 days, respectively. This exposure to the females 13–50 years aggregate exposure to fludioxonil. potential for rapid degradation reduces subpopulation resulted in a MOE of [FR Doc. 04–5514 Filed 3–16–04; 8:45 am] the potential for ground water or surface 1,919 (5.2% of the acute RfD of 1.0 BILLING CODE 6560–50–S water exposure. Fludioxonil Kocs range milligrams/kilograms - bodyweight/day from 991 to 2,440 indicating a relatively (mg/kg-bw/day)). Since the benchmark high affinity for binding to soil. MOE for this assessment was 100 and ENVIRONMENTAL PROTECTION Estimated Environmental since EPA generally has no concern for AGENCY Concentrations (EECs) of fludioxonil in exposures below 100% of the RfD, drinking water were determined for the Syngenta believes that there is a [OPP–2004–0047; FRL–7346–8] highest use rate of fludioxonil (turfgrass reasonable certainty that no harm will use). Screening Concentration in result from dietary (food) exposure to Flumioxazin; Notice of Filing a Ground Water (SCI-GROW) (Version residues arising from the current and Pesticide Petition to Establish a 2.2) was used to determine acute and proposed uses for fludioxonil. Tolerance for a Certain Pesticide chronic EECs in ground water and Food Acute drinking water levels of Chemical in or on Food Quality Protection Act (FQPA) Index comparison (DWLOC) were calculated Reservoir Screening Tool (FIRST) based on an acute populated adjusted AGENCY: Environmental Protection (Version 1.0) was used to determine dose (aPAD) of 1 mg/kg/day. The Agency (EPA). females (13–50 years) subpopulation acute and chronic EECs in surface ACTION: Notice. water. Based on the model outputs, the generated an acute DWLOC of approximately 28,440 ppb. The acute ground water EECs for fludioxonil are SUMMARY: This notice announces the 0.174 parts per billion (ppb) for acute EEC of 70 ppb is considerably less than initial filing of pesticide petitions and chronic exposure. The surface water 28,440 ppb. The chronic and aggregate proposing the establishment of EECs were 70 ppb and 26 ppb for acute risk from fludioxonil residues in food regulations for residues of a certain and chronic exposure, respectively. and drinking water would; therefore, pesticide chemical in or on various food 2. Non-dietary exposure. There is a not be expected to exceed the EPA’s commodities. potential residential post-application level of concern. exposure to adults and children entering ii. Chronic: The chronic exposure to DATES: Comments, identified by docket residential areas treated with the most exposed sub-population ID number OPP–2004–0047, must be fludioxonil. Since the Agency did not (children 1 and 2 years old) resulted in received on or before April 16, 2004. a MOE of 753 (13.3% of the chronic RfD select a short-term endpoint for dermal ADDRESSES: Comments may be of 0.033 mg/kg-bw/day). The chronic exposure, only intermediate dermal submitted electronically, by mail, or dietary exposure analysis (food only) exposures were considered. Based on through hand delivery/courier. Follow indicated that exposure from all the residential use pattern, no long-term the detailed instructions as provided in established and proposed fludioxonil post-application residential exposure is Unit I. of the SUPPLEMENTARY uses would be 13.3% of the chronic RfD expected. INFORMATION. of 0.033 mg/kg-bw/day for the most D. Cumulative Effects sensitive subpopulation, children 1 and FOR FURTHER INFORMATION CONTACT: Cumulative exposure to substances 2 years old. Shaja R. Brothers, Registration Division with a common mechanism of toxicity. Estimated concentrations of (7505C), Office of Pesticide Programs, Section 408(b)(2)(D)(v) requires that, fludioxonil residues in surface and Environmental Protection Agency, 1200 when considering whether to establish, ground water were below the calculated Pennsylvania Ave., NW., Washington, modify, or revoke a tolerance, the acute DWLOC. The children 1 and 2 DC 20460–0001; telephone number: Agency consider ‘‘available years old subpopulation had the lowest (703) 308–3194; e-mail address: information’’ concerning the cumulative chronic DWLOC of approximately 286 [email protected]. effects of a particular pesticide’s ppb, which is considerably higher than residues and ‘‘other substances that the chronic EEC of 26 ppb. SUPPLEMENTARY INFORMATION:

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I. General Information docket that are available electronically. C. How and to Whom Do I Submit Although not all docket materials may Comments? A. Does this Action Apply to Me? be available electronically, you may still You may submit comments You may be potentially affected by access any of the publicly available electronically, by mail, or through hand this action if you are an agricultural docket materials through the docket delivery/courier. To ensure proper producer, food manufacturer, or facility identified in Unit I.B.1. Once in receipt by EPA, identify the appropriate pesticide manufacturer. Potentially the system, select ‘‘search,’’ then key in docket ID number in the subject line on affected entities may include, but are the appropriate docket ID number. the first page of your comment. Please not limited to: Certain types of information will not ensure that your comments are • Crop production (NAICS 111) be placed in the EPA Dockets. submitted within the specified comment • Animal production (NAICS 112) Information claimed as CBI and other period. Comments received after the • Food manufacturing (NAICS 311) information whose disclosure is • close of the comment period will be Pesticide manufacturing (NAICS) restricted by statute, which is not marked ‘‘late.’’ EPA is not required to This listing is not intended to be included in the official public docket, exhaustive, but rather provides a guide will not be available for public viewing consider these late comments. If you for readers regarding entities likely to be in EPA’s electronic public docket. EPA’s wish to submit CBI or information that affected by this action. Other types of policy is that copyrighted material will is otherwise protected by statute, please entities not listed in this unit could also not be placed in EPA’s electronic public follow the instructions in Unit I.D. Do be affected. The North American docket but will be available only in not use EPA Dockets or e-mail to submit Industrial Classification System printed, paper form in the official public CBI or information protected by statute. (NAICS) codes have been provided to docket. To the extent feasible, publicly 1. Electronically. If you submit an assist you and others in determining available docket materials will be made electronic comment as prescribed in this whether this action might apply to available in EPA’s electronic public unit, EPA recommends that you include certain entities. If you have any docket. When a document is selected your name, mailing address, and an e- questions regarding the applicability of from the index list in EPA Dockets, the mail address or other contact this action to a particular entity, consult system will identify whether the information in the body of your the person listed under FOR FURTHER document is available for viewing in comment. Also include this contact INFORMATION CONTACT. EPA’s electronic public docket. information on the outside of any disk or CD ROM you submit, and in any B. How Can I Get Copies of this Although not all docket materials may be available electronically, you may still cover letter accompanying the disk or Document and Other Related CD ROM. This ensures that you can be Information? access any of the publicly available docket materials through the docket identified as the submitter of the 1. Docket. EPA has established an facility identified in Unit I.B. EPA comment and allows EPA to contact you official public docket for this action intends to work towards providing in case EPA cannot read your comment under docket identification (ID) number electronic access to all of the publicly due to technical difficulties or needs OPP–2004–0047. The official public available docket materials through further information on the substance of docket consists of the documents EPA’s electronic public docket. your comment. EPA’s policy is that EPA specifically referenced in this action, For public commenters, it is will not edit your comment, and any any public comments received, and important to note that EPA’s policy is identifying or contact information other information related to this action. that public comments, whether provided in the body of a comment will Although a part of the official docket, submitted electronically or in paper, be included as part of the comment that the public docket does not include will be made available for public is placed in the official public docket, Confidential Business Information (CBI) viewing in EPA’s electronic public and made available in EPA’s electronic or other information whose disclosure is docket as EPA receives them and public docket. If EPA cannot read your restricted by statute. The official public without change, unless the comment comment due to technical difficulties docket is the collection of materials that contains copyrighted material, CBI, or and cannot contact you for clarification, is available for public viewing at the other information whose disclosure is EPA may not be able to consider your Public Information and Records restricted by statute. When EPA comment. Integrity Branch (PIRIB), Rm. 119, identifies a comment containing i. EPA Dockets. Your use of EPA’s Crystal Mall #2, 1921 Jefferson Davis copyrighted material, EPA will provide electronic public docket to submit Hwy., Arlington, VA. This docket a reference to that material in the comments to EPA electronically is facility is open from 8:30 a.m. to 4 p.m., version of the comment that is placed in EPA’s preferred method for receiving Monday through Friday, excluding legal EPA’s electronic public docket. The comments. Go directly to EPA Dockets holidays. The docket telephone number entire printed comment, including the at http://www.epa.gov/edocket/, and is (703) 305–5805. copyrighted material, will be available follow the online instructions for 2. Electronic access. You may access in the public docket. submitting comments. Once in the this Federal Register document Public comments submitted on system, select ‘‘search,’’ and then key in electronically through the EPA Internet computer disks that are mailed or docket ID number OPP–2004–0047. The under the ‘‘Federal Register’’ listings at delivered to the docket will be system is an ‘‘anonymous access’’ http://www.epa.gov/fedrgstr/. transferred to EPA’s electronic public system, which means EPA will not An electronic version of the public docket. Public comments that are know your identity, e-mail address, or docket is available through EPA’s mailed or delivered to the docket will be other contact information unless you electronic public docket and comment scanned and placed in EPA’s electronic provide it in the body of your comment. system, EPA Dockets. You may use EPA public docket. Where practical, physical ii. E-mail. Comments may be sent by Dockets at http://www.epa.gov/edocket/ objects will be photographed, and the e-mail to [email protected], to submit or view public comments, photograph will be placed in EPA’s Attention: Docket ID Number OPP– access the index listing of the contents electronic public docket along with a 2004–0047. In contrast to EPA’s of the official public docket, and to brief description written by the docket electronic public docket, EPA’s e-mail access those documents in the public staff. system is not an ‘‘anonymous access’’

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system. If you send an e-mail comment notice. If you have any questions about The summary may have been edited by directly to the docket without going CBI or the procedures for claiming CBI, EPA if the terminology used was through EPA’s electronic public docket, please consult the person listed under unclear, the summary contained EPA’s e-mail system automatically FOR FURTHER INFORMATION CONTACT. extraneous mateial, or the summary captures your e-mail address. E-mail unintentionally made the reader E. What Should I Consider as I Prepare addresses that are automatically conclude that the findings reflected My Comments for EPA? captured by EPA’s e-mail system are EPA’s position and not the position of included as part of the comment that is You may find the following the petitioner. The petition summary placed in the official public docket, and suggestions helpful for preparing your announces the availability of a made available in EPA’s electronic comments: description of the analytical methods public docket. 1. Explain your views as clearly as available to EPA for the detection and iii. Disk or CD ROM. You may submit possible. measurement of the pesticide chemical comments on a disk or CD ROM that 2. Describe any assumptions that you residues or an explanation of why no you mail to the mailing address used. such method is needed. identified in Unit I.C.2. These electronic 3. Provide copies of any technical submissions will be accepted in information and/or data you used that Interregional Research Project Number WordPerfect or ASCII file format. Avoid support your views. 4 (IR-4) 4. If you estimate potential burden or the use of special characters and any PP 3E6777, 3E6788, and 3E6779 form of encryption. costs, explain how you arrived at the 2. By mail. Send your comments to: estimate that you provide. EPA has received pesticide petitions Public Information and Records 5. Provide specific examples to (PP 3E6777, 3E6788, and 3E6779) from Integrity Branch (PIRIB) (7502C), Office illustrate your concerns. IR-4, 681 U.S. Highway #1 South, North of Pesticide Programs (OPP), 6. Make sure to submit your Brunswick, NJ 08902–3390 proposing, Environmental Protection Agency, 1200 comments by the deadline in this pursuant to section 408(d) of the Pennsylvania Ave., NW., Washington, notice. FFDCA, 21 U.S.C. 346a(d), to amend 40 DC 20460–0001, Attention: Docket ID 7. To ensure proper receipt by EPA, CFR 180.568 by establishing tolerances Number OPP–2004–0047. be sure to identify the docket ID number for residues of flumioxazin, 2-[7-fluoro- 3. By hand delivery or courier. Deliver assigned to this action in the subject 3,4-dihydro-3-oxo-4-(2-propynyl)-2H- your comments to: Public Information line on the first page of your response. 1,4-benzoxazin-6-yl]-4,5,6,7-tetrahydro- and Records Integrity Branch (PIRIB), You may also provide the name, date, 1H-isoindole-1,3(2H)-dione, in or on the Office of Pesticide Programs (OPP), and Federal Register citation. following raw agricultural commodities: Environmental Protection Agency, Rm. II. What Action is the Agency Taking? 1. PP 3E6777 proposes tolerances for 119, Crystal Mall #2, 1921 Jefferson peppermint, tops; peppermint, oil; Davis Hwy., Arlington, VA, Attention: EPA has received a pesticide petition spearmint, tops; and spearmint, oil at Docket ID Number OPP–2004–0047. as follows proposing the establishment 0.04 parts per million (ppm). Such deliveries are only accepted and/or amendment of regulations for 2. PP 3E6788 proposes tolerances for during the docket’s normal hours of residues of a certain pesticide chemical onion, dry bulb; garlic, bulb; and operation as identified in Unit I.B.1. in or on various food commodities shallot, bulb at 0.02 ppm. under section 408 of the Federal Food, 3. PP 3E6779 proposes tolerances for D. How Should I Submit CBI to the Drug, and Cosmetic Act (FFDCA), 21 vegetable, tuberous and corm subgroup Agency? U.S.C. 346a. EPA has determined that 1C at 0.02 ppm. Do not submit information that you this petition contains data or EPA has determined that the petitions consider to be CBI electronically information regarding the elements set contain data or information regarding through EPA’s electronic public docket forth in FFDCA section 408(d)(2); the elements set forth in section or by e-mail. You may claim however, EPA has not fully evaluated 408(d)(2) of the FFDCA; however, EPA information that you submit to EPA as the sufficiency of the submitted data at has not fully evaluated the sufficiency CBI by marking any part or all of that this time or whether the data support of the submitted data at this time or information as CBI (if you submit CBI granting of the petition. Additional data whether the data support granting of the on disk or CD ROM, mark the outside may be needed before EPA rules on the petitions. Additional data may be of the disk or CD ROM as CBI and then petition. needed before EPA rules on the identify electronically within the disk or List of Subjects petitions. This notice includes a CD ROM the specific information that is summary of the petitions prepared by CBI). Information so marked will not be Environmental protection, Valent USA Corporation, P.O. Box 8025, disclosed except in accordance with Agricultural commodities, Feed Walnut Creek, CA 94596–8025. procedures set forth in 40 CFR part 2. additives, Food additives, Pesticides In addition to one complete version of and pests, Reporting and recordkeeping A. Residue Chemistry the comment that includes any requirements. 1. Plant metabolism. The metabolism information claimed as CBI, a copy of Dated: March 4, 2004. of flumioxazin is adequately understood the comment that does not contain the Lois Rossi, for the purpose of the proposed information claimed as CBI must be Director, Registration Division, Office of tolerances. submitted for inclusion in the public Pesticide Programs. 2. Analytical method. Practical docket and EPA’s electronic public analytical methods for detecting and docket. If you submit the copy that does Summary of Petitions measuring levels of flumioxazin have not contain CBI on disk or CD ROM, The petitioner summary of the been developed and validated in/on all mark the outside of the disk or CD ROM pesticide petitions is printed below as appropriate agricultural commodities clearly that it does not contain CBI. required by FFDCA section 408(d)(3). and respective processing fractions. The Information not marked as CBI will be The summary of the petitions is limit of quantification (LOQ) of included in the public docket and EPA’s prepared by the petitioner and flumioxazin in the methods is 0.02 ppm electronic public docket without prior represents the view of the petitioner. which will allow monitoring of food

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with residues at the levels proposed for 0.00028 and 0.00098 milligrams/ 3.0% of the cRfD. The Agency has no the tolerances. kilogram/day (mg/kg/day) for adults and cause for concern if total chronic 3. Magnitude of residues. Residue children, respectively. The 56–day residue contribution is less than 100% data on potato, onion, and mint have GENEEC concentration predicted in the of the cRfD, because the cRfD represents been submitted which adequately simulated pond water was 0.34 ppb. the level at or below which daily supports the requested tolerances. 2. Non-dietary exposure. Flumioxazin aggregate exposure over a lifetime will is proposed only for agricultural uses B. Toxicological Profile not pose appreciable risk to human and no homeowner or turf uses. Thus, health. Therefore, it can be concluded The toxicological profile for no non-dietary risk assessment is that there is a reasonable certainty that flumioxazin which supports these needed. no harm will result to the overall U.S. petitions for tolerances was previously D. Cumulative Effects population from aggregate, chronic published in the Federal Register of exposure to flumioxazin residues. April 18, 2001 (66 FR 19870) (FRL– Section 408(b)(2)(D)(v) requires that 3. Infants and children—i. Safety 6778–5). the Agency must consider ‘‘available factor for infants and children. The information’’ concerning the cumulative C. Aggregate Exposure FQPA safety factor has been retained at effects of a particular pesticide’s 10X in assessing the risk posed by 1. Dietary exposure—i. Food. Acute residues and ‘‘other substances that flumioxazin. The reasons for retaining and chronic dietary analyses were have a common mechanism of toxicity.’’ the 10X safety factor are as follows. conducted to estimate exposure to Available information in this context First, there is evidence of increased potential flumioxazin residues in/on the include not only toxicity, chemistry, susceptibility of rat fetuses to in utero following crops: Peanuts and soybeans and exposure data, but also scientific exposure to flumioxazin by the oral and (existing tolerances), cotton, grapes, policies and methodologies for dermal route in the prenatal almond, pistachio, and sugarcane understanding common mechanisms of developmental toxicity studies in rats. (tolerances pending), vegetable, toxicity and conducting cumulative risk In addition, there is evidence of tuberous and corm (Subgroup 1C), assessments. Although the Agency has increased susceptibility of young onion, dry bulb and mint (tolerances some information in its files that may animals exposed to flumioxazin in the proposed in the current petitions), and turn out to be helpful in eventually 2–generation reproduction toxicity nut, tree (Group 14), fruit, pome (Group determining whether a pesticide shares study in rats. Finally, there is concern 11), and fruit, stone (Group 12) a common mechanism of toxicity with for the severity of the effects observed (tolerances to be proposed in the future). any other substances, EPA does not at in fetuses and young animals when The Cumulative and Aggregate Risk this time have the methodologies to compared to those observed in the Evaluation System (CARES) Version 1.1 resolve the complex scientific issues maternal and parental animals. was used to conduct this assessment. concerning common mechanism of Since the additional 10X safety factor Proposed tolerances and conservative toxicity in a meaningful way for most has been retained to account for the estimates for percentages of the crop registered pesticides. apparent increased susceptibility from treated were used in these assessments. prenatal or postnatal exposures to E. Safety Determination No adjustments were made for common flumioxazin, it would be appropriate to washing, cooking or preparation 1. U.S. population. The potential apply the extra 10X safety factor to only practices. Exposure estimates for water acute exposure from food to the U.S. selected subpopulations, e.g. infants and were made based upon modeling population and various non-child/infant children <6 years old and females >13 General Expected Environmental population subgroups will utilize at years old. For these assessments, Concentration (GENEEC 1.2). most 14.2% of the acute reference dose however, the 10X safety factor has been ii. Drinking water. Since flumioxazin (aRfD). Addition of the worse case, applied to all population subgroups for is applied outdoors to growing dietary exposure from water (0.00028 all exposure durations (acute and agricultural crops, the potential exists mg/kg/day) increases this exposure at chronic), thus making these assessments for the parent or its metabolites to reach the 99.9th percentile to 23.7% of the additionally conservative. ground water or surface water that may aRfD. The Agency has no cause for ii. Acute risk. The potential acute be used for drinking water. Because of concern if total acute residue exposure from food to children 1–2 the physical properties of flumioxazin, contribution is less than 100% of the years old (the most highly exposed it is unlikely that flumioxazin or its aRfD, because the aRfD represents the child/infant subgroup) will utilize at metabolites can leach to potable ground level at or below which daily aggregate most 26.3% of the aRfD. Addition of the water. To quantify potential exposure exposure over a lifetime will not pose worse case, dietary exposure from water from drinking water, surface water appreciable risk to human health. (0.00098 mg/kg/day) increases this concentrations for flumioxazin were Therefore, it can be concluded that there exposure at the 99.9th percentile to 59% estimated using GENEEC 1.2. Because is a reasonable certainty that no harm of the aRfD. Therefore, it can be KOC could not be measured directly in will result to the overall U.S. population concluded that there is a reasonable adsorption-desorption studies because from aggregate, acute exposure to certainty that no harm will result to of chemical stability, GENEEC values flumioxazin residues. infants and children from aggregate, representative of a range of KOC values 2. Chronic risk. The potential chronic acute exposure to flumioxazin residues. were modeled. The simulation that was exposure from food to the U.S. iii. Chronic risk. The potential chronic selected for these exposure estimates population and various non-child/infant exposure from food to children 1–2 used an average KOC of 385, indicating population subgroups will utilize at years old (the most highly exposed high mobility. The peak GENEEC most 2.5% of the chronic reference dose child/infant subgroup) will utilize at concentration predicted in the (cRfD). The population subgroup with most 2.4% of the cRfD. Addition of the simulated pond water was 9.8 parts per the highest exposure was the U.S. worse case, dietary exposure from water billion (ppb). Using standard population, western states. Addition of (0.000034 mg/kg/day) increases this assumptions about body weight and the worse case, dietary exposure from exposure at the 100th percentile to 4.2% water consumption, the acute exposure water (0.0000097 mg/kg/day) increases of the cRfD. Therefore, it can be from this drinking water would be this exposure at the 100th percentile to concluded that there is a reasonable

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certainty that no harm will result to I. General Information access those documents in the public infants and children from aggregate, docket that are available electronically. A. Does this Action Apply to Me? chronic exposure to flumioxazin Although not all docket materials may residues. You may be potentially affected by be available electronically, you may still this action if you are an agricultural access any of the publicly available F. International Tolerances producer, food manufacturer, or docket materials through the docket Flumioxazin has not been evaluated pesticide manufacturer. Potentially facility identified in Unit I.B.1. Once in by the Joint Meeting on Pesticide affected entities may include, but are the system, select ‘‘search,’’ then key in Residues and there are no Codex not limited to: the appropriate docket ID number. Maximum Residue Limits (MRL) for • Crop production (NAICS 111) II. Background flumioxazin. MRL values have been • Animal production (NAICS 112) • Food manufacturing (NAICS 311) Under FIFRA section 18, EPA can established to allow the following uses • of flumioxazin in the following Pesticide manufacturing (NAICS authorize the use of a pesticide when countries: 32532) emergency conditions exist. 1. Argentina, soybean at 0.015 ppm This listing is not intended to be Authorizations (commonly called and sunflower at 0.02 ppm. exhaustive, but rather provides a guide emergency exemptions) are granted to 2. Brazil, soybean at 0.05 ppm. for readers regarding entities likely to be State and Federal agencies and are of 3. France, grape at 0.05 ppm. affected by this action. Other types of four types: 4. Paraguay, soybean at 0.015 ppm. entities not listed in this unit could also 1. A ‘‘specific exemption’’ authorizes 5. South Africa, soybean at 0.02 ppm be affected. The North American use of a pesticide against specific pests and groundnut at 0.02 ppm. Industrial Classification System on a limited acreage in a particular 6. Spain, soybean at 0.05 ppm and (NAICS) codes have been provided to State. Most emergency exemptions are peanut at 0.05 ppm. assist you and others in determining specific exemptions. whether this action might apply to 2. ‘‘Quarantine’’ and ‘‘public health’’ [FR Doc. E4–552 Filed 3–16–04; 8:45 am] certain entities. If you have any exemptions are a particular form of BILLING CODE 6560–50–S questions regarding the applicability of specific exemption issued for this action to a particular entity, consult quarantine or public health purposes. the person listed under FOR FURTHER These are rarely requested. ENVIRONMENTAL PROTECTION INFORMATION CONTACT. 3. A ‘‘crisis exemption’’ is initiated by AGENCY a State or Federal agency (and is B. How Can I Get Copies of this [OPP–2004–0051; FRL–7346–4] confirmed by EPA) when there is Document and Other Related insufficient time to request and obtain Pesticide Emergency Exemptions; Information? EPA permission for use of a pesticide in Agency Decisions and State and 1. Docket. EPA has established an an emergency. Federal Agency Crisis Declarations official public docket for this action EPA may deny an emergency under docket identification (ID) number exemption: If the State or Federal AGENCY: Environmental Protection OPP–2004–0051. The official public agency cannot demonstrate that an Agency (EPA). docket consists of the documents emergency exists, if the use poses ACTION: Notice. specifically referenced in this action, unacceptable risks to the environment, any public comments received, and or if EPA cannot reach a conclusion that SUMMARY: EPA has granted or denied other information related to this action. the proposed pesticide use is likely to emergency exemptions under the Although a part of the official docket, result in ‘‘a reasonable certainty of no Federal Insecticide, Fungicide, and the public docket does not include harm’’ to human health, including Rodenticide Act (FIFRA) for use of Confidential Business Information (CBI) exposure of residues of the pesticide to pesticides as listed in this notice. The or other information whose disclosure is infants and children. exemptions or denials were granted restricted by statute. The official public If the emergency use of the pesticide during the period October 2003, to docket is the collection of materials that on a food or feed commodity would December 2003, to control unforseen is available for public viewing at the result in pesticide chemical residues, pest outbreaks. Public Information and Records EPA establishes a time-limited tolerance FOR FURTHER INFORMATION CONTACT: See Integrity Branch (PIRIB), Rm. 119, meeting the ‘‘reasonable certainty of no each emergency exemption or denial for Crystal Mall #2, 1921 Jefferson Davis harm standard’’ of the Federal Food, the name of a contact person. The Hwy., Arlington, VA. This docket Drug, and Cosmetic Act (FFDCA). following information applies to all facility is open from 8:30 a.m. to 4 p.m., In this document: EPA identifies the contact persons: Team Leader, Monday through Friday, excluding legal State or Federal agency granted the Emergency Response Team, Registration holidays. The docket telephone number exemption or denial, the type of Division (7505C), Office of Pesticide is (703) 305–5805. exemption, the pesticide authorized and Programs, Environmental Protection 2. Electronic access. You may access the pests, the crop or use for which Agency, 1200 Pennsylvania Ave., NW., this Federal Register document authorized, number of acres (if Washington, DC 20460–0001; telephone electronically through the EPA Internet applicable), and the duration of the number: (703) 308–9366. under the ‘‘Federal Register’’ listings at exemption. EPA also gives the Federal SUPPLEMENTARY INFORMATION: EPA has http://www.epa.gov/fedrgstr/. Register citation for the time-limited granted or denied emergency An electronic version of the public tolerance, if any. exemptions to the following State and docket is available through EPA’s III. Emergency Exemptions and Denials Federal agencies. The emergency electronic public docket and comment exemptions may take the following system, EPA Dockets. You may use EPA A. U. S. States and Territories form: Crisis, public health, quarantine, Dockets at http://www.epa.gov/edocket/ Arkansas or specific. EPA has also listed denied to submit or view public comments, State Plant Board emergency exemption requests in this access the index listing of the contents Crisis: On August 29, 2003, for the use notice. of the official public docket, and to of spinosad on pastureland and

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rangeland to control armyworms. This to May 30, 2004. Contact: (Libby ACTION: Notice. program ended on December 31, 2003. Pemberton) Contact: (Andrew Ertman) New Jersey SUMMARY: Section 5 of the Toxic Specific: EPA authorized the use of Department of Environmental Protection Substances Control Act (TSCA) requires spinosad on pastureland and rangeland Denial: On October 3, 2003, EPA denied any person who intends to manufacture to control armyworms; August 29, 2003 a specific exemption request for the use (defined by statute to include import) a of propamocarb hydrochloride on to December 31, 2003. Contact: (Andrew new chemical (i.e., a chemical not on tomatoes to control late blight. This Ertman) the TSCA Inventory) to notify EPA and request was denied because available California comply with the statutory provisions Environmental Protection Agency, alternatives are expected to be sufficient to avert emergency losses. Concurrently, pertaining to the manufacture of new Department of Pesticide Regulation chemicals. Under sections 5(d)(2) and Specific: EPA authorized the use of a crisis exemption which was declared 5(d)(3) of TSCA, EPA is required to pyriproxyfen on strawberry to control by New Jersey on August 21, 2003, for publish a notice of receipt of a whiteflies; December 12, 2003 to this use was revoked. Contact: (Libby premanufacture notice (PMN) or an December 12, 2004. Contact: (Andrea Pemberton) application for a test marketing Conrath) North Carolina Specific: EPA authorized the use of Department of Agriculture exemption (TME), and to publish abamectin on spinach to control Specific: EPA authorized the use of periodic status reports on the chemicals leafminer; December 23, 2003 to flufenacet on wheat to control ryegrass; under review and the receipt of notices December 23, 2004. Contact: (Libby October 14, 2003 to December 31, 2003. of commencement to manufacture those Pemberton) Contact: (Andrew Ertman) chemicals. This status report, which Pennsylvania covers the period from February 16, Delaware Department of Agriculture Department of Agriculture 2004 to February 27, 2004, consists of Specific: EPA authorized the use of the PMNs pending or expired, and the Specific: EPA authorized the use of thiophanate methyl on mushroom to thiophanate methyl on mushroom to notices of commencement to control green mold; December 16, 2003 manufacture a new chemical that the control green mold; December 16, 2003 to December 16, 2004. Contact: (Andrea to December 16, 2004. Contact: (Andrea Agency has received under TSCA Conrath) section 5 during this time period. Conrath) South Carolina Florida Clemson University DATES: Comments identified by the Department of Agriculture and Specific: EPA authorized the use of docket ID number OPPT–2004–0083 Consumer Services flufenacet on wheat to control ryegrass; and the specific PMN number or TME Specific: EPA authorized the use of November 20, 2003 to January 31, 2004. number, must be received on or before thymol on beehives to control varroa Contact: (Andrew Ertman) April 16, 2004. mites; November 6, 2003 to November 8, Virginia 2004. Contact: (Stacey Milan Groce) Department of Agriculture and ADDRESSES: Comments may be Georgia Consumer Services submitted electronically, by mail, or Department of Agriculture Specific: EPA authorized the use of through hand delivery/courier. Follow Specific: EPA authorized the use of flufenacet on wheat to control ryegrass; the detailed instructions as provided in thymol on beehives to control varroa October 16, 2003 to March 31, 2004. Unit I. of the SUPPLEMENTARY mites; October 14, 2003 to December 31, Contact: (Andrew Ertman) INFORMATION. 2003. Contact: (Stacey Milan Groce) Wisconsin Specific: EPA authorized the use of Department of Agriculture, Trade, and FOR FURTHER INFORMATION CONTACT: flufenacet on wheat to control ryegrass; Consumer Protection Barbara Cunningham, Director, October 27, 2003 to December 31, 2003. Crisis: On March 28, 2003, for the use Environmental Assistance Division, Contact: (Andrew Ertman) of imidacloprid on soybean seed to Office of Pollution Prevention and Maryland control bean leaf beetles. This program Toxics (7408M), Environmental Department of Agriculture ended on April 30, 2003. Contact: Protection Agency, 1200 Pennsylvania Specific: EPA authorized the use of (Andrew Ertman) Ave., NW., Washington, DC 20460– thymol on beehives to control varroa List of Subjects 0001; telephone number: (202) 554– mites; October 14, 2003 to December 31, 1404; e-mail address: TSCA- 2003. Contact: (Stacey Milan Groce) Environmental protection, Pesticides [email protected]. Specific: EPA authorized the use of and pest. thiophanate methyl on mushroom to Dated: March 4, 2004. SUPPLEMENTARY INFORMATION: control green mold; December 30, 2003 Lois Rossi, I. General Information to December 30, 2004. Contact: (Andrea Director, Registration Division, Office of Conrath) Pesticide Programs. A. Does this Action Apply to Me? Mississippi [FR Doc. E4–551 Filed 3–16–04; 8:45 am] This action is directed to the public Department of Agriculture and BILLING CODE 6560–50–S Commerce in general. As such, the Agency has not Specific: EPA authorized the use of attempted to describe the specific niclosamide on catfish ponds to control ENVIRONMENTAL PROTECTION entities that this action may apply to. ram’s horn snail; December 31, 2003 to AGENCY Although others may be affected, this December 31, 2004. Contact: (Stacey action applies directly to the submitter Milan Groce) [OPPT–2004–0083]; FRL–7350–7] of the premanufacture notices addressed in the action. If you have any questions Nebraska Certain New Chemicals; Receipt and regarding the applicability of this action Department of Agriculture Status Information Specific: EPA authorized the use of to a particular entity, consult the person tebuconazole on field corn seed to AGENCY: Environmental Protection listed under FOR FURTHER INFORMATION control head smut; December 22, 2003 Agency (EPA). CONTACT.

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B. How Can I Get Copies of this system will identify whether the mail address or other contact Document and Other Related document is available for viewing in information in the body of your Information? EPA’s electronic public docket. comment. Also include this contact 1. Docket. EPA has established an Although not all docket materials may information on the outside of any disk official public docket for this action be available electronically, you may still or CD ROM you submit, and in any under docket identification (ID) number access any of the publicly available cover letter accompanying the disk or OPPT–2004–0083. The official public docket materials through the docket CD ROM. This ensures that you can be docket consists of the documents facility identified in Unit I.B.1. EPA identified as the submitter of the specifically referenced in this action, intends to work towards providing comment and allows EPA to contact you any public comments received, and electronic access to all of the publicly in case EPA cannot read your comment available docket materials through due to technical difficulties or needs other information related to this action. EPA’s electronic public docket. further information on the substance of Although a part of the official docket, For public commenters, it is your comment. EPA’s policy is that EPA the public docket does not include important to note that EPA’s policy is will not edit your comment, and any Confidential Business Information (CBI) that public comments, whether identifying or contact information or other information whose disclosure is submitted electronically or in paper, provided in the body of a comment will restricted by statute. The official public will be made available for public be included as part of the comment that docket is the collection of materials that viewing in EPA’s electronic public is placed in the official public docket, is available for public viewing at the docket as EPA receives them and and made available in EPA’s electronic EPA Docket Center, Rm. B102-Reading without change, unless the comment public docket. If EPA cannot read your Room, EPA West, 1301 Constitution contains copyrighted material, CBI, or comment due to technical difficulties Ave., NW., Washington, DC. The EPA other information whose disclosure is and cannot contact you for clarification, Docket Center is open from 8:30 a.m. to restricted by statute. When EPA EPA may not be able to consider your 4:30 p.m., Monday through Friday, identifies a comment containing comment. excluding legal holidays. The EPA copyrighted material, EPA will provide i. EPA Dockets. Your use of EPA’s Docket Center Reading Room telephone a reference to that material in the electronic public docket to submit number is (202) 566–1744 and the version of the comment that is placed in comments to EPA electronically is telephone number for the OPPT Docket, EPA’s electronic public docket. The EPA’s preferred method for receiving which is located in EPA Docket Center, entire printed comment, including the comments. Go directly to EPA Dockets is (202) 566–0280. copyrighted material, will be available at http://www.epa.gov/edocket/, and 2. Electronic access. You may access in the public docket. follow the online instructions for this Federal Register document Public comments submitted on submitting comments. Once in the electronically through the EPA Internet computer disks that are mailed or system, select ‘‘search,’’ and then key in under the ‘‘Federal Register’’ listings at delivered to the docket will be docket ID number OPPT–2004–0083. http://www.epa.gov/fedrgstr/. transferred to EPA’s electronic public The system is an ‘‘anonymous access’’ An electronic version of the public docket. Public comments that are system, which means EPA will not docket is available through EPA’s mailed or delivered to the docket will be know your identity, e-mail address, or electronic public docket and comment scanned and placed in EPA’s electronic other contact information unless you system, EPA Dockets. You may use EPA public docket. Where practical, physical provide it in the body of your comment. Dockets at http://www.epa.gov/edocket/ objects will be photographed, and the ii. E-mail. Comments may be sent by to submit or view public comments, photograph will be placed in EPA’s e-mail to [email protected], Attention: access the index listing of the contents electronic public docket along with a Docket ID Number OPPT–2004–0083 of the official public docket, and to brief description written by the docket and PMN Number or TME Number. In access those documents in the public staff. contrast to EPA’s electronic public docket that are available electronically. docket, EPA’s e-mail system is not an Although not all docket materials may C. How and To Whom Do I Submit ‘‘anonymous access’’ system. If you be available electronically, you may still Comments? send an e-mail comment directly to the access any of the publicly available You may submit comments docket without going through EPA’s docket materials through the docket electronically, by mail, or through hand electronic public docket, EPA’s e-mail facility identified in Unit I.B.1. Once in delivery/courier. To ensure proper system automatically captures your e- the system, select ‘‘search,’’ then key in receipt by EPA, identify the appropriate mail address. E-mail addresses that are the appropriate docket ID number. docket ID number and specific PMN automatically captured by EPA’s e-mail Certain types of information will not number or TME number in the subject system are included as part of the be placed in the EPA Dockets. line on the first page of your comment. comment that is placed in the official Information claimed as CBI and other Please ensure that your comments are public docket, and made available in information whose disclosure is submitted within the specified comment EPA’s electronic public docket. restricted by statute, which is not period. Comments received after the iii. Disk or CD ROM. You may submit included in the official public docket, close of the comment period will be comments on a disk or CD ROM that will not be available for public viewing marked ‘‘late.’’ EPA is not required to you mail to the mailing address in EPA’s electronic public docket. EPA’s consider these late comments. If you identified in Unit I.C.2. These electronic policy is that copyrighted material will wish to submit CBI or information that submissions will be accepted in not be placed in EPA’s electronic public is otherwise protected by statute, please WordPerfect or ASCII file format. Avoid docket but will be available only in follow the instructions in Unit I.D. Do the use of special characters and any printed, paper form in the official public not use EPA Dockets or e-mail to submit form of encryption. docket. To the extent feasible, publicly CBI or information protected by statute. 2. By mail. Send your comments to: available docket materials will be made 1. Electronically. If you submit an Document Control Office (7407M), available in EPA’s electronic public electronic comment as prescribed in this Office of Pollution Prevention and docket. When a document is selected unit, EPA recommends that you include Toxics (OPPT), Environmental from the index list in EPA Dockets, the your name, mailing address, and an e- Protection Agency, 1200 Pennsylvania

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Ave., NW., Washington, DC 20460– electronic public docket without prior the TSCA Inventory to notify EPA and 0001. notice. If you have any questions about comply with the statutory provisions 3. By hand delivery or courier. Deliver CBI or the procedures for claiming CBI, pertaining to the manufacture of new your comments to: OPPT Document please consult the technical person chemicals. Under sections 5(d)(2) and Control Office (DCO) in EPA East Bldg., listed under FOR FURTHER INFORMATION 5(d)(3) of TSCA, EPA is required to Rm. 6428, 1201 Constitution Ave., NW., CONTACT. publish a notice of receipt of a PMN or Washington, DC. Attention: Docket ID an application for a TME and to publish E. What Should I Consider as I Prepare Number OPPT–2004–0083 and PMN periodic status reports on the chemicals My Comments for EPA? Number or TME Number. The DCO is under review and the receipt of notices open from 8 a.m. to 4 p.m., Monday You may find the following of commencement to manufacture those through Friday, excluding legal suggestions helpful for preparing your chemicals. This status report, which holidays. The telephone number for the comments: covers the period from February 16, DCO is (202) 564–8930. 1. Explain your views as clearly as 2004 to February 27, 2004, consists of possible. D. How Should I Submit CBI to the the PMNs pending or expired, and the 2. Describe any assumptions that you Agency? notices of commencement to used. manufacture a new chemical that the Do not submit information that you 3. Provide copies of any technical Agency has received under TSCA consider to be CBI electronically information and/or data you used that section 5 during this time period. through EPA’s electronic public docket support your views. or by e-mail. You may claim 4. If you estimate potential burden or III. Receipt and Status Report for PMNs information that you submit to EPA as costs, explain how you arrived at the This status report identifies the PMNs CBI by marking any part or all of that estimate that you provide. pending or expired, and the notices of information as CBI (if you submit CBI 5. Provide specific examples to commencement to manufacture a new on disk or CD ROM, mark the outside illustrate your concerns. chemical that the Agency has received of the disk or CD ROM as CBI and then 6. Offer alternative ways to improve under TSCA section 5 during this time identify electronically within the disk or the notice or collection activity. period. If you are interested in CD ROM the specific information that is 7. Make sure to submit your information that is not included in the CBI). Information so marked will not be comments by the deadline in this following tables, you may contact EPA disclosed except in accordance with document. procedures set forth in 40 CFR part 2. 8. To ensure proper receipt by EPA, as described in Unit II. to access In addition to one complete version of be sure to identify the docket ID number additional non-CBI information that the comment that includes any assigned to this action and the specific may be available. information claimed as CBI, a copy of PMN number you are commenting on in In Table I of this unit, EPA provides the comment that does not contain the the subject line on the first page of your the following information (to the extent information claimed as CBI must be response. You may also provide the that such information is not claimed as submitted for inclusion in the public name, date, and Federal Register CBI) on the PMNs received by EPA docket and EPA’s electronic public citation. during this period: the EPA case number docket. If you submit the copy that does assigned to the PMN; the date the PMN not contain CBI on disk or CD ROM, II. Why is EPA Taking this Action? was received by EPA; the projected end mark the outside of the disk or CD ROM Section 5 of TSCA requires any date for EPA’s review of the PMN; the clearly that it does not contain CBI. person who intends to manufacture submitting manufacturer; the potential Information not marked as CBI will be (defined by statute to include import) a uses identified by the manufacturer in included in the public docket and EPA’s new chemical (i.e., a chemical not on the PMN; and the chemical identity.

I. 57 PREMANUFACTURE NOTICES RECEIVED FROM: 2/16/04 TO 02/27/04

Projected Case No. Received Notice Manufacturer/Importer Use Chemical Date End Date

P–04–0338 02/17/04 05/16/04 CBI (G) Polymerization catalyst/initiator for (G) Amino alkyl organoborane thermosetting acrylic adhesive P–04–0339 02/17/04 05/16/04 Teknor apex company (G) Plasticizer (G) Aliphatic carboxylic acid ester P–04–0340 02/17/04 05/16/04 CBI (G) Polymerization additive (G) Polyoxyether salt P–04–0341 02/17/04 05/16/04 3M Company (S) Solvent coating; heat transfer (G) Hydrofluoroether P–04–0342 02/17/04 05/16/04 H.B. Fuller (G) Industrial adhesive (G) Polyurethane prepolymer P–04–0343 02/17/04 05/16/04 H.B. Fuller (G) Industrial adhesive (G) Polyurethane prepolymer P–04–0344 02/17/04 05/16/04 Eastman Kodak Com- (G) Chemical intermediate, destruc- (G) Sulfonyl substituted alkane pany tive use P–04–0345 02/18/04 05/17/04 Dow Corning Corpora- (G) Coating (G) Amino silane salt tion P–04–0346 02/18/04 05/17/04 CBI (G) Binder component (G) Copolymer of phenol and aro- matic hydrocarbon P–04–0347 02/18/04 05/17/04 CBI (G) Binder component (G) Copolymer of phenol and aro- matic hydrocarbon P–04–0348 02/18/04 05/17/04 Symrise Inc. (G) Additive for industrial and con- (S) 7-cyclohexadecen-1-one, (e)8- sumer products dispersive use cyclohexadecen-1-one, (z) P–04–0349 02/19/04 05/18/04 CBI (G) Contained use in energy produc- (G) Phosphonate salt tion. P–04–0350 02/19/04 05/18/04 CBI (G) Destructive use (G) Sulfurized pib distillate

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I. 57 PREMANUFACTURE NOTICES RECEIVED FROM: 2/16/04 TO 02/27/04—Continued

Projected Case No. Received Notice Manufacturer/Importer Use Chemical Date End Date

P–04–0351 02/19/04 05/18/04 CBI (S) Resin for ultraviolet curable coat- (G) Product of acrylic acid and a poly- ings; resin for ultraviolet curable ester polyol inks P–04–0352 02/19/04 05/18/04 Mitsui Chemicals (G) Manufacture of printable polymer (G) Ethylene-tetracyclododecene co- America, Inc. film polymer P–04–0353 02/19/04 05/18/04 CBI (G) Colourant (G) Azo nickel complex P–04–0354 02/19/04 05/18/04 CBI (G) Nonwoven binder intermediate (G) Acrylic polymer P–04–0355 02/19/04 05/18/04 CBI (G) Nonwoven binder (G) Acrylic polymer P–04–0356 02/19/04 05/18/04 CBI (G) Nonwoven binder intermediate (G) Acrylic polymer P–04–0357 02/19/04 05/18/04 CBI (G) Nonwoven binder (G) Acrylic polymer P–04–0358 02/20/04 05/19/04 CBI (G) Crystallization aid (G) Alkylamine sodium sulfonate P–04–0359 02/20/04 05/19/04 CBI (G) Crystallization aid (G) Alkylamine sodium sulfonate P–04–0360 02/17/04 05/16/04 Ashland Inc., (G) Adhesive, coating, ink (G) Multifuctional acrylate oligomer Enviornmental resin Health and Safety P–04–0361 02/17/04 05/16/04 Ashland Inc., (G) Adhesive, coating, ink (G) Multifuctional acrylate oligomer Enviornmental resin Health and Safety P–04–0362 02/17/04 05/16/04 Ashland Inc., (G) Adhesive, coating, ink (G) Multifuctional acrylate oligomer Enviornmental resin Health and Safety P–04–0363 02/17/04 05/16/04 Ashland Inc., (G) Adhesive, coating, ink (G) Multifuctional acrylate oligomer Enviornmental resin Health and Safety P–04–0364 02/17/04 05/16/04 Ashland Inc., (G) Adhesive, coating, ink (G) Multifuctional acrylate oligomer Enviornmental resin Health and Safety P–04–0365 02/17/04 05/16/04 Ashland Inc., (G) Adhesive, coating, ink (G) Multifuctional acrylate oligomer Enviornmental resin Health and Safety P–04–0366 02/20/04 05/19/04 CBI (G) Hardner (G) Blocked isocyanate P–04–0367 02/23/04 05/22/04 CBI (G) Additive, open, non-dispersive (G) Fatty acid ester amine compound use P–04–0368 02/23/04 05/22/04 Ashland Inc., (G) Raw material for the synthesis of (G) Ketoester Enviornmental multi-functional acrylate oligomers Health and Safety to be used in adhesives, coatings and inks P–04–0369 02/23/04 05/22/04 Ashland Inc., (G) Raw material for the synthesis of (G) Ketoester Enviornmental multi-functional acrylate oligomers Health and Safety to be used in adhesives, coatings and inks P–04–0370 02/23/04 05/22/04 CIBA Specialty Chemi- (S) Binder resin for coatings (G) Acrylic polymer cals Corporation P–04–0371 02/23/04 05/22/04 Essential Industries (S) Raw material for wood coatings (G) Aliphatic polyurethane dispersion P–04–0372 02/23/04 05/22/04 Symrise Inc. (G) Additive for consumer products (S) 1-pentanol, 2-mercapto-2-methyl- dispersive use P–04–0373 02/24/04 05/23/04 Symrise Inc. (G) Additive for industrial and com- (S) Carbonic acid, 2-hydroxypropyl mercial products dispersive use (1r,2s,5r)-5-methyl-2-(1- methylethyl)cyclohexyl ester P–04–0374 02/24/04 05/23/04 Ashland Inc., (G) Adhesive, coating, ink (G) Multifunctional acrylate oligomer Enviornmental resin Health and Safety P–04–0375 02/24/04 05/23/04 Ashland Inc., (G) Adhesive, coating, ink (G) Multifunctional acrylate oligomer Enviornmental resin Health and Safety P–04–0376 02/24/04 05/23/04 Ashland Inc., (G) Adhesive, coating, ink (G) Multifunctional acrylate oligomer Enviornmental resin Health and Safety P–04–0377 02/24/04 05/23/04 Ashland Inc., (G) Adhesive, coating, ink (G) Multifunctional acrylate oligomer Enviornmental resin Health and Safety P–04–0378 02/24/04 05/23/04 Ashland Inc., (G) Adhesive, coating, ink (G) Multifunctional acrylate oligomer Enviornmental resin Health and Safety P–04–0379 02/24/04 05/23/04 Ashland Inc., (G) Adhesive, coating, ink (G) Multifunctional acrylate oligomer Enviornmental resin Health and Safety

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I. 57 PREMANUFACTURE NOTICES RECEIVED FROM: 2/16/04 TO 02/27/04—Continued

Projected Case No. Received Notice Manufacturer/Importer Use Chemical Date End Date

P–04–0380 02/25/04 05/24/04 Huntsman Petro- (G) Intermediate (G) Polyether polyol chemical Corpora- tion P–04–0381 02/25/04 05/24/04 CBI (S) Intermediate for epoxy curing (G) Modified amine adduct agent P–04–0382 02/25/04 05/24/04 CBI (G) Component of pvc stabilizer sys- (G) Zinc soap tems P–04–0383 02/25/04 05/24/04 CBI (G) Auxiliary for coatings (G) Hydroxyalkyl carboxylic acid, polymer with alkylamine, alkanediol, alkyldiisocyanate and polyalkyl ether, polyalkylene glycol ether- blocked, compounds with alkylamine P–04–0384 02/25/04 05/24/04 Huntsman Petro- (G) Resin curing agent (G) Aliphatic polyethertriamine chemical Corpora- tion P–04–0385 02/26/04 05/25/04 Ashland Inc., (G) Adhesive, coating, ink (G) Multifuctional acrylate oligomer Enviornmental resin Health and Safety P–04–0386 02/26/04 05/25/04 Ashland Inc., (G) Adhesive, coating, ink (G) Multifuctional acrylate oligomer Enviornmental resin Health and Safety P–04–0387 02/26/04 05/25/04 Ashland Inc., (G) Adhesive, coating, ink (G) Multifuctional acrylate oligomer Enviornmental resin Health and Safety P–04–0388 02/26/04 05/25/04 Apollo America Cor- (G) Lubricating oil (G) Saturated cyclic hydrocarbon poration P–04–0389 02/26/04 05/25/04 Apollo America Cor- (G) Lubricating oil (G) Saturated cyclic hydrocarbon poration P–04–0390 02/27/04 05/26/04 CBI (G) Colourant (G) Sulphonated azo dye P–04–0391 02/27/04 05/26/04 Degussa Corporation (S) Industrial powder coating systems (G) Alkanediol, polymer with alkanedioic anhydride P–04–0392 02/27/04 05/26/04 Meadwestvaco SC, (S) Asphalt emulsifier salt (G) Aliphatic n-substituted carboxylic LLC - Specialty acid amide, hydrochloride Chemicals Division P–04–0423 02/27/04 05/26/04 CBI (G) Additive in manufacture of (G) Polymeric carboxylic acid salt carbonless paper (two polymers)

In Table II of this unit, EPA provides CBI) on the Notices of Commencement the following information (to the extent to manufacture received: that such information is not claimed as

II. 36 NOTICES OF COMMENCEMENT FROM: 2/16/04 TO 02/27/04

Commencement Case No. Received Date Notice End Date Chemical

P–00–1225 02/23/04 01/25/04 (G) 1,7-naphthalenedisulfonic acid, 2-[[substitutedamino]-5-hydroxy-6-[(4-meth- yl-2-sulfophenyl]azo]-,salt P–02–0273 02/19/04 01/27/04 (S) D-glucopyranose, oligomeric, C10–12-alkyl glycosides P–02–0421 02/17/04 02/09/04 (G) Substituted polyoxyethylene P–02–0989 02/24/04 01/29/04 (G) Aliphatic polyester polyurethane polymer P–02–1072 02/25/04 01/30/04 (S) 2-propenoic acid, 2-methyl-, polymer with ethenylbenzene, 2-ethyhexyl 2- propenoate, 1,6-hexanediyl di-2-propenoate and methyl 2-methyl-2- propenoate P–02–1073 02/24/04 01/27/04 (S) 2-propenoic acid, 2-methyl-, polymer with ethenylbenzene, 2-ethyhexyl 2- propenoate, 1,6-hexanediyl di-2-propenoate and methyl 2-methyl-2- propenoate, ammonium salt P–02–1078 02/17/04 02/11/04 (G) Mannich base P–02–1080 02/17/04 02/11/04 (G) Mannich base P–03–0077 02/19/04 02/12/04 (S) Phosphonium, tributyl(2-methoxypropyl)-, salt with 1,1,2,2,3,3,4,4,4- nonafluoro-n-methyl-1-butanesulfonamide (1:1) P–03–0233 02/19/04 02/04/04 (G) Calcium salt of a polyolefin substituted phenol P–03–0234 02/19/04 01/27/04 (G) Phenolic resin P–03–0311 02/23/04 02/06/04 (G) Alkoxylated monobutyl ether P–03–0549 02/24/04 01/26/04 (G) 1,3-bis(dimethoxyethylol) 4,5-dihydroxyethylene urea P–03–0634 02/20/04 01/16/04 (G) Acrylate, acrylonitrile, butadiene rubber-extended epoxy resin polymer P–03–0667 02/24/04 02/02/04 (G) Urea dimethoxyethanal resin

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II. 36 NOTICES OF COMMENCEMENT FROM: 2/16/04 TO 02/27/04—Continued

Commencement Case No. Received Date Notice End Date Chemical

P–03–0685 02/24/04 01/29/04 (G) Fatty acid ester P–03–0690 02/23/04 02/10/04 (G) Rosin, polymer with a monocarboxylic acid, a phenol, maleic anhydride, formaldehyde and pentaerythritol. P–03–0767 02/18/04 02/02/04 (G) Aromatic isocyanate methacrylate blocked P–03–0803 02/27/04 01/27/04 (G) Aliphatic phosphate diacrylate P–03–0813 02/18/04 02/12/04 (G) Polymeric modified vegetable oil P–03–0829 02/23/04 02/06/04 (G) Telechelic polyacrylate P–04–0001 02/25/04 02/05/04 (S) Poly(oxy-1,2-ethanediyl),.alpha.-(1-oxo-2-propenyl)-.omega.-([1,1′-biphenyl]- 2-yloxy)- P–04–0002 02/25/04 02/05/04 (S) Hexanedioic acid, polymer with 1,6-diisocyanatohexane, 1,6-diisocyanato- 2,2,4-trimethylhexane, 1,6-diisocyanato-2,4,4-trimethylhexane, 1,1′-[(1- methylethylidene)bis(4,1-phenyleneoxy)]bis[2-propanol] and 3-methyl-1,5- pentanediol, 2-hydroxyethyl acrylate-blocked P–04–0003 02/25/04 02/05/04 (S) 2-propenoic acid, 2-methyl-, 1,2,2,6,6-pentamethyl-4-piperidinyl ester P–04–0004 02/25/04 02/05/04 (S) Poly[oxy(methyl-1,2-ethanediyl)],.alpha.,.alpha′.-[(1-methylethylidine)di-4,1- phenylene]bis[.omega.-[(1-oxo-2-propenyl)oxy]- P–04–0022 02/17/04 02/05/04 (S) Fatty acids, C14–18 and C16–18 unsaturated-2-ethyl hexyl esters P–04–0034 02/23/04 02/03/04 (G) Lithium grease thickener P–04–0045 02/26/04 01/27/04 (G) Epoxy-acrylic copolymer P–04–0053 02/25/04 02/05/04 (S) 2-propenoic acid, 1,9-nonanediyl ester P–04–0060 02/20/04 01/22/04 (G) Substituted metal complex P–04–0061 02/20/04 01/22/04 (G) Substituted metal complex P–04–0062 02/20/04 01/22/04 (G) Modified metal complex P–04–0118 02/24/04 02/10/04 (G) Triamine adipate salt P–04–0120 02/18/04 02/12/04 (G) Isocyanate functional polyester polyether urethane polymer P–96–0159 02/18/04 01/30/04 (G) Polyurethane adhesive P–96–0412 02/24/04 05/08/96 (G) Hydroxy functional oligomer

List of Subjects Supervision Program. Maryland has timely and appropriate request for a Environmental protection, Chemicals, adopted five new rules. Included are the hearing is received and the Regional Premanufacturer notices. Arsenic Rule, which will provide for Administrator does not elect to hold a better public health protection by hearing on his own motion, and if no Dated: March 11, 2004. lowering the maximum contaminant comments are received which cause Anthony Cheatham, level (MCL), the Interim Enhanced EPA to modify its tentative approval. Acting Director, Information Management Surface Water Treatment Rule, which ADDRESSES: Comments or a request for Division, Office of Pollution Prevention and will help improve control of microbial a public hearing must be submitted to Toxics. pathogens in drinking water, including the U.S. Environmental Protection [FR Doc. 04–6006 Filed 3–16–04; 8:45 am] specifically the protozoan Agency Region III, 1650 Arch Street, BILLING CODE 6560–50–S Cryptosporidium and the Stage 1 Philadelphia, PA 19103–2029. Disinfectants and Disinfection Comments may also be submitted Byproducts Rule, which will set new electronically to Steve Maslowski at ENVIRONMENTAL PROTECTION requirements to limit the formation of [email protected]. AGENCY chemical disinfection byproducts in All documents relating to this [FRL–7637–5] drinking water. Also included are the determination are available for Filter Backwash Recycling Rule, which inspection between the hours of 8 a.m. Notice of Tentative Approval and will require water systems to institute and 4:30 p.m., Monday through Friday, Solicitation of Request for a Public changes to return recycle flows of a at the following offices: Hearing for Public Water System plant’s treatment process that may • Drinking Water Branch, Water Supervision Program Revisions for the compromise pathogen treatment and the Protection Division, U.S. Environmental State of Maryland Radionuclides Rule, which establishes a Protection Agency Region III, 1650 Arch Street, Philadelphia, PA 19103–2029. AGENCY: Environmental Protection new MCL level for uranium and revises • Water Supply Program, Maryland Agency (EPA). monitoring requirements. EPA has determined that these revisions, all Department of the Environment, ACTION: Notice of Tentative Approval effective September 1, 2003, are no less Montgomery Park Business Center, 1800 and Solicitation of Requests for a Public stringent than the corresponding Washington Blvd, Baltimore, MD 21230. Hearing. Federal regulations. Therefore, EPA has FOR FURTHER INFORMATION CONTACT: SUMMARY: Notice is hereby given in decided to tentatively approve these Steve Maslowski, Drinking Water accordance with the provision of section program revisions. All interested parties Branch (3WP22) at the Philadelphia 1413 of the Safe Drinking Water Act, as are invited to submit written comments address given above; telephone (215) amended and the requirements on this determination and may request 814–2371 or fax (215) 814–2318. governing the National Primary a public hearing. SUPPLEMENTARY INFORMATION: All Drinking Water Regulations DATES: Comments or a request for a interested parties are invited to submit Implementation, 40 CFR part 142, that public hearing must be submitted by written comments on this determination the State of Maryland is revising its April 16, 2004. This determination shall and may request a public hearing. All approved Public Water System become effective on April 16, 2004, if no comments will be considered, and, if

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necessary, EPA will issue a response. of the potential environmental and ACTION: Notice with request for Frivolous or insubstantial requests for a health effects of nanoscale materials. comment. hearing may be denied by the Regional This session will end at approximately Administrator. However, if a substantial 5 p.m. Additional information on the SUMMARY: The Farm Credit request for a public hearing is made by agenda will be posted at the PCAST Administration (FCA or agency) is April 16, 2004, a public hearing will be Web site at: http://www.ostp.gov/ seeking public input on the changes it held. PCAST/pcast.html. should consider making to its A request for public hearing shall systematic collection of standardized PUBLIC COMMENTS: There will be time loan data. The agency currently collects include the following: (1) The name, allocated for the public to speak on the address, and telephone number of the basic descriptive information from Farm above agenda items. This public Credit System (FCS or System) banks individual, organization, or other entity comment time is designed for requesting a hearing; (2) a brief and associations, in a standardized substantive commentary on PCAST’s format, using the Loan Account statement of the requesting person’s work topics, not for business marketing interest in the Regional Administrator’s Reporting System—Modified (LARS– purposes. Please submit a request for M). The agency is planning to determination and of information that the opportunity to make a public the requesting person intends to submit reengineer its collection of standardized comment five (5) days in advance of the loan data to meet its current and future at such a hearing; and (3) the signature meeting. The time for public comments of the individual making the request; or, information needs. In support of this will be limited to no more than 5 reengineering project, FCA is seeking if the request is made on behalf of an minutes per person. Written comments public comment on changes the agency organization or other entity, the are also welcome at any time following should consider making to the loan data signature of a responsible official of the the meeting. Please notify Stan Sokul, it collects; what processes and organization or other entity. PCAST Executive Director, at (202) 456– technological approaches to employ Dated: March 8, 2004. 6070, or fax your request/comments to when collecting loan data; how to Thomas Voltaggio, (202) 456–6021. minimize the reporting burden on Acting Regional Administrator, EPA Region FOR FURTHER INFORMATION CONTACT: For System institutions while meeting III. information regarding time, place and agency needs; and what types of [FR Doc. 04–5998 Filed 3–16–04; 8:45 am] agenda, please call Stan Sokul at (202) standardized reports to make available BILLING CODE 6560–50–P 456–6070, prior to 3 p.m. on Monday, to the general public and System March 29, 2004. Information will also be institutions. available at the PCAST Web site at: DATES: Please send your comments to OFFICE OF SCIENCE AND http://www.ostp.gov/PCAST/pcast.html. the FCA by May 3, 2004. TECHNOLOGY POLICY Please note that public seating for this ADDRESSES: We encourage you to send meeting is limited and is available on a comments by electronic mail to reg- Meeting of the President’s Council of first-come, first-served basis. [email protected] or through the Pending Advisors on Science and Technology SUPPLEMENTARY INFORMATION: The Regulations section of FCA’s Web site, ACTION: Notice of meeting. President’s Council of Advisors on http://www.fca.gov. You may also send Science and Technology was comments to Andrew Jacob, Assistant SUMMARY: This notice sets forth the established by Executive Order 13226, Director, Office of Policy and Analysis, schedule and summary agenda for a on September 30, 2001. The purpose of Farm Credit Administration, 1501 Farm meeting of the President’s Council of PCAST is to advise the President on Credit Drive, McLean, VA 22102–5090 Advisors on Science and Technology matters of science and technology or by facsimile to (703) 734–5784. You (PCAST), and describes the functions of policy, and to assist the President’s may review copies of all comments we the Council. Notice of this meeting is National Science and Technology receive at our office in McLean, required under the Federal Advisory Council in securing private sector Virginia. Committee Act (FACA). participation in its activities. The FOR FURTHER INFORMATION CONTACT: DATES AND PLACE: March 30, 2004, Council members are distinguished Gaylon J. Dykstra, Policy Analyst, Washington, DC. The meeting will be individuals appointed by the President Office of Policy and Analysis, Farm held in the Crystal Ballroom of the St. from non-Federal sectors. The PCAST is Credit Administration, McLean, VA Regis Hotel, 923 16th Street, NW., co-chaired by Dr. John H. Marburger, III, 22102–5090, (703) 883–4073, TTY (703) Washington, DC 20006. the Director of the Office of Science and 883–4434; TYPE OF MEETING: Open. Further details Technology Policy, and by E. Floyd or on the agenda will be posted on the Kvamme, a Partner at Kleiner Perkins Howard Rubin, Senior Attorney, PCAST Web site at: http:// Caufield & Byers. Office of the General Counsel, Farm www.ostp.gov/PCAST/pcast.html. Credit Administration, McLean, VA Stanley S. Sokul, PROPOSED SCHEDULE AND AGENDA: The 22102–5090, (703) 883–4029, TTY (703) Executive Director, PCAST, and Counsel, 883–2020. President’s Council of Advisors on Office of Science and Technology Policy. Science and Technology is scheduled to SUPPLEMENTARY INFORMATION: [FR Doc. 04–6051 Filed 3–16–04; 8:45 am] meet in open session on Tuesday, I. Background March 30, 2004, at approximately 9 a.m. BILLING CODE 3170–01–M The PCAST is tentatively scheduled to: A. What Loan Data Does FCA Collect? (1) Discuss a draft report from its FCA currently collects certain workforce-education subcommittee; and FARM CREDIT ADMINISTRATION standardized loan information from FCS (2) continue its discussion of banks and associations using the LARS– nanotechnology and its review of the Systematic Collection of Standardized M. Examples of standardized variables federal National Nanotechnology Loan Data collected include: Initiative through presentations and 1. The date the loan was originated discussions concerning the management AGENCY: Farm Credit Administration. and the date on which it matures;

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2. The primary agricultural geographic location, commodity linkage, information systems used by FCS commodity produced by the borrower; or other commonalities among affected institutions. 3. Whether a loan is covered by a institutions. Similarly, the agency uses II. Objectives of This Project government guarantee; loan data to analyze the impact of 4. If a loan is past due, the number of emerging vulnerabilities, such as food The objectives of FCA’s project to days the loan payment is delinquent; safety concerns, trade disputes, changes reengineer its standardized collection of 5. The risk of the loan based on the in government support programs, shifts loan data from System institutions are uniform classification system as defined in consumer preferences, and climactic to: in the FCA Examination Manual (EM– events. Using loan data, the agency can 1. Determine the appropriate set of 320); and better identify vulnerable System loans. loan data to collect on a systematic, 6. Whether the borrower is in Access to loan data increases FCA’s centralized, and standardized basis that bankruptcy or the loan is in foreclosure understanding of the systemic risks meets the agency’s needs; status. facing the FCS and helps the agency 2. Streamline the collection process of The agency also obtains direct determine if any policy actions are loan data to enhance reliability, institution-specific loan data as needed needed. timeliness, and data accuracy; for examination purposes. 3. Minimize the reporting burden on E. Developing Regulations and Policy System institutions; and B. How Does FCA Use Loan Data? FCA uses loan data to support its 4. Provide appropriate standardized FCA uses loan information to support regulation of System institutions. For reports to internal and, potentially, its supervision and regulation of System example, loan data provide information external parties. institutions. For supervisory purposes, needed to evaluate the impact of capital The reengineering project will address loan information is important for adequacy standards, lending limits, and the limitations of the current approach evaluating portfolio risk associated with liquidity requirements. Moreover, to a standardized collection of loan data. agricultural lending and analyzing access to loan data allows the agency to The agency is already considering the credit risks in individual agricultural analyze the effectiveness and results data elements it needs to collect on loans. Loan data are also required for achieved from regulations and policy individual loans, including what monitoring Systemwide trends and actions. specific financial information, loan emerging vulnerabilities. For regulatory performance data, and other essential purposes, loan information is used for F. Fulfilling Reporting Requirements information about loan characteristics developing regulations and other public and Responding to Information that are necessary for adequately policy actions. FCA also uses loan data Requests evaluating portfolio and loan risks. in fulfilling reporting requirements and The agency is required to periodically Moreover, the project will also address informational requests. provide reports to Congress. The agency the agency’s need to collect information also frequently responds to information for all loans made by System C. Identifying Loan Portfolio Risk requests from Congress and others. institutions. Along with these Identification of risks in a loan Ready access to loan data aids FCA in considerations, the agency is evaluating portfolio is essential to FCA’s evaluation timely and accurately responding to the data elements needed to model loan of an institution’s safety and soundness. reporting requirements and information performance characteristics through Loan portfolio risk reflects individual requests. time, such as probability of default, loss loan exposures and the combined effects severity, and exposures at default. In the G. Why Is FCA Considering Changing Its on a portfolio. Risk in individual loans future, modeling loan performance may Standardized Collection of Loan Data? is a function of characteristics become a key aspect in the evaluation associated with a borrower’s agricultural LARS–M was first implemented in of a System institution’s capital operation and financial condition and 1987 and last revised in 1993. While adequacy. FCA is also evaluating new performance. Examples of loan LARS–M provides FCA with a technologies to streamline and improve characteristics include the commodities standardized and centralized collection the collection process. This evaluation produced, geographic location, payment of loan data, it has not kept pace with includes reducing the reporting burden history, financial strength, and off-farm changes in financial reporting systems, by relying on an efficient process that income. These types of loan data are is incomplete as to loan types, lacks utilizes information readily available in important determinants of the credit detail, and only allows access to current the different FCS institutions’ electronic risk of a loan. Therefore, FCA access to quarter data. FCA, therefore, believes loan information systems. loan data is critical for evaluating improvements are needed to fully meet FCA is also evaluating the portfolio risks of System institutions the agency’s current and future standardized reports the agency and the credit risk of individual loans. information needs. currently uses in conducting its FCA examiners also obtain loan supervisory and regulatory programs, D. Monitoring Systemwide Trends information directly from System including considering the type of Analyzing Systemwide trends and institutions on an as-needed basis for reports to make available to the general emerging vulnerabilities is a critical use in conducting examinations, but public and System institutions in light agency activity for monitoring the this information is not standardized or of legal restrictions and other overall mission accomplishment and centralized. As a result, directly constraints regarding the release of ongoing safety and soundness of the downloaded data are not useful or private and sensitive business FCS. Monitoring Systemwide trends available for Systemwide analysis or information used solely for examination helps FCA identify when risks are reporting. More importantly, the purposes. impacting the System’s agricultural downloaded data vary considerably by loans. For example, the System may FCA field office since loan information III. Questions show an overall increase in delinquent systems vary across System institutions. To augment the agency’s experience loans. Access to loan data allows the Therefore, standardized and centralized and expertise with agricultural lending agency to analyze this trend and collection of loan data would help practices and credit analysis, FCA is associated characteristics, such as overcome the variety in electronic loan seeking public input on the changes it

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should consider making as it Security Discussion Agreement (FMC Address: 8284 NW. 66th Street, reengineers the systematic collection of Agreement No. 011852), on the other Miami, FL 33166. standardized loan data from System hand. Date Revoked: February 20, 2004. institutions. Specifically, the agency Synopsis: The agreement would Reason: Failed to maintain a valid requests comments on: authorize the parties to meet, discuss, bond. 1. What suggestions do you have and exchange information related to License Number: 003093F. regarding loan data elements? maritime security. Name: Noboru Tom Nakamura dba 2. What processes and technological Agreement No.: 201026–005. TN Forwarding approaches to employ to streamline the Title: New Orleans/P&O Ports LA Address: 2627 28th Street, Santa collection of loan data? Terminal Lease Agreement. Monica, CA 90405 3. How to minimize the reporting Parties: Board of Commissioners of Date Revoked: February 26, 2004. burden on System institutions while the Port of New Orleans P&O Ports Reason: Failed to maintain a valid meeting the agency’s informational Louisiana, Inc. bond. needs? Synopsis: The amendment amends 4. What standardized reports to make the lease to include a larger acreage and License Number: 016083F. available to the general public and a roadway reservation and to permit the Name: Palmetto Freight Forwarding System institutions, considering the lessee other similar rights of way in the Corp. need to protect private and proprietary facility. Address: 2577 West 80th Street, Hialeah, FL 33016. confidential information? Agreement No.: 201150–001. Date Revoked: February 25, 2004. Along with these questions, we Title: Napoleon Avenue Container welcome any other comments or Terminal Lease Agreement. Reason: Failed to maintain a valid suggestions the agency should consider Parties: The Board of Commissioners bond. as it moves forward with this initiative. of the Port of New Orleans; P&O Ports License Number: 003511F. Dated: March 12, 2004. Louisiana, Inc. Name: Respond Cargo Services Jeanette C. Brinkley, Synopsis: The modification changes Corporation. Address: 15711 West Hardy Road, Secretary, Farm Credit Administration Board. the basis for calculating the rent under the lease agreement. Suite 3, Houston, TX 77060. [FR Doc. 04–5988 Filed 3–16–04; 8:45 am] Dated: March 12, 2004. Date Revoked: February 25, 2004. BILLING CODE 6705–01–P Reason: Failed to maintain a valid By Order of the Federal Maritime Commission. bond. License Number: 014454N. FEDERAL MARITIME COMMISSION Bryant L. VanBrakle, Secretary. Name: Seoul Express Line, Inc. Notice of Agreements Filed [FR Doc. 04–6039 Filed 3–16–04; 8:45 am] Address: 283 E. Redondo Beach Blvd., Gardena, CA 90248. BILLING CODE 6730–01–P The Commission hereby gives notice Date Revoked: February 19, 2004. of the filing of the following agreements Reason: Failed to maintain a valid under the Shipping Act of 1984. FEDERAL MARITIME COMMISSION bond. Interested parties can review or obtain License Number: 003896F. copies of agreements at the Washington, Ocean Transportation Intermediary Name: Sino AM Cargo, Inc. DC offices of the Commission, 800 License; Revocations Address: 1335 Evans Avenue, San North Capitol Street, NW., Room 940. The Federal Maritime Commission Francisco, CA 94124. Interested parties may submit comments Date Revoked: February 25, 2004. on an agreement to the Secretary, hereby gives notice that the following Ocean Transportation Intermediary Reason: Failed to maintain a valid Federal Maritime Commission, bond. Washington, DC 20573, within 10 days licenses have been revoked pursuant to of the date this notice appears in the section 19 of the Shipping Act of 1984 Sandra L. Kusumoto, Federal Register. (46 U.S.C. app. 1718) and the Director, Bureau of Consumer Complaints Agreement No.: 011528–025. regulations of the Commission and Licensing. Title: Japan/United States Eastbound pertaining to the licensing of Ocean [FR Doc. 04–6041 Filed 3–16–04; 8:45 am] Freight Conference. Transportation Intermediaries, effective BILLING CODE 6730–01–P Parties: A.P. Moller-Maersk Sealand; on the corresponding date shown below: American President Lines, Ltd.; Hapag- License Number: 017472N. Lloyd Container Linie GmbH; Kawasaki Name: ARC Global Logistics, Inc. FEDERAL MARITIME COMMISSION Kisen Kaisha, Ltd.; Mitsui O.S.K. Lines, Address: 1552B NW. 82nd Avenue, Ocean Transportation Intermediary Ltd.; Nippon Yusen Kaisha; Orient Miami, FL 33126. License; Reissuances Overseas Container Line Limited; P&O Date Revoked: February 9, 2004. Reason: Failed to maintain a valid Nedlloyd B.V.; P&O Nedlloyd Limited; Notice is hereby given that the bond. and Wallenius Wilhelmsen Lines AS following Ocean Transportation Synopsis: The amendment deletes License Number: 017120N. Intermediary licenses have been Wallenius Wilhelmsen Lines AS as a Name: Celestial International Freight, reissued by the Federal Maritime party to the agreement. Inc. Commission pursuant to section 19 of Agreement No.: 011871. Address: 2300 E. Higgins Road, Suite the Shipping Act of 1984, as amended Title: West Coast-Security Bridge 224, Elk Grove Village, IL 60007. by the Ocean Shipping Reform Act of Agreement. Date Revoked: February 27, 2004. 1998 (46 U.S.C. app. 1718) and the Parties: The members of the West Reason: Failed to maintain a valid regulations of the Commission Coast MTO Discussion Agreement (FMC bond. pertaining to the licensing of Ocean Agreement No. 201143), on the one License Number: 011564N. Transportation Intermediaries, 46 CFR hand, and the members of the Maritime Name: Inter-Shipping Chartering Co. part 515.

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License no. Name/address Date reissued

014568NF ...... Districargo, Inc., 8015 NW 29th Street, Miami, FL 33122 ...... May 20, 2002.

Sandra L. Kusumoto, Board of Governors of the Federal Reserve Parkway, Suite 250, Rockville, MD Director, Bureau of Consumer Complaints System, March 11, 2004. 20852, (301) 443–2331, FAX (301) 443– and Licensing. Robert deV. Frierson, 4788, e-mail [FR Doc. 04–6040 Filed 3–16–04; 8:45 am] Deputy Secretary of the Board. [email protected]. BILLING CODE 6730–01–P [FR Doc. 04–5954 Filed 3–16–04; 8:45 am] Correction BILLING CODE 6210–01–S In the Federal Register of February 25, 2004 in FR Doc Vol. 69, No. 37, on FEDERAL RESERVE SYSTEM page 8661, in the second column, GENERAL SERVICES correct the SUMMARY to read: Formations of, Acquisitions by, and ADMINISTRATION Mergers of Bank Holding Companies SUMMARY: The Advisory Committee on Office of Governmentwide Policy Blood Safety and Availability will meet The companies listed in this notice to examine the impact and assessment have applied to the Board for approval, Cancellation of an Optional Form by of bacterial detection on plasma pursuant to the Bank Holding Company the Department of Defense products. The meeting will be entirely Act of 1956 (12 U.S.C. 1841 et seq.) open to the public. AGENCY: General Services (BHC Act), Regulation Y (12 CFR part Administration. Dated: March 11, 2004. 225), and all other applicable statutes Jerry A. Holmberg, ACTION: Notice. and regulations to become a bank Executive Secretary, Advisory Committee on holding company and/or to acquire the SUMMARY: The Department of Defense is Blood Safety and Availability. assets or the ownership of, control of, or cancelling the following Optional Form [FR Doc. 04–6044 Filed 3–16–04; 8:45 am] the power to vote shares of a bank or because of low demand in the Federal BILLING CODE 4150–28–P bank holding company and all of the Supply Service: OF 83, Not Mission banks and nonbanking companies Capable Supple Label (Small). owned by the bank holding company, FOR FURTHER INFORMATION CONTACT: Ms. DEPARTMENT OF HEALTH AND including the companies listed below. HUMAN SERVICES The applications listed below, as well Glynda Hughes, Department of Defense, as other related filings required by the 703 604–4578. Centers for Disease Control and Board, are available for immediate DATES: Effective March 17, 2004. Prevention inspection at the Federal Reserve Bank Dated: March 9, 2004. indicated. The application also will be Barbara M. Williams, National Center for Health Statistics, Board of Scientific Counselors available for inspection at the offices of Deputy Standard and Optional Forms the Board of Governors. Interested Management Officer, General Services In accordance with section 10(a)(2) of persons may express their views in Administration. the Federal Advisory Committee Act writing on the standards enumerated in [FR Doc. 04–5985 Filed 3–16–04; 8:45 am] (Pub. L. 92–463), the Centers for Disease the BHC Act (12 U.S.C. 1842(c)). If the BILLING CODE 6820–34–M Control and Prevention (CDC), National proposal also involves the acquisition of Center for Health Statistics (NCHS) a nonbanking company, the review also announces the following committee includes whether the acquisition of the DEPARTMENT OF HEALTH AND meeting. nonbanking company complies with the HUMAN SERVICES standards in section 4 of the BHC Act Name: Board of Scientific Counselors (12 U.S.C. 1843). Unless otherwise (BSC). Notice of Meeting of the Advisory Times and Dates: 2 p.m.–5:40 p.m. e.s.t., noted, nonbanking activities will be Committee on Blood Safety and April 22, 2004. 8:30 a.m.–3:15 p.m. e.s.t., conducted throughout the United States. Availability; Correction April 23, 2004. Additional information on all bank Place: Hubert H. Humphrey Building, 200 holding companies may be obtained AGENCY: Department of Health and Independence Avenue, SW., conference room from the National Information Center Human Services, Office of the Secretary. 705A, Washington, DC 20201. website at http://www.ffiec.gov/nic/. ACTION: Notice; correction. Status: Open to the public, limited only by Unless otherwise noted, comments the space available. The meeting room regarding each of these applications SUMMARY: The Department published a accommodates approximately 100 people. Purpose: This committee is charged with must be received at the Reserve Bank notice in the Federal Register of February 25, 2004, announcing a providing advice and making indicated or the offices of the Board of recommendations to the Secretary; the Governors not later than April 9, 2004. meeting of the Advisory Committee on Director, CDC; and Director, NCHS, regarding A. Federal Reserve Bank of Kansas Blood Safety and Availability to be held the scientific and technical program goals City (James Hunter, Assistant Vice on Wednesday, April 7, and Thursday, and objectives, strategies, and priorities of President) 925 Grand Avenue, Kansas April 8, 2004. The notice contained an NCHS. City, Missouri 64198–0001: incorrect meeting topic. Matters To Be Discussed: The agenda will 1. First Southwest Bancorporation, FOR FURTHER INFORMATION CONTACT: Jerry include welcome remarks by the Director, NCHS; introductions of members and key Inc., Alamosa, Colorado; to become a A. Holmberg, Executive Secretary, NCHS staff; scientific presentations and bank holding company by acquiring 100 Advisory Committee on Blood Safety discussions; and an open session for percent of the voting shares of First and Availability, Department of Health comments from the public. Southwest Bank, Alamosa, Colorado (in and Human Services, Office of Public Requests to make an oral presentation organization). Health and Science, 1101 Wootton should be submitted in writing to the contact

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person listed below by close of business, SUMMARY: This notice announces the of the median income for each State, as April 12, 2004. All requests to make oral estimated median income for four- annually established by the Secretary of comments should contain the name, address, person families in each State and the the Department of Health and Human telephone number, and organizational District of Columbia for FFY 2005 affiliation of the presenter. Written comments Services, is one of the income criteria should not exceed five single-spaced typed (October 1, 2004 to September 30, 2005). that LIHEAP grantees may use in pages in length and should be received by the LIHEAP grantees may adopt the State determining a household’s eligibility for contact person listed below by close of median income estimates beginning LIHEAP. business, April 12, 2004. with the date of this publication of the Agenda items are subject to change as estimates in the Federal Register or at LIHEAP is currently authorized priorities dictate. a later date as discussed below. This through the end of FFY 2005 by the For Further Information Contact: means that LIHEAP grantees could Coats Human Services Reauthorization Linda Blankenbaker, Executive Secretary, choose to implement this notice during Act of 1998, Pub. L. 105–285, which NCHS, Office of the Director, 3311 Toledo was enacted on October 27, 1998. Road, Room 7204, Hyattsville, Maryland the period between the heating and 20782, telephone (301) 458–4500, fax (301) cooling seasons. However, by October 1, Estimates of the median income of a 458–4020. 2004, or by the beginning of a grantee’s four-person family for each State and The Director, Management Analysis and fiscal year, whichever is later, LIHEAP the District of Columbia for FFY 2005 Services Office, has been delegated the grantees using State median income have been developed by the Census authority to sign Federal Register notices estimates must adjust their income pertaining to announcements of meetings and Bureau of the U.S. Department of eligibility criteria to be in accord with Commerce, using the most recently other committee management activities for the FFY 2005 State median income both CDC and the Agency for Toxic available income data. In developing the Substances and Disease Registry. estimates. This listing of estimated State median median income estimates for FFY 2005, Dated: March 11, 2004. incomes provides one of the maximum the Census Bureau used the following Alvin Hall, income criteria that LIHEAP grantees three sources of data: (1) The Current Director, Management Analysis and Services may use in determining a household’s Population Survey’s 2003 Annual Social Office, Centers for Disease Control and income eligibility for LIHEAP. and Economic Supplement File; (2) the Prevention. EFFECTIVE DATE: The estimates are 2000 Decennial Census of Population; [FR Doc. 04–5966 Filed 3–16–04; 8:45 am] effective at any time between the date of and (3) 2002 per capita personal income BILLING CODE 4163–18–P this publication and October 1, 2004, or estimates, by State, from the Bureau of by the beginning of a LIHEAP grantee’s Economic Analysis (BEA) of the U.S. fiscal year, whichever is later. Department of Commerce. DEPARTMENT OF HEALTH AND HUMAN SERVICES FOR FURTHER INFORMATION CONTACT: For further information on the Leon Litow, Administration for estimating method and data sources, Administration for Children and Children and Families, DHHS, Office of contact the Housing and Household Families Community Services, Division of Energy Economic Statistics Division, at the Assistance, 5th Floor West, 370 L’Enfant Census Bureau (301–763–3243). State Median Income Estimate for a Promenade, SW., Washington, DC A State-by-State listing of median Four-Person Family (FFY 2005); Notice 20447, Telephone: (202) 401–5304, E- of the Federal Fiscal Year (FFY) 2005 Mail: [email protected]. income, and 60 percent of median income, for a four-person family for FFY State Median Income Estimates for Use SUPPLEMENTARY INFORMATION: Under the 2005 follows. The listing describes the Under the Low Income Home Energy provisions of section 2603(7) of Title Assistance Program (LIHEAP) XXVI of the Omnibus Budget method for adjusting median income for Administered by the Administration for Reconciliation Act of 1981 (Pub. L. 97– families of different sizes as specified in Children and Families, Office of 35, as amended), we are announcing the regulations applicable to LIHEAP, at 45 Community Services, Division of estimated median income of a four- CFR 96.85(b), which was published in Energy Assistance person family for each State, the District the Federal Register on March 3, 1988 at 53 FR 6824. AGENCY: Office of Community Services, of Columbia, and the United States for ACF, DHHS. FFY 2005 (the period of October 1, Dated: March 11, 2004. 2004, through September 30, 2005). ACTION: Notice of estimated State Clarence H. Carter, Section 2605(b)(2)(B)(ii) of the median income estimates for FFY 2005. LIHEAP statute provides that 60 percent Director, Office of Community Services.

60 percent Estimated of state estimated States median in- State me- come for a dian income four-person for a four family 2 person fam- ily

Alabama ...... $53,754 $32,252 Alaska ...... 69,868 41,921 Arizona ...... 56,857 34,114 Arkansas ...... 49,551 29,731 California ...... 65,766 39,460 Colorado ...... 68,089 40,853 Connecticut ...... 81,891 49,135 Delaware ...... 69,469 41,681 Dist. of Col...... 55,692 33,415

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60 percent Estimated of state estimated median in- State me- States come for a dian income four-person for a four family 2 person fam- ily

Florida ...... 57,473 34,484 Georgia ...... 60,676 36,406 Hawaii ...... 67,564 40,538 Idaho ...... 54,279 32,567 Illinois ...... 69,168 41,501 Indiana ...... 63,022 37,813 Iowa ...... 61,238 36,743 Kansas ...... 61,926 37,156 Kentucky ...... 54,030 32,418 Louisiana ...... 52,299 31,379 Maine ...... 58,802 35,281 Maryland ...... 77,938 46,763 Massachusetts ...... 78,312 46,987 Michigan ...... 67,995 40,797 Minnesota ...... 72,379 43,427 Mississippi ...... 47,847 28,708 Missouri ...... 59,764 35,858 Montana ...... 51,791 31,075 Nebraska ...... 60,129 36,077 Nevada ...... 59,588 35,753 New Hampshire ...... 72,369 43,421 New Jersey ...... 82,406 49,444 New Mexico ...... 48,422 29,053 New York ...... 65,461 39,277 North Carolina ...... 58,227 34,936 North Dakota ...... 57,070 34,242 Ohio ...... 63,934 38,360 Oklahoma ...... 51,377 30,826 Oregon ...... 60,262 36,157 Pennsylvania ...... 64,310 38,586 Rhode Island ...... 67,646 40,588 South Carolina ...... 56,110 33,666 South Dakota ...... 55,359 33,215 Tennessee ...... 55,605 33,363 Texas ...... 56,278 33,767 Utah ...... 59,864 35,918 Vermont ...... 62,331 37,399 Virginia ...... 66,889 40,133 Washington ...... 66,531 39,919 West Virginia ...... 47,550 28,530 Wisconsin ...... 66,988 40,193 Wyoming ...... 57,148 34,289

NOTE—FFY 2005 covers the period of October 1, 2004 through September 30, 2005. The estimated median income for a four-person family living in the United States is $62,732 for FFY 2005. The estimates are effective for the Low Income Home Energy Assistance Program (LIHEAP) at any time between the date of this publication and October 1, 2004, or by the beginning of a LIHEAP grantee’s fiscal year, whichever is later. 1 In Accordance with 45 CFR 96.85, each State’s estimated median income for a four-person family is multiplied by the following percentages to adjust for family size: 52 percent for one person, 68 percent for two persons, 84 percent for three persons, 100 percent for four persons, 116 percent for five persons, and 132 percent for six persons. For each additional family member above six persons, add 3 percent to the percentage for a six-person family (132 percent), and multiply the new percentage by the State’s estimated median income for a four-person family. 2 Prepared by The Census Bureau from the Current Population Survey’s 2003 Annual Social and Economic Supplement File, 2000 Decennial Census of Population and Housing, and 2002 per capita personal income estimates, by State, from the Bureau of Economic Analysis (BEA). For further information, contact the Housing and Household Economic Statistics Division at the Census Bureau (301–763–3243).

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[FR Doc. 04–5931 Filed 3–16–04; 8:45 am] docket number found in brackets in the of automated collection techniques, BILLING CODE 4184–01–P heading of this document. when appropriate, and other forms of FOR FURTHER INFORMATION CONTACT: information technology. Karen L. Nelson, Office of Management Institutional Review Boards—(21 CFR DEPARTMENT OF HEALTH AND Programs (HFA–250), Food and Drug HUMAN SERVICES Part 56.115)—(OMB Control Number Administration, 5600 Fishers Lane, 0910–0130)—Extension Rockville, MD 20857, 301–827–1482. Food and Drug Administration SUPPLEMENTARY INFORMATION: Under the When reviewing clinical research [Docket No. 2004N–0114] PRA (44 U.S.C. 3501–3520), Federal studies regulated by FDA, IRBs are agencies must obtain approval from the required to create and maintain records Agency Information Collection Office of Management and Budget describing their operations, and make Activities; Proposed Collection; (OMB) for each collection of the records available for FDA inspection Comment Request; Institutional information they conduct or sponsor. when requested. These records include Review Boards ‘‘Collection of information’’ is defined the following: (1) Written procedures in 44 U.S.C. 3502(3) and 5 CFR describing the structure and AGENCY: Food and Drug Administration, 1320.3(c) and includes agency requests membership of the IRB and the methods HHS. or requirements that members of the that the IRB will use in performing its ACTION: Notice. public submit reports, keep records, or functions; (2) the research protocols, provide information to a third party. informed consent documents, progress SUMMARY: The Food and Drug Section 3506(c)(2)(A) of the PRA (44 reports, and reports of injuries to Administration (FDA) is announcing an U.S.C. 3506(c)(2)(A)) requires Federal subjects submitted by investigators to opportunity for public comment on the agencies to provide a 60-day notice in the IRB; (3) minutes of meetings proposed collection of certain the Federal Register concerning each showing attendance, votes and information by the agency. Under the proposed collection of information, decisions made by the IRB, the number Paperwork Reduction Act of 1995 (the including each proposed extension of an of votes on each decision for, against, PRA), Federal agencies are required to existing collection of information, and abstaining, the basis for requiring publish notice in the Federal Register before submitting the collection to OMB changes in or disapproving research; concerning each proposed collection of for approval. To comply with this records of continuing review activities; information, including each proposed requirement, FDA is publishing notice (4) copies of all correspondence extension of an existing collection of of the proposed collection of between investigators and the IRB; (5) information, and to allow 60 days for information set forth in this document. statement of significant new findings public comment in response to the With respect to the following provided to subjects of the research; and notice. This notice solicits comments on collection of information, FDA invites (6) a list of IRB members by name, the recordkeeping requirements for comments on these topics: (1) Whether showing each member’s earned degrees, institutional review boards (IRBs). the proposed collection of information representative capacity, and experience DATES: Submit written or electronic is necessary for the proper performance in sufficient detail to describe each comments on the collection of of FDA’s functions, including whether member’s contributions to the IRB’s information by May 17, 2004. the information will have practical deliberations, and any employment ADDRESSES: Submit electronic utility; (2) the accuracy of FDA’s relationship between each member and comments on the collection of estimate of the burden of the proposed the IRB’s institution. This information is information to: http://www.fda.gov/ collection of information, including the used by FDA in conducting audit dockets/ecomments. Submit written validity of the methodology and inspections of IRBs to determine comments on the collection of assumptions used; (3) ways to enhance whether IRBs and clinical investigators information to the Division of Dockets the quality, utility, and clarity of the are providing adequate protections to Management (HFA–305), Food and Drug information to be collected; and (4) human subjects participating in clinical Administration, 5630 Fishers Lane, rm. ways to minimize the burden of the research. 1061, Rockville, MD 20852. All collection of information on FDA estimates the burden of this comments should be identified with the respondents, including through the use collection of information as follows:

TABLE 1.—ESTIMATED ANNUAL RECORDKEEPING BURDEN1

CFR Sec- Annual Frequency of Rec- Hours per Record- tion No. of Recordkeepers ordkeeping Total Annual Records keeper Total Hours

56.115 5,000 14.6 73,000 4.5 328,500 Total 328,500 1 There are no capital costs or operating and maintenance costs associated with this collection of information.

The recordkeeping requirement time per meeting are required to Dated: March 9, 2004. burden is based on the following: The transcribe and type the minutes of the Jeffrey Shuren, burden for each of the paragraphs under meeting; to maintain records of Assistant Commissioner for Policy. 21 CFR 56.115 has been considered as continuing review activities; and to [FR Doc. 04–5991 Filed 3–16–04; 8:45 am] one estimated burden. FDA estimates make copies of all correspondence BILLING CODE 4160–01–S that there are approximately 5,000 IRBs. between the IRB and investigative The IRBs meet on an average of 14.6 member records, and written IRB times annually. The agency estimates procedures that are approximately five that approximately 4.5 hours of person- pages per IRB.

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DEPARTMENT OF HEALTH AND Radiological Health (HFZ–470), Food the system. At the second voice prompt, HUMAN SERVICES and Drug Administration, 9200 press 1 to order a document. Enter the Corporate Blvd., Rockville, MD 20850, document number (1231) followed by Food and Drug Administration (301) 594–2194. the pound sign (#). Follow the [Docket No. 2004D–0071] SUPPLEMENTARY INFORMATION: remaining voice prompts to complete I. Background your request. Draft Guidance for Industry and Food Persons interested in obtaining a copy and Drug Administration Staff; Class II At a public meeting held on August of the draft guidance may also do so by Special Controls Guidance Document: 7, 1997, the Gastroenterology-Urology using the Internet. CDRH maintains an External Penile Rigidity Devices; Advisory Panel (the Panel) entry on the Internet for easy access to Availability recommended that external penile rigidity devices be classified into class information including text, graphics, AGENCY: Food and Drug Administration, II. The Panel identified special controls and files that may be downloaded to a HHS. as labeling recommendations with personal computer with Internet access. ACTION: Notice. specific information for each of the Updated on a regular basis, the CDRH devices. This draft guidance document home page includes device safety alerts, SUMMARY: The Food and Drug supports the classification of external Federal Register reprints, information Administration (FDA) is announcing the penile rigidity devices into class II. The on premarket submissions (including availability of the draft guidance guidance document will serve as the lists of approved applications and entitled ‘‘Class II Special Controls special control for these devices, if the manufacturers’ addresses), small Guidance Document: External Penile proposed rule becomes final. Following manufacturer’s assistance, information Rigidity Devices.’’ This draft guidance the effective date of a final rule on video conferencing and electronic document describes a means by which classifying the devices, a manufacturer external penile rigidity devices may submissions, Mammography Matters, intending to market external penile and other device-oriented information. comply with the requirement of special rigidity devices, who addresses the The CDRH Web site may be accessed at controls for class II devices. Elsewhere issues covered in the special control http://www.fda.gov/cdrh. A search in this issue of the Federal Register, guidance before introducing its device FDA is issuing a proposed rule to into commercial distribution in the capability for all CDRH guidance classify external penile rigidity devices United States, will be able to market its documents is available at http:// into class II with special controls. The device without being subject to the www.fda.gov/cdrh/guidance.html. proposed rule also announces FDA’s premarket notification requirements of Guidance documents are also available intent to exempt external penile rigidity section 510(k) of the Federal Food, Drug on the Division of Dockets Management devices from premarket notification and Cosmetic Act. However, the firm Internet site at http://www.fda.gov/ requirements. This draft guidance is need only show that its device meets the ohrms/dockets. neither final nor is it in effect at this recommendations of the guidance or in IV. Paperwork Reduction Act of 1995 time. some other way provides equivalent DATES: Submit written or electronic assurances of safety and effectiveness. This draft guidance contains comments on this draft guidance by FDA may not implement the guidance information collection provisions that June 15, 2004. until the agency completes notice and are subject to review by the Office of ADDRESSES: Submit written requests for comment rulemaking to classify the Management and Budget (OMB) under single copies on a 3.5″ diskette of the devices. the Paperwork Reduction Act of 1995 The draft guidance identifies the risks draft guidance document entitled ‘‘Class (44 USC 3501–3520) (the PRA). The to health and serves as a special control II Special Controls Guidance Document: labeling provisions addressed in the that, when followed and combined with External Penile Rigidity Devices’’ to the draft guidance have been approved by the general controls, addresses the risks Division of Small Manufacturers, OMB under the PRA under OMB control associated with this type of generic International, and Consumer Assistance device. number 0910–0485. (HFZ–220), Center for Devices and Radiological Health, Food and Drug II. Significance of Guidance V. Comments Administration, 1350 Piccard Dr., This draft guidance is being issued Interested persons may submit to the Rockville, MD 20850. Send one self- consistent with FDA’s good guidance Division of Dockets Management (see addressed adhesive label to assist that practices regulation (21 CFR 10.115). ADDRESSES), written or electronic office in processing your request, or fax The draft guidance represents the comments regarding this document. your request to (301) 443–8818. See the agency’s current thinking on external Submit a single copy of electronic SUPPLEMENTARY INFORMATION section for penile rigidity devices. It does not create comments to http://www.fda.gov/ information on electronic access to the or confer any rights for or on any person draft guidance. dockets/ecomments. Submit two paper and does not operate to bind FDA or the copies of any mailed comments, except Submit written comments concerning public. An alternative approach may be this draft guidance to the Division of that individuals may submit one paper used if such approach satisfies the copy. Comments are to identified with Dockets Management (HFA–305), Food requirements of the applicable statute the docket number found in brackets in and Drug Administration, 5630 Fishers and regulations. Lane, rm. 1061, Rockville, MD 20852. the heading of this document. Submit electronic comments to http:// III. Electronic Access Comments received may be seen in the www.fda.gov/dockets/ecomments. To receive ‘‘Class II Special Controls Division of Dockets Management Identify comments with the docket Guidance Document: External Penile between 9 a.m. and 4 p.m., Monday number found in brackets in the Rigidity Devices’’ by fax machine, call through Friday. heading of this document. the CDRH Facts-On-Demand system at FOR FURTHER INFORMATION CONTACT: 800–899–0381 or 301–827–0111 from a Janine Morris, Center for Devices and touch-tone telephone. Press 1 to enter

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Dated: March 4, 2004. Dated: March 11, 2004. Dated: March 10, 2004. Beverly Chernaik Rothstein, LaVerne Y. Stringfield, LaVerne Y. Stringfield, Acting Deputy Director for Policy and Director, Office of Federal Advisory Director, Office of Federal Advisory Regulations, Center for Devices and Committee Policy. Committee Policy. Radiological Health. [FR Doc. 04–6010 Filed 3–16–04; 8:45 am] [FR Doc. 04–5956 Filed 3–16–04; 8:45 am] [FR Doc. 04–5979 Filed 3–16–04; 8:45 am] BILLING CODE 4140–01–M BILLING CODE 4140–01–M BILLING CODE 4160–01–S

DEPARTMENT OF HEALTH AND DEPARTMENT OF HEALTH AND DEPARTMENT OF HEALTH AND HUMAN SERVICES HUMAN SERVICES HUMAN SERVICES National Institutes of Health National Institutes of Health National Institutes of Health National Institute of Diabetes and National Cancer Institute; Notice of National Institute of Environmental Digestive and Kidney Diseases; Notice Meeting Health Sciences; Notice of Closed of Closed Meetings Meeting Pursuant to section 10(a) of the Pursuant to section 10(d) of the Federal Advisory Committee Act, as Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of a meeting of the amended (5 U.S.C. Appendix 2), notice is hereby given of the following Advisory Committee to the Director, is hereby given of the following meetings. National Cancer Institute. meeting. The meetings will be closed to the public in accordance with the The meeting will be open to the The meeting will be closed to the provisions set forth in sections public, with attendance limited to space public in accordance with the 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., available. Individuals who plan to provisions set forth in sections as amended. The grant applications and attend and need special assistance, such 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., the discussions could disclose as sign language interpretation or other as amended. The grant applications and confidential trade secrets or commercial reasonable accommodations, should the discussions could disclose property such as patentable material, notify the Contact Person listed below confidential trade secrets of commercial and personal information concerning in advance of the meeting. property such as patentable material, individuals associated with the grant Name of Committee: Advisory Committee and personal information concerning applications, the disclosure of which to the Director, National Cancer Institute. individuals associated with the grant would constitute a clearly unwarranted Date: March 17, 2004. applications, the disclosure of which invasion of personal privacy. Time: 10:45 a.m. to 11:15 a.m. Agenda: The purpose of this meeting will would constitute a clearly unwarranted Name of Committee: National Institute of be to discuss the Cancer Health Disparities invasion of personal privacy. Diabetes and Digestive and Kidney Diseases Special Emphasis Panel; Ambulatory BP Progress Review Group Report. Name of Committee: National Institute of Place: National Institutes of Health, Monitoring in Chronic Renal Disease. Environmental Health Sciences Special Building 31, Room 11A03, 31 Center Drive, Date: April 8, 2004. Emphasis Panel Loan Repayment Review. Bethesda, MD 20892, (Telephone Conference Time: 12 p.m. to 1:30 p.m. Call). Date: April 27, 2004. Agenda: To review and evaluate grant Contact Person: Cherie Nichols, Executive Time: 1 p.m. to 4 p.m. applications. Secretary, National Cancer Institute, National Agenda: To review and evaluate grant Place: National Institutes of Health, Two Institute of Health, Building 31, Room applications. Democracy Plaza, 6707 Democracy 11A03, Bethesda, MD 20892, (301) 496–5515. Place: NIEHS/National Institutes of Health, Boulevard, Bethesda, MD 20892, (Telephone Conference Call). Building 4401, East Campus, 79 T.W. This notice is being published less than 15 Contact Person: Neal A. Musto, PhD, days prior to the meeting due to scheduling Alexander Drive, 122 Research Triangle Park, Scientific Review Administrator, Review conflicts. NC 27709, (Telephone Conference Call). Branch, DEA, NIDDK, National Institutes of Any interested person may file written Contact Person: RoseAnne M. McGee, Health, Room 751, 6707 Democracy comments with the committee by forwarding Associate Scientific Review Administrator, Boulevard, Bethesda, MD 20892–5452, (301) the statement to the Contact Person listed on Scientific Review Branch, Office of Program 594–7798, [email protected]. this notice. The statement should include the Operations, Division of Extramural Research This notice is being published less than 15 name, address, telephone number and when and Training, Nat. Inst. of Environmental days prior to the meeting due to the timing applicable, the business or professional Health Sciences, P.O. Box 12233, MD EC–30, limitations imposed by the review and affiliation of the interested person. funding cycle. Information is also available on the Research Triangle Park, NC 27709, 919/541– 0752. Name of Committee: National Institute of Institute’s/Center home page: Diabetes and Digestive and Kidney Diseases deainfo.nci.nih.gov/advisory/joint/htm, (Catalogue of Federal Domestic Assistance Special Emphasis Panel; Esophagel Varices. where an agenda and any additional Program Nos. 93.115, Biometry and Risk Date: April 13, 2004. information for the meeting will be posted Estimation—Health Risks from Time: 4:30 p.m. to 6 p.m. when available. Environmental Exposures; 93.142, NIEHS Agenda: To review and evaluate grant (Catalogue of Federal Domestic Assistance Hazardous Waste Worker Health and Safety applications. Program Nos 93.392, Cancer Construction; Training; 93.143, NIEHS Superfund Place: National Institutes of Health, Two 93.393, Cancer Cause and Prevention Hazardous Substances—Basic Research and Democracy Plaza, 6707 Democracy Research; 93.394, Cancer Detection and Education; 93.894, Resources and Manpower Boulevard, Bethesda, MD 20892, (Telephone Diagnosis Research; 93.395, Cancer Conference Call). Development in the Environmental Health Treatment Research; 93.396, Cancer Biology Contact Person: Maria E. Davila-Bloom, Research; 93.397, Cancer Centers Support; Sciences; 93.113, Biological Response to PhD, Scientific Review Administrator, 93.398, Cancer Research Manpower; 93.399, Environmental Health Hazards; 93.114, Review Branch, DEA, NIDDK, National Cancer Control, National Institutes of Health, Applied Toxicological Research and Testing, Institutes of Health, Room 758, 6707 HHS) National Institutes of Health, HHS) Democracy Boulevard, Bethesda, MD 20892–

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5452, (301) 594–7637, davila- DEPARTMENT OF HEALTH AND DEPARTMENT OF HEALTH AND [email protected]. HUMAN SERVICES HUMAN SERVICES Name of Committee: National Institute of Diabetes and Digestive and Kidney Diseases National Institutes of Health National Institutes of Health Special Emphasis Panel; Endocrinopathies of Chronic Renal Insufficiency. National Institute of Alcohol Abuse and National Institute on Alcohol Abuse Date: April 14, 2004. Alcoholism; Notice of Closed Meeting and Alcoholism; Notice of Closed Time: 3 p.m. to 4:30 p.m. Meetings Agenda: To review and evaluate grant Pursuant to section 10(d) of the applications. Federal Advisory Committee Act, as Pursuant to section 10(d) of the Place: National Institutes of Health, Two amended (5 U.S.C. Appendix 2), notice Federal Advisory Committee Act, as Democracy Plaza, 6707 Democracy is hereby given of the following amended (5 U.S.C. Appendix 2), notice Boulevard, Bethesda, MD 20892, (Telephone meeting. is hereby given of the following Conference Call). meetings. The meeting will be closed to the Contact Person: Neal A. Musto, PhD, The meeting will be closed to the Scientific Review Administrator, Review public in accordance with the provisions set forth in sections public in accordance with the Branch, DEA, NIDDK, National Institutes of provisions set forth in sections 552b(c)(4) and 552b(c)(6), title 5 U.S.C., Health, Room 751, 6707 Democracy 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and Boulevard, Bethesda, MD 20892–5452, (301) as amended. The grant applications and 594–7798, [email protected]. the discussions could disclose the discussions could disclose Name of Committee: National Institute of confidential trade secrets or commercial confidential trade secrets or commercial Diabetes and Digestive and Kidney Diseases property such as patentable material, property such as patentable material, Special Emphasis Panel; Strategies for and personal information concerning and personal information concerning Improved Shock Wave Lithotripsy. individuals associated with grant individuals associated with the grant Date: April 23, 2004. applications, the disclosure of which applications, the disclosure of which Time: 1 p.m. to 4 p.m. would constitute a clearly unwarranted would constitute a clearly unwarranted Agenda: To review and evaluate grant invasion of personal privacy. invasion of personal privacy. applications. Name of Committee: National Institute of Name of Committee: National Institute on Place: National Institutes of Health, Two Alcohol Abuse and Alcoholism Special Alcohol Abuse and Alcoholism Special Democracy Plaza, 6707 Democracy Emphasis Panel; ZAA1 HH (12) Review of Emphasis Panel, Review of U10 COGA Boulevard, Bethesda, MD 20892, (Telephone U18 Grant application. Application. Conference Call). Date: March 22, 2004. Date: April 12–14, 2004. Contact Person: Ned Feder, MD, Scientific Time: 1 p.m. to 2 p.m. Time: 7 p.m. to 10 p.m. Review Administrator, Review Branch, DEA, Agenda: To review and evaluate grant Agenda: To review and evaluate NIDDK, National Institutes of Health, Room applications. cooperative agreement applications. 748, 6707 Democracy Boulevard, Bethesda, Place: National Institutes of Health, Place: Hyatt Regency Bethesda, One MD 20892–5452, (301) 594–8890, Bethesda Metro Center, 7400 Wisconsin NIAAA, 5635 Fishers Lane, 3033, Rockville, [email protected]. Avenue, Bethesda, MD 20814. MD 20852 (Telephone Conference Call). Contact Person: Mahadev Murthy, PhD, Name of Committee: National Institute of Contact Person: Jeffrey I. Toward, PhD, Diabetes ad Digestive and Kidney Diseases Scientific Review Administrator, Extramural Scientific Review Administrator, National Project Review Branch, Office of Scientific Special Emphasis Panel Digestive Diseases Institutes of Health, National Institute on Affairs, National Institute on Alcohol Abuse Research Core Centers. Alcohol Abuse and Alcoholism, Extramural and Alcoholism, 6000 Executive Blvd, Suite Date: April 26–27, 2004. Project Review Branch, OSA, 5635 Fishers 409, Bethesda, MD 20892–7003. (301) 443– Time: 8 a.m. to 2 p.m. Lane, Bethesda, MD 20892–9304, (301) 435– 2860. Agenda: To review and evaluate grant 5337, [email protected]. Name of Committee: National Institute on applications. This notice is being published less than 15 Alcohol Abuse and Alcoholism Special Place: Embassy Suites Hotel—BWI, 1300 days prior to the meeting due to the timing Emphasis Panel, ZAA1 HH (10) Grant Concourse Drive, Linthicum, MD 21090. limitations imposed by the review and Application Review. Contact Person: Dan E. Matsumoto, PhD, funding cycle. Date: April 16, 2004. Scientific Review Administrator, Review (Catalogue of Federal Domestic Assistance Time: 8 a.m. to 5 p.m. Branch, DEA, NIDDK, Room 749, 6707 Program Nos. 93.271, Alcohol Research Agenda: To review and evaluate grant Democracy Boulevard, National Institutes of applications. Career Development Awards for Scientists Health, Bethesda, MD 20892–5452, (301) Place: Hyatt Regency Bethesda, One and Clinicians; 93.272, Alcohol National 594–884, [email protected]. Bethesda Metro Center, 7400 Wisconsin Research Service Awards for Research Avenue, Bethesda, MD 20814. (Catalogue of Federal Domestic Assistance Training; 93.273, Alcohol Research Programs; Contact Person: Jeffrey I. Toward, PhD, Program Nos. 93.847, Diabetes, 93.891, Alcohol Research Center Grants, Scientific Review Administrator, National Endocrinology and Metabolic Research; National Institutes of Health, HHS) Institutes of Health, National Institute on 93.848, Digestive Diseases and Nutrition Dated: March 11, 2004. Alcohol Abuse and Alcoholism, Extramural Research; 93.849, Kidney Diseases, Urology Project Review Branch, 6000 Executive Blvd., and Hematology Research, National Institutes LaVerne Y. Stringfield, Suite 409, Bethesda, MD 20892–7003. (301) of Health, HHS) Director, Office of Federal Advisory 435–5337; [email protected]. Dated: March 10, 2004. Committee Policy. (Catalogue of Federal Domestic Assistance LaVerne Y. Stringfield, [FR Doc. 04–6009 Filed 3–16–04; 8:45 am] Program Nos. 93.271, Alcohol Research Director, Office of Federal Advisory BILLING CODE 4140–01–M Career Development Awards for Scientists and Clinicians; 93.272, Alcohol National Committee Policy. Research Service Awards for Research [FR Doc. 04–5957 Filed 3–16–04; 8:45 am] Training; 93.273 Alcohol Research Programs; BILLING CODE 4140–01–M 93.891, Alcohol Research Center Grants, National Institutes of Health, HHS.)

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Dated: March 11, 2004. Service Awards for Research Training, 6001 Executive Blvd., Room 6153, MSC 9608, LaVerne Y. Stringfield, National Institutes of Health, HHS) Bethesda, MD 20892–9608, 301–402–8152, [email protected]. Director, Office of Federal Advisory Dated: March 11, 2004. Committee Policy. LaVerne Y. Stringfield, (Catalogue of Federal Domestic Assistance Program Nos. 93.242, Mental Health Research [FR Doc. 04–6011 Filed 3–16–04; 8:45 am] Director, Office of Federal Advisory Grants; 93.281, Scientist Development BILLING CODE 4140–01–M Committee Policy. Award, Scientist Development Award for [FR Doc. 04–6012 Filed 3–16–04; 8:45 am] Clinicians, and Research Scientist Award; BILLING CODE 4140–01–M 93.282, Mental Health National Research DEPARTMENT OF HEALTH AND Service Awards for Research Training, HUMAN SERVICES National Institutes of Health, HHS) DEPARTMENT OF HEALTH AND Dated: March 11, 2004. National Institutes of Health HUMAN SERVICES LaVerne Y. Stringfield, National Institute of Mental Health; National Institutes of Health Director, Office of Federal Advisory Notice of Closed Meeting Committee Policy. National Institute of Mental Health; [FR Doc. 04–6013 Filed 3–16–04; 8:45 am] Pursuant to section 10(d) of the Notice of Closed Meetings BILLING CODE 4140–01–M Federal Advisory Committee Act, as amended (5 U.S.C. appendix 2), notice Pursuant to section 10(d) of the is hereby given of a meeting of the Federal Advisory Committee Act, as DEPARTMENT OF HEALTH AND Board of Scientific Counselors, National amended (5 U.S.C. appendix 2), notice HUMAN SERVICES Institute of Mental Health. The meetings is hereby given of the following will be closed to the public in meetings. National Institutes of Health accordance with the provisions set forth The meetings will be closed to the in section 552b(c)(6), title 5 U.S.C., as public in accordance with the National Institutes of Child Health and amended for the review, discussion, and provisions set forth in sections Human Development; Notice of Closed evaluation of individual intramural 552b(c)(4) and 552b(c)(6), title 5 U.S.C., Meeting programs and projects conducted by the as amended. The grant applications and National Institute of Mental Health, the discussions could disclose Pursuant to section 10(d) of the including consideration of personnel confidential trade secrets or commercial Federal Advisory Committee Act, as qualifications and performance, and the property such as patentable material, amended (5 U.S.C. appendix 2), notice competence of individual investigators, and personal information concerning is hereby given of the following the disclosure of which would individuals associated with the grant meeting. constitute a clearly unwarranted applications, the disclosure of which The meeting will be closed to the invasion of personal privacy. would constitute a clearly unwarranted public in accordance with the invasion of personal privacy. provisions set forth in sections Name of Committee: Board of Scientific 552b(c)(4) and 552b(c)(6), title 5 U.S.C., Counselors, National Institute of Mental Name of Committee: National Institute of as amended. The grant applications and Health. Mental Health Special Emphasis Panel, SRV Date: March 28–30, 2004. Related SEP Collaborative R01’s. the discussions could disclose Time: 8 a.m. to 4:30 p.m. Date: March 25, 2004. confidential trade secrets or commercial Agenda: To review and evaluate personal Time: 11 a.m. to 12:30 p.m. property such as patentable material, qualifications and performance, and Agenda: To review and evaluate grant and personal information concerning competence of individual investigators. applications. individuals associated with the grant Place: Hyatt Regency Bethesda, One Place: National Institutes of Health, applications, the disclosure of which Bethesda Metro Center, 7400 Wisconsin Neuroscience Center, 6001 Executive would constitute a clearly unwarranted Avenue, Bethesda, MD 20814. Boulevard, Rockville, MD 20852 (Telephone invasion of personal privacy. Contact Person: Susan Koester, PhD, Conference Call). Executive Secretary, Associate Director for Contact Person: Mark Czarnolewski, PhD, Name of Committee: National Institute of Science, Intramural Research Program, Scientific Review Administrator, Division of Child Health and Human Development National Institute of Mental Health, NIH, Extramural Activities, National Institute of Special Emphasis Panel; Androgens, Insulin Building 10, Room 4N222, MSC 1381, Mental Health, NIH, Neuroscience Center, Resistance and Childhood Diabetes. Bethesda, MD 20892–1381, 301–496–3501. 6001 Executive Blvd., Room 6153, MSC 9608, Date: April 9, 2004. Bethesda, MD 20892–9608, 301–402–8152, Time: 3 p.m. to 4:30 p.m. This notice is being published less Agenda: To review and evaluate grant than 15 days prior to the meeting due [email protected]. This notice is being published less than 15 applications. to the timing limitations imposed by the days prior to the meeting due to the timing Place: National Institutes of Health, 6100 review and funding cycle. limitations imposed by the review and Executive Boulevard, Room 5B01, Rockville, Any interested person may file funding cycle. MD 20852 (Telephone Conference Call). written comments with the committee Name of Committee: National Institute of Contact Person: Jon M. Ranhand, PhD, by forwarding the statement to the Mental Health Special Emphasis Panel, Scientist Review Administrator, Division of Cooperative Agreements. Scientific Review, National Institute of Child Contact Person listed on this notice. The Health, and Human Development, NIH, 6100 statement should include the name, Date: April 8, 2004. Time: 11 a.m. to 12 p.m. Executive Boulevard, Room 5B01, Bethesda, address, telephone number and when MD 20892, (301) 435–6884, applicable, the business or professional Agenda: To review and evaluate grant applications. [email protected]. affiliation of the interested person. Place: Hyatt Regency Bethesda, One (Catalog of Federal Domestic Assistance (Catalogue of Federal Domestic Assistance Bethesda Metro Center, 7400 Wisconsin Program Nos. 93.864, Population Research; Program Nos. 93.242, Mental Health Research Avenue, Bethesda, MD 20814. 93.865, Research for Mothers and Children; Grants; 93.281, Scientist Development Contact Person: Marina Broitman, PhD, 93.929, Center for Medical Rehabilitation Award, Scientist Development Award for Scientific Review Administrator, Division of Research; 93.209, Contraception and Clinicians, and Research Scientist Award; Extramural Activities, National Institute of Infertility Loan Repayment Program, National 93.282, Mental Health National Research Mental Health, NIH, Neuroscience Center, Institutes of Health, HHS)

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Dated: March 11, 2004. Dated: March 11, 2004. Place: National Institutes of Health, 6701 LaVerne Y. Stringfield, LaVerne Y. Stringfield, Rockledge Drive, Bethesda, MD 20892, (Telephone Conference Call). Director, Office of Federal Advisory Director, Office of Federal Advisory Contact Person: Lee S. Mann, PhD, Committee Policy. Committee Policy. Scientific Review Administrator, Center for [FR Doc. 04–6014 Filed 3–16–04; 8:45 am] [FR Doc. 04–6015 Filed 3–16–04; 8:45 am] Scientific Review, National Institutes of BILLING CODE 4140–01–M BILLING CODE 4140–01–M Health, 6701 Rockledge Drive, Room 3186, MSC 7848, Bethesda, MD 20892, 301–435– 0677, [email protected]. DEPARTMENT OF HEALTH AND DEPARTMENT OF HEALTH AND This notice is being published less than 15 HUMAN SERVICES days prior to the meeting due to the timing HUMAN SERVICES limitations imposed by the review and National Institutes of Health funding cycle. National Institutes of Health Name of Committee: Cardiovascular Center for Scientific Review; Amended Sciences Integrated Review Group National Institute of Child Health and Notice of Meeting Cardiovascular Differentiation and Human Development; Notice of Closed Development Study Section. Meeting Notice is hereby given of a change in Date: March 24–25, 2004. the meeting of the Center for Scientific Time: 8 a.m. to 3 p.m. Pursuant to section 10(d) of the Review Special Emphasis Panel, March Agenda: To review and evaluate grant Federal Advisory Committee Act, as 12, 2004, 11 a.m. to March 12, 2004, 12 applications. amended (5 U.S.C. appendix 2), notice p.m., National Institutes of Health, 6701 Place: Churchill Hotel, 1914 Connecticut is hereby given of the following Rockledge Drive, Bethesda, MD 20892 Avenue, NW., Washington, DC 20009. Contact Person: Larry Pinkus, PhD, meeting. which was published in the Federal Scientific Review Administrator, Center for The meeting will be closed to the Register on March 8, 2004, 69 FR Scientific Review, National Institutes of public in accordance with the 10727–10730. Health, 6701 Rockledge Drive, Room 4132, provisions set forth in sections The meeting will be held March 18, MSC 7802, Bethesda, MD 20892, (301) 435– 552b(c)(4) and 552b(c)(6), title 5 U.S.C., 2004. The meeting time and location 1214, [email protected]. This notice is being published less than 15 as amended. The grant applications and remain the same. The meeting is closed to the public. days prior to the meeting due to the timing the discussions could disclose limitations imposed by the review and confidential trade secrets or commercial Dated: March 10, 2004. funding cycle. property such as patentable material, LaVerne Y. Stringfield, Name of Committee: Center for Scientific and personal information concerning Director, Office of Federal Advisory Review Special Emphasis Panel individuals associated with the grant Committee Policy. Identification, Characterization and applications, the disclosure of which [FR Doc. 04–5955 Filed 3–16–04; 8:45 am] Inactivation of Viruses, Fungi and Parasites. would constitute a clearly unwarranted BILLING CODE 4140–01–M Date: March 25–26, 2004. invasion of personal privacy. Time: 8 a.m. to 5 p.m. Agenda: To review and evaluate grant Name of Committee: National DEPARTMENT OF HEALTH AND applications. Institute of Child Health and Human Place: Swissotel Washington, The HUMAN SERVICES Development Special Emphasis Panel; Watergate, 2650 Virginia Avenue, NW., Washington, DC 20037. Modeling Complex Exposures and National Institutes of Health Reproductive Outcomes. Contact Person: Richard G. Kostriken, PhD, Scientific Review Administrator, Center for Date:April 8, 2004. Center for Scientific Review; Notice of Scientific Review, National Institutes of Closed Meetings Time: 2:30 p.m. to 3:30 p.m. Health, 6701 Rockledge Drive, Room 3184, Pursuant to section 10(d) of the MSC 7808, Betehsda, MD 20892, 301–402– Agenda: To review and evaluate grant 4454, [email protected]. applications. Federal Advisory Committee Act, as This notice is being published less than 15 amended (5 U.S.C. Appendix 2), notice days prior to the meeting due to the timing Place: NICHD, 6100 Executive Blvd., is hereby given of the following Room 5B01, Bethesda, MD 20892 limitations imposed by the review and meetings. funding cycle. (Telephone Conference Call). The meetings will be closed to the Name of Committee: Center for Scientific Contact Person: Gopal M. Bhatnagar, public in accordance with the Review Special Emphasis Panel PhD, Scientific Review Administrator, provisions set forth in sections Photoreceptors Response and Visual National Institute of Child Health and 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Sensitivity. Human Development, National as amended. The grant applications and Date: March 25, 2004. Institutes of Health, 6100 Bldg Rm 5B01, the discussions could disclose Time: 1 p.m. to 3 p.m. Rockville, MD 20852, (301) 435–6889, confidential trade secrets or commercial Agenda: To review and evaluate grant [email protected]. property such as patentable material, applications. Place: National Institutes of Health, 6701 This notice is being published less and personal information concerning individuals associated with the grant Rockledge Drive, Bethesda, MD 20892, than 15 days prior to the meeting due (Telephone Conference Call). to the timing limitations imposed by the applications, the disclosure of which would constitute a clearly unwarranted Contact Person: Marcia Steinberg, PhD, review and funding cycle. Scientific Review Administrator, Center for invasion of personal privacy. Scientific Review, National Institutes of (Catalogue of Federal Domestic Assistance Name of Committee: Center for Scientific Health, 6701 Rockledge Drive, Room 5140, Program Nos. 93.864, Population Research; Review Special Emphasis Panel Obesity and MSC 7840, Bethesda, MD20892, (301) 435– 93.865, Research for Mothers and Children; Weight Loss. 1023, [email protected]. 93.929, Center for Medical Rehabilitation Date: March 22, 2004. This notice is being published less than 15 Research; 93.209, Contraception and Time: 9 a.m. to 10:30 a.m. days prior to the meeting due to the timing Infertility Loan Repayment Program, National Agenda: To review and evaluate grant limitations imposed by the review and Institutes of Health, HHS) applications. funding cycle.

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Name of Committee: Center for Scientific Scientific Review, Genetic Sciences Time: 11 a.m. to 1:30 p.m. Review Special Emphasis Panel Left Integrated Review Group, National Institutes Agenda: To review and evaluate grant Ventrical Assist Devices. of Health, 6701 Rockledge Drive, Room 4190, applications. Date: March 31, 2004. MSC 7826, Bethesda, MD 20892, 301–435– Place: National Institutes of Health, 6701 Time: 1 p.m. to 6 p.m. 1159, [email protected]. Rockledge Drive, Bethesda, MD 20892, Agenda: To review and evaluate grant Name of Committee: Center for Scientific (Telephone Conference Call). applications. Review Special Emphasis Panel Bcl–2 and Contact Person: Abraham P. Bautista, MS, Place: Holiday Inn Select Bethesda, 8120 Cancer Therapy. PhD, Scientific Review Administrator, Center Wisconsin Ave, Bethesda, MD 20814. Date: April 5, 2004. for Scientific Review, National Institutes of Contact Person: Anshumali Chaudhari, Time: 1:30 p.m. to 3:30 p.m. Health, 6701 Rockledge Drive, Room 5102, PhD, Scientific Review Administrator, Center Agenda: To review and evaluate grant MSC 7852, Bethesda, MD 20892, (301) 435– for Scientific Review, National Institutes of applications. 1506, [email protected]. Health, 6701 Rockledge Drive, Room 4124, Place: National Institutes of Health, 6701 Name of Committee: Center for Scientific MSC 7802, Bethesda, MD 20892, (301) 435– Rockledge Drive, Bethesda, MD 20892, Review Special Emphasis Panel, Anti- 1210. (Telephone Conference Call). angiogenesis and Tumor Development. Name of Committee: Center for Scientific Contact Person: Eun Ah Cho, PhD, Date: April 7, 2004. Review Special Emphasis Panel Molecular Scientific Review Administrator, Center for Time: 2 p.m. to 4 p.m. Genetics of Shark Natural Antibodies. Scientific Review, Genetic Sciences Agenda: To review and evaluate grant Date: April 2, 2004. Integrated Review Group, National Institutes applications. Time: 10 a.m. to 11 a.m. of Health, 6701 Rockledge Drive, Room 6202, Place: National Institutes of Health, 6701 Agenda: To review and evaluate grant MSC 7804, Bethesda, MD 20892, 301–451– Rockledge Drive, Bethesda, MD 20892, applications. 4467, [email protected]. (Telephone Conference Call). Contact Person: Eun Ah Cho, PhD, Place: National Institutes of Health, 6701 Name of Committee: Center for Scientific Scientific Review Administrator, Center for Rockledge Drive, Bethesda, MD 20892, Review Special Emphasis Panel Regulatory T Scientific Review, National Institutes of (Telephone Conference Call). cells and Cancer. Health, 6701 Rockledge Drive, Room 6202, Contact Person: Betty Hayden, PhD, Date: April 5, 2004. MSC 7804, Bethesda, MD 20892, (301) 451– Scientific Review Administrator, Center for Time: 12 p.m. to 1 p.m. 4467, [email protected]. Scientific Review, National Institutes of Agenda: To review and evaluate grant Health, 6701 Rockledge Drive, Room 4206, applications. Name of Committee: Center for Scientific MSC 7812, Bethesda, MD 20892, (301) 435– Place: National Institutes of Health, 6701 Review Special Emphasis Panel, Nuclear 1223, [email protected]. Rockledge Drive, Bethesda, MD 20892, Magnetic Resonance Technology. Name of Committee: Center for Scientific (Telephone Conference Call). Date: April 7, 2004. Review Special Emphasis Panel Heat Shock Contact Person: Betty Hayden, PhD, Time: 12 p.m. to 2 p.m. Proteins and Inflammation. Scientific Review Administrator, Center for Agenda: To review and evaluate grant Date: April 2, 2004. Scientific Review, National Institutes of applications. Time: 12 p.m. to 1 p.m. Health, 6701 Rockledge Drive, Room 4206, Place: National Institutes of Health, 6701 Agenda: To review and evlauate grant MSC 7812, Bethesda, MD 20892, 301–435– Rockledge Drive, Bethesda, MD 20892, applications. 1223, [email protected]. (Telephone Conference Call). Place: National Institutes of Health, 6701 Contact Person: George W. Chacko, PhD, Name of Committee: Center for Scientific Scientific Review Administrator, Center for Rockledge Drive, Bethesda, MD 20892, Review Special Emphasis Panel (Telephone Conference Call). Scientific Review, National Institutes of Hyperaccelerated Award/Mechanisms in Health, 6701 Rockledge Drive, Room 4186, Contact Person: Betty Hayden, PhD, Immunomodulation Trials. Scientific Review Administrator, Center for MSC 7806, Bethesda, MD 20892, (301) 435– Date: April 6, 2004. 1220, [email protected]. Scientific Review, National Institutes of Time: 1 p.m. to 2:30 p.m. Health, 6701 Rockledge Drive, Room 4206, Agenda: To review and evaluate grant Name of Committee: Center for Scientific MSC 7812, Bethesda, MD 20892, (301) 435– applications. Review Special Emphasis Panel, AIDS Opportunistic Infections and Cancer. 1223, [email protected]. Place: National Institutes of Health, 6701 Date: April 8, 2004. Name of Committee: Center for Scientific Rockledge Drive, Bethesda, MD 20892, Time: 11 a.m. to 12 p.m. Review Special Emphasis Panel Behavioral (Telephone Conference Call). Agenda: To review and evaluate grant Neuroscience. Contact Person: Samuel C. Edwards, PhD, applications. Date: April 5, 2004. Scientific Review Administrator, Center for Place: National Institutes of Health, 6701 Time: 9:30 a.m. to 11:30 a.m. Scientific Review, National Institutes of Rockledge Drive, Bethesda, MD 20892, Agenda: To review and evaluate grant Health, 6701 Rockledge Drive, Room 4200, (Telephone Conference Call). applications. MSC 7812, Bethesda, MD 20892, 301–435– Contact Person: Abraham P. Bautista, MS, Place: National Institutes of Health, 6701 1152, [email protected]. PhD, Scientific Review Administrator, Center Rockledge Drive, Bethesda, MD 20892, Name of Committee: Center for Scientific for Scientific Review, National Institutes of (Telephone Conference Call). Review Special Emphasis Panel Mutation Health, 6701 Rockledge Drive, Room 5102, Contact Person: Mary Sue Krause, MED, and Susceptibility to Cancer. MSC 7852, Bethesda, MD 20892, (301) 435– Scientific Review Administrator, Center for Date: April 6, 2004. 1506, [email protected]. Scientific Review, National Institutes of Time: 2 p.m. to 4 p.m. Health, 6701 Rockledge Drive, Room 3182, Name of Committee: Center for Scientific Agenda: To review and evaluate grant Review Special Emphasis Panel, Cancer MSC 7848, Bethesda, MD 20892, 301–35– applications. 0902, [email protected]. Biomaker. Place: National Institutes of Health, 6701 Date: April 8, 2004. Name of Committee: Center for Scientific Rockledge Drive, Bethesda, MD 20892, Time: 1:30 p.m. to 3:30 p.m. Review Special Emphasis Panel Quantitative (Telephone Conference Call). Agenda: To review and evaluate grant Methods in Pharmacology. Contact Person: Eun Ah Cho, PhD, applications. Date: April 5, 2004. Scientific Review Administrator, Center for Place: National Institutes of Health, 6701 Time: 1:30 p.m. to 2:30 p.m. Scientific Review, National Institutes of Rockledge Drive, Bethesda, MD 20892, Agenda: To review and evaluate grant Health, 6701 Rockledge Drive, Room 6202, (Telephone Conference Call). applications. MSC 7804, Bethesda, MD 20892, (301) 451– Contact Person: Eun Ah Cho, PhD, Place: National Institutes of Health, 6701 4467, [email protected]. Scientific Review Administrator, Center for Rockledge Drive, Bethesda, MD 20892, Name of Committee: Center for Scientific Scientific Review, National Institutes of (Telephone Conference Call). Review Special Emphasis Panel, AIDS Health, 6701 Rockledge Drive, Room 6202, Contact Person: Sally Ann Amero, PhD, Opportunistic Infections and Cancer. MSC 7804, Bethesda, MD 20892, (301) 451– Scientific Review Administrator, Center for Date: April 7, 2004. 4467, [email protected].

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Name of Committee: Center for Scientific (Catalogue of Federal Domestic Assistance and Urban Development, 451 Seventh Review Special Emphasis Panel Immunology: Program Nos. 93.306, Comparative Medicine; Street, SW., Washington, DC 20410; e- Physiologic Cell Death. 93.333, Clinical Research, 93.306, 93.333, mail [email protected]; Date: April 8, 2004. 93.337, 93.393–93.396, 93.837–93.844, telephone (202) 708–2374. This is not a Time: 1:30 p.m. to 2:30 p.m. 93.846–93.878, 93.892, 93.893, National Agenda: To review and evaluate grant Institutes of Health, HHS) toll-free number. Copies of the proposed applications. forms and other available documents Dated: March 10, 2004. Place: National Institutes of Health, 6701 submitted to OMB may be obtained Rockledge Drive, Bethesda, MD 20892, LaVerne Y. Stringfield, from Mr. Eddins. (Telephone Conference Call). Director, Office of Federal Advisory Contact Person: Stephen M. Nigida, PhD, Committee Policy. SUPPLEMENTARY INFORMATION: The Scientific Review Administrator, Center for [FR Doc. 04–5958 Filed 3–16–04; 8:45 am] Department has submitted the proposal Scientific Review, National Institutes of BILLING CODE 4140–01–M for the collection of information, as Health, 6701 Rockledge Drive, Room 4212, described below, to OMB for review, as MSC 7812, Bethesda, MD 20892, (301) 435– required by the Paperwork Reduction 1222, [email protected]. Act (44 U.S.C. chapter 35). The notice Name of Committee: Center for Scientific DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT lists the following information: (1) The Review Special Emphasis Panel title of the information collection Improvements in Wheelchair Function and [Docket No.FR–4903–N–12] Design. proposal; (2) the office of the agency to collect the information; (3) the OMB Date: April 9, 2004. Notice of Submission of Proposed Time: 8 a.m. to 6 p.m. approval number, if applicable; (4) the Agenda: To review and evaluate grant Information Collection to OMB: description of the need for the applications. Doctoral Dissertation Research Grant information and its proposed use; (5) Place: Hyatt Regency Bethesda, One Program Application and Monitoring the agency form number, if applicable; Bethesda Metro Center, 7400 Wisconsin Reports (6) what members of the public will be Avenue, Bethesda, MD 20814. AGENCY: Office of the Chief Information affected by the proposal; (7) how Contact Person: Jeffrey E. DeClue, PhD, frequently information submissions will Scientific Review Administrator, Center for Officer, HUD. be required; (8) an estimate of the total Scientific Review, National Institutes of ACTION: Notice. Health, 6701 Rockledge Drive, Room 4114, number of hours needed to prepare the MSC 7814, Bethesda, MD 20892, (301) 594– SUMMARY: The proposed information information submission including 6376. collection requirement described below number of respondents, frequency of Name of Committee: Center for Scientific has been submitted to the Office of response, and hours of response; (9) Review Special Emphasis Panel AIDS Management and Budget (OMB) for whether the proposal is new, an Clinical and Epidemiology. review, as required by the Paperwork extension, reinstatement, or revision of Date: April 9, 2004. Reduction Act. The Department is an information collection requirement; Time: 9 a.m. to 10 a.m. and (10) the contact information of an Agenda: To review and evaluate grant soliciting public comments on the subject proposal. agency official familiar with the applications. proposal and the OMB Desk Officer for Place: National Institutes of Health, 6701 This is a request for an extension of Rockledge Drive, Bethesda, MD 20892, the approval to collect information the Department. (Telephone Conference Call). necessary to select doctoral student This notice also lists the following Contact Person: Abraham P. Bautista, MS, grantees and monitor performance to information: PhD, Scientific Review Administrator, Center complete their dissertation on related Title of Proposal: Doctoral for Scientific Review, National Institutes of HUD subjects. Dissertation Research Grant Program Health, 6701 Rockledge Drive, Room 5102, DATES: Comments Due Date: April 16, Application and Monitoring Reports. MSC 7852, Bethesda, MD 20892, (301) 435– OMB Approval Number: 2528–0213. 1506, [email protected]. 2004. Form Numbers: SF–24, HUD–424–B, Name of Committee: Center for Scientific ADDRESSES: Interested persons are HUD–424–CB,SFLLL, HUD–2993, Review Special Emphasis Panel Myocardial invited to submit comments regarding Ischemic Preconditioning. HUD–2994, and HUD–96010–1. this proposal. Comments should refer to Description of the Need for the Date: April 9, 2004. the proposal by name and/or OMB Time: 2:30 p.m. to 3:30 p.m. Information and its Proposed Use: This Agenda: To review and evaluate grant approval number (2528–0213) should be is a request for an extension of the applications. sent to: HUD Desk Officer, Office of approval to collect information Place: National Institutes of Health, 6701 Management and Budget, Room 10235, necessary to select doctoral student Rockledge Drive, Bethesda, MD 20892, New Executive Office Building, grantees and monitor performance to (Telephone Conference Call). Washington, DC 20503; fax number complete their dissertation on related Contact Person: Ai-Ping Zou, PhD, (202) 395–6974; e-mail HUD subjects. Scientific Review Administrator, Center for [email protected]. Scientific Review, National Institutes of Respondents: Individuals or Health, 6701 Rockledge Drive, Room 4118, FOR FURTHER INFORMATION CONTACT: households, not-for-profit institutions. MSC 7814, Bethesda, MD 20892, (301) 435– Wayne Eddins, Reports Management Frequency of Submission: On 1777. Officer, AYO, Department of Housing occasion, semi-annually.

Number of Re- Annual Re- × Hours per Re- spondents sponses sponse = Burden Hours

Reporting Burden ...... 80 1.56 21.68 2,710

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Total Estimated Burden Hours: 2,710. opportunity to comment on information information necessary to make sound Status: Extension of a currently collection and recordkeeping activities decisions on allowing importation of approve collection. (see CFR 1320.8(d)). The U.S. Fish and live salmonids and their reproductive Authority: Section 3507 of the Paperwork Wildlife Service (we, or the Service) products into the United States. Reduction Act of 1995, 44 U.S.C. 35, as plans to submit a request to OMB for The information collection was amended. approval of a collection of information approved in February 1992. We related to importation certification for Dated: March 12, 2004. inadvertently allowed the approval to injurious species of live fish and their expire in February 1995 even though we Wayne Eddins, reproductive products. We are were still collecting the information. At Departmental Reports Management Officer, requesting a 3-year term of approval for that time, we used a form to collect the Office of the Chief Information Officer. these collection activities. qualification information from persons [FR Doc. 04–6021 Filed 3–16–04; 8:45 am] Federal agencies may not conduct or wishing to be designated certified Title BILLING CODE 4210–72–P sponsor, and a person is not required to 50 inspectors, while health respond to, a collection of information certifications and import requests were unless it displays a currently valid OMB generally submitted in the form of DEPARTMENT OF THE INTERIOR control number. letters that varied in content and The Lacey Act (18 U.S.C. 42) (‘‘Act’’) completeness. The regulations at 50 CFR Fish and Wildlife Service prohibits the possession or importation 16.13 provide guidance for what must of any animal or plant deemed to be and Information Collection To Be be included in the health certificate, yet prescribed by regulation to be injurious, these submissions were often Submitted to the Office of Management to human beings, to the interests of and Budget (OMB) for Approval Under incomplete or incorrect. In the interest agriculture, horticulture, forestry, or to of increasing efficiency and the Paperwork Reduction Act; wildlife or the wildlife resources of the Injurious Wildlife; Importation standardization, we are requesting to United States. The Department of the use three new forms to collect this Certification for Live Fish and Fish Interior is charged with enforcement of Eggs (50 CFR 16.13) information. We have submitted an this Act. emergency request to OMB to approve The Act and our regulations at 50 CFR AGENCY: this information collection, including Fish and Wildlife Service, 16 allow for the importation of animals the three new forms, for six months. In Interior. classified as injurious if specific criteria addition, we are initiating the process to ACTION: Notice; request for comments. are met. Specifically, this information request regular (3-year) OMB approval collection allows the Service to approve SUMMARY: The U.S. Fish and Wildlife of this information collection, including the importation of live salmonids and Service will submit the collection of the three forms, through this publication their reproductive products into the information listed below to OMB for United States. and to request public comment on this approval under the provisions of the The importation of salmonids requires information collection. The forms are Paperwork Reduction Act. A description that we collect information from those described below. of the information collection individuals wishing to import Form Title: Title 50 Certifying Official requirement is included in this notice. salmonids or their reproductive Form. If you wish to obtain copies of the products with regard to the numbers, OMB Control Number: 1018–0078. proposed information collection life stages, and species to be imported, Form Number: FW 3–2273. requirement, related forms, or as well as their source and destination. Frequency of Collection: Every 5 years explanatory material, contact the In addition, we require a health as needed. Service Information Collection Officer at certificate submitted by a certified Title Description of Respondents: Aquatic the address listed below. 50 inspector to ensure the animals being animal health professionals seeking to DATES: Submit comments on or before imported do not pose a health risk to the be certified Title 50 inspectors. May 17, 2004. nation’s commercial and natural aquatic Total Annual Responses: 16 (estimate ADDRESSES: Send your comments on the resources. Regarding the qualifications based on previous collection activities). requirement to Anissa Craghead, of the Title 50 inspectors, we collect There are currently approximately 80 Information Collection Clearance information that verifies the applicants’ inspectors. Officer, U.S. Fish and Wildlife Service, professional qualifications and the Total Annual Burden Hours: 16 MS 222–ARLSQ, 4401 N. Fairfax Drive, adequacy of facilities available to those hours. We estimate the reporting burden Arlington, VA 22203; (703) 358–2269 individuals to complete the inspections at 1 hour for each of the total 16 (fax); or [email protected] (e- according to methods provided in 50 responses, or approximately 16 hours mail). CFR 16. total. We have regulated the importation of Form Title: U.S. Title 50 Certification FOR FURTHER INFORMATION CONTACT: To live salmonids and their reproductive Form. request a copy of the information products for over 25 years. In order to OMB Control Number: 1018–0078. collection request, explanatory effectively carry out these Form Number: FW 3–2274. information, or related forms, contact responsibilities and protect the aquatic Frequency of Collection: On occasion, Anissa Craghead by phone at (703) 358– resources of the United States, it is as needed by the submitting individual 2445 or by e-mail at _ essential that we gather information on or entity. Anissa [email protected]. the animals being imported with regard Description of Respondents: Certified SUPPLEMENTARY INFORMATION: The Office to their source, destination, and health Title 50 inspectors that have performed of Management and Budget (OMB) status. It is also imperative that we health certifications on live salmonids regulations at 5 CFR 1320, which ensure the qualifications of those or their reproductive products for implement provisions of the Paperwork individuals providing the relevant fish importation into the United States. Reduction Act of 1995 (44 U.S.C. 3501 health data upon which we base our Total Annual Responses: et seq.), require that interested parties decision to allow importation. This Approximately 50 (estimate based on and affected agencies have an collection allows us to gather the previous collection activities).

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Total Annual Burden Hours: 25 The Subsistence Resource Dated: March 3, 2004. hours. We estimate the reporting burden Commissions are authorized under Title Marcia Blaszak, at thirty minutes for each of the total 50 VIII, section 808, of the Alaska National Acting Regional Director, Alaska. responses, or approximately 25 hours Interest Lands Conservation Act, Public [FR Doc. 04–5933 Filed 3–16–04; 8:45 am] total. Law 96–487, and operates in accordance BILLING CODE 4310–HK–P Form Title: Title 50 Importation with the provisions of the Federal Request Form. Advisory Committee Act. OMB Control Number: 1018–0078. DATES: The meeting will be held from DEPARTMENT OF THE INTERIOR Form Number: FW 3–2275. Frequency of Collection: On occasion, 8:30 a.m. to 5 p.m. on Thursday April National Park Service as needed by the submitting individual 1, 2004, at the U.S. Fish and Wildlife or entity. Service conference room in Kotzebue, Chesapeake and Ohio Canal National Description of Respondents: Any Alaska. Historical Park Advisory Commission; entity wishing to import live salmonids GSA regulations (41 CFR 102–3.150) Notice of Public Meeting or their reproductive products into the governing advisory committee meetings United States. allow us, in exceptional circumstances, Notice is hereby given in accordance Total Annual Responses: 50 (estimate to give less than 15 days advance notice with the Federal Advisory Committee based on previous collection activities) prior to an advisory committee meeting. Act that a meeting of the Chesapeake Total Annual Burden Hours: 12.5 It is necessary for us to publish this and Ohio Canal National Historical Park hours. We estimate the reporting burden notice less than 15 days prior to the Federal Advisory Commission is at 0.25 hours for each of the total 50 meeting so that the work of the scheduled for Friday, April 16, 2004, at responses, or approximately 13 hours committee can be made available for the Foundry Office Building, 1055 total. consideration at subsequent meetings of Thomas Jefferson Street, NW., We invite comments on this proposed the regional subsistence advisory Washington, DC. The meeting will begin information collection on the following: council and the Federal Subsistence at 10 a.m. (1) Whether the collection of Board. We were not aware sufficiently The Commission was established by information is necessary for the proper in advance of the need to more closely Public Law 91–664 to meet and consult performance of the function of the coordinate the scheduling of the with the Secretary of the Interior on agency, including whether the meetings. general policies and specific matters information will have practical utility; related to the administration and (2) the accuracy of our estimate of the FOR FURTHER INFORMATION CONTACT: development of the Chesapeake and burden of the collection of information; Superintendent, Julie Hopkins and Ohio Canal National Historical Park. (3) ways to enhance the quality, utility, Willie Goodwin at (907) 442–3890, Ken The members of the Commission are and clarity of the information to be Adkisson at (800) 471–2352, or (907) as follows: collected; and (4) ways to minimize the 443–2522. Mrs. Sheila Rabb Weidenfeld, burden of the collection on respondents. SUPPLEMENTARY INFORMATION: Notice of Chairman; Dated: March 1, 2004. this meeting will be published in local Mr. Charles J. Weir; Anissa Craghead, newspapers and announced on local Mr. Barry A. Passett; Information Collection Officer, Fish and radio stations prior to the meeting dates. Mr. Terry W. Hepburn; Wildlife Service. Locations and dates may need to be Ms. Elise B. Heinz; [FR Doc. 04–5450 Filed 3–16–04; 8:45 am] changed based on weather or local Ms. JoAnn M. Spevacek; BILLING CODE 4310–55–P circumstances. Mrs. Mary E. Woodward; The following agenda items will be Mrs. Donna Printz; discussed: Mrs. Ferial S. Bishop; DEPARTMENT OF THE INTERIOR Ms. Nancy C. Long; Welcome—Introduction of commission Mrs. Jo Reynolds; National Park Service members and guests. 1. Review and approve agenda. Dr. James H. Gilford; and Brother James Kirkpatrick. Announcement of Subsistence 2. Review and approve minutes from last meeting. Resource Commission Meeting Topics that will be presented during 3. Review Commission purpose and status the meeting include: AGENCY: National Park Service, Interior. of membership. 1. Major planning initiatives, 4. Superintendent’s Report—Status of SUMMARY: Notice is here by given in Hunting Plan Recommendations. construction and development projects. accordance with the Federal Advisory 5. Update—Review Federal Subsistence 2. Park operational issues. Committee Act that a meeting of the Board—Wildlife Issues. The meeting will be open to the Subsistence Resource Commission for 6. Update—Review Federal Subsistence public. Any member of the public may Cape Krusenstern National Monument Board—Fisheries Issues. file with the Commission a written will be held at Kotzebue, Alaska. The 7 .Public and agency comments. statement concerning the matters to be purpose of the meeting will be to review 8. SRC work session develop discussed. Persons wishing further Federal Subsistence Board wildlife recommendations on issues. information concerning this meeting, or proposals and continue work on 9. Identify agenda topics, set time and who wish to submit written statements, place of next SRC meeting. National Park Service subsistence 10. Adjournment. may contact Kevin D. Brandt, hunting program recommendations Superintendent, C&O Canal National including other related subsistence Draft minutes will be available for Historical Park, 1850 Dual Highway, management issues. The meeting will be public inspection approximately six Suite 100, Hagerstown, Maryland 21740. open to the public. Any person may file weeks after the meeting from: Minutes of the meeting will be with the Commission a written Superintendent Western Arctic National available for public inspection six (6) statement concerning the matters to be Parklands, Alaska Region, P.O. Box weeks after the meeting at park discussed. 1029, Kotzebue, AK 99752. headquarters, Hagerstown, Maryland.

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Dated: March 3, 2004. DEPARTMENT OF THE INTERIOR 18. Federal Subsistence Board Wildlife Tina R. Orcutt, Proposals. Superintendent, Chesapeake and Ohio Canal National Park Service 19. Set time and place of next SRC National Historical Park. meeting. Announcement of Gates of the Arctic [FR Doc. 04–5937 Filed 3–16–04; 8:45 am] 20. Adjournment. National Park Subsistence Resource BILLING CODE 4310–6V–P Commission (SRC) Meeting Draft minutes of the meeting will be available for public inspection AGENCY: National Park Service, Interior. DEPARTMENT OF THE INTERIOR approximately six weeks after the SUMMARY: Notice is hereby given in meeting from the Superintendent, Gates National Park Service accordance with the Federal Advisory of the Arctic National Park and Committee Act that a meeting of the Preserve, 201 First Ave., Fairbanks, Delaware Water Gap National Gates of the Arctic National Park Alaska, 99701. Recreation Area Citizen Advisory Subsistence Resource Commissions will Commission Meeting be held at Fairbanks, Alaska. The FOR FURTHER INFORMATION CONTACT: purpose of the meeting will be to Dave Mills, Superintendent, at (907) AGENCY: National Park Service; Interior. continue work on currently authorized 457–5752 or Fred Andersen, and proposed National Park Service Subsistence Manager, at (907) 455–0621. ACTION: Notice of meeting. subsistence hunting program Dated: February 19, 2004. recommendations including other SUMMARY: This notice announces one related subsistence management issues. Marcia Blaszak, public meeting of the Delaware Water The meeting will be open to the public. Acting Regional Director, Alaska. Gap National Recreation Area Citizen Any person may file with the [FR Doc. 04–5934 Filed 3–16–04; 8:45 am] Advisory Commission. Notice of this Commission a written statement BILLING CODE 4310–HK–P meeting is required under the Federal concerning the matters to be discussed. Advisory Committee Act (Pub. L. 92– The Subsistence Resource 463). Commission is authorized under Title DEPARTMENT OF THE INTERIOR Meeting Date and Time: Thursday, May VIII, Section 808, of the Alaska National National Park Service 1, 2004, at 7 p.m. Interest Lands Conservation Act, Pub. L. 96–487, and operates in accordance ADDRESSES: Bushkill Visitor Center, U.S. with the provisions of the Federal Great Sand Dunes National Park Route 209, Bushkill, PA 18324. Advisory Committee Act. Advisory Council Meeting The agenda will include reports from DATES: The meeting times are, AGENCY: National Park Service, DOI. Citizen Advisory Commission members 1. Tuesday, April 20, 2004, 9 a.m. to including Commission committees such approximately 5 p.m. ACTION: Announcement of meeting. as Recruitment, Natural Resources, 2. Wednesday, April 21, 2004, 9 a.m. to Inter-Governmental Cultural Resources, approximately 5 p.m. SUMMARY: Great Sand Dunes National Special Projects, and Public Visitation Location: The Commission plans to Monument and Preserve announces a and Tourism. Superintendent John J. conduct the public meeting at Sophie’s meeting of the Great Sand Dunes Donahue will give a report on various Station Hotel, telephone (907) 479– National Park Advisory Council, which park issues, including cultural 3650, in Fairbanks, Alaska. was established to provide guidance to resources, natural resources, the Secretary on long-term planning for construction projects, and partnership SUPPLEMENTARY INFORMATION: Notice of Great Sand Dunes National Park and ventures. The agenda is set up to invite this meeting will be published in local Preserve. the public to bring issues of interest newspapers and announced on local before the Commission. radio stations prior to the meeting dates. The agenda for the meeting is as DATES: The meeting date is: 1. April 5– SUPPLEMENTARY INFORMATION: The follows: 7, 2004, 9 a.m.–4:30 p.m., Alamosa, Colorado. Delaware Water Gap National 1. Call to order (SRC Chair). Recreation Area Citizen Advisory 2. SRC Roll Call and Confirmation of ADDRESSES: The meeting location is: 1. Commission was established by Public Quorum. Alamosa, Colorado—Alamosa County Law 100–573 to advise the Secretary of 3. SRC Chair and Superintendent’s the Interior and the United States Welcome and Introductions. Courthouse, 702 4th St., Alamosa, CO Congress on matters pertaining to the 4. Review and Approve Agenda. 81101. management and operation of the 5. Review and adopt minutes from May 22–23, 2003, meeting. FOR FURTHER INFORMATION CONTACT: Delaware Water Gap National Steve Chaney, 719–378–6300. Recreation Area, as well as on other 6. Review Commission Purpose and Status of Membership. SUPPLEMENTARY INFORMATION: At this matters affecting the recreation area and 7. Superintendent’s Report. its surrounding communities. 8. SRC, Public and Agency Comments. meeting, the Advisory Council will develop goals for the General FOR FURTHER INFORMATION CONTACT: 9. Durational Residency. Management Plan and draft alternative Superintendent, Delaware Water Gap 10. John River Water Quality Study. 11. Alatna River Archeological Study. concepts to accomplish these goals. National Recreation Area, Bushkill, PA 12. North Slope/Anaktuvuk Pass Fishery 18324, 570–588–2418. Public comment will be solicited on Study. April 5 from 4:30–5:30 p.m. Dated: February 5, 2004. 13. Cultural Resources Update. John J. Donahue, 14. Backcountry Planning Update. Hal Grovert, 15. Kobuk River Management Issues. Acting Regional Director. Superintendent. 16. 2003 SRC Chairs Workshop Update. [FR Doc. 04–5939 Filed 3–16–04; 8:45 am] 17. Western Arctic Caribou Herd Working [FR Doc. 04–5936 Filed 3–16–04; 8:45 am] BILLING CODE 4310–MY–P Group Update. BILLING CODE 4312–CL–P

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DEPARTMENT OF THE INTERIOR 1. Review and approve agenda. be accommodated on a first-come, first- 2. Review and approve minutes from last served basis. Any member of the public National Park Service meeting. may file a written statement concerning 3. Review Commission purpose and status the matters to be discussed. Announcement of Subsistence of membership. Persons wishing more information Resource Commission Meeting 4. Superintendent’s Report—Status of Hunting Plan Recommendations. concerning this meeting, or who wish to AGENCY: National Park Service, Interior. 5. Update—Review Federal Subsistence submit written statements, may contact SUMMARY: Notice is hereby given in Board—Wildlife Issues. Mr. de Teel Patterson Tiller, Deputy accordance with the Federal Advisory 6. Update—Review Federal Subsistence Associate Director, Cultural Resources, Committee Act that a meeting of the Board—Fisheries Issues. 1849 C Street NW–3128 MIB, Subsistence Resource Commission for 7. Public and agency comments. Washington, DC 20240, telephone (202) 8. SRC work session develop 208–7625. Increased security in the Kobuk Valley National Park will be held recommendations on issues. at Kotzebue, Alaska. The purpose of the Washington, DC, area may cause delays 9. Identify agenda topics, set time and in the delivery of U.S. Mail to meeting will be to review Federal place of next SRC meeting. Subsistence Board wildlife proposals 10. Adjournment. government offices. In addition to mail and continue work on National Park or commercial delivery, please fax a Draft minutes of the meeting will be copy of the written submission to Mr. Service subsistence hunting program available for public inspection recommendations including other Tiller at (202) 273–3237. approximately six weeks after the Minutes of the meeting will be related subsistence management issues. meeting from: Superintendent Western available for public inspection no later The meeting will be open to the public. Arctic National Parklands, Alaska than 90 days after the meeting at the Any person may file with the Region, P.O. Box 1029, Kotzebue, AK office of the Deputy Associate Director, Commission a written statement 99752. Cultural Resources, 1849 C Street NW, concerning the matters to be discussed. Room 3128, Washington, DC. The Subsistence Resource Kathryn Cook Collins, Commissions are authorized under Title Alaska Desk Officer. Dated: February 6, 2004. VIII, section 808, of the Alaska National [FR Doc. 04–5932 Filed 3–16–04; 8:45 am] de Teel Patterson Tiller, Interest Lands Conservation Act, Public BILLING CODE 4312–HP–P Deputy Associate Director, Cultural Law 96–487, and operates in accordance Resources. with the provisions of the Federal [FR Doc. 04–5935 Filed 3–16–04; 8:45 am] Advisory Committee Act. DEPARTMENT OF THE INTERIOR BILLING CODE 4310–50–S DATE: The meeting will be held from 8:30 a.m. to 5 p.m. on Friday April 2, National Park Service INTERNATIONAL TRADE 2004, at the U.S. Fish and Wildlife National Preservation Technology and COMMISSION Service conference room in Kotzebue, Training Board: Meeting Alaska. [Inv. No. 337–TA–474] GSA regulations (41 CFR 102–3.150) AGENCY: National Park Service, Interior. governing advisory committee meetings ACTION: Notice. In the Matter of Certain Recordable allow us, in exceptional circumstances, Compact Discs and Rewritable to give less than 15 days advance notice Notice is here given in accordance Compact Discs; Notice of Commission prior to an advisory committee meeting. with the Federal Advisory Committee Determination of No Violation of It is necessary for us to publish this Act, 5 U.S.C. Appendix (1988), that the Section 337 notice less than 15 days prior to the National Preservation Technology and meeting so that the work of the Training Board (the Board) will meet AGENCY: International Trade committee can be made available for March 29, 2004, in Natchitoches, LA. Commission. consideration at subsequent meetings of The Board was established by ACTION: Notice. the regional subsistence advisory Congress to provide leadership, policy SUMMARY: Notice is hereby given that council and the Federal Subsistence advice, and professional oversight to the the U.S. International Trade Board. We were not aware sufficiently National Center for Preservation Commission has determined that the in advance of the need to more closely Technology and Training (NCPTT), as U.S. patents asserted by complainant coordinate the scheduling of the required under the National Historic U.S. Philips Corporation are meetings. Preservation Act of 1966, as amended (16 U.S.C. 470). unenforceable for patent misuse, and FOR FURTHER INFORMATION CONTACT: The Board will meet at the has therefore found that there is no Superintendent, Julie Hopkins and Headquarters of NCPTT in Lee H. violation of section 337 of the Tariff Act Willie Goodwin at (907) 442–3890, Ken Nelson Hall, 645 College Avenue, of 1930 in the above-captioned Adkisson at (800) 471–2352, or (907) Natchitoches, LA 71457. The meeting investigation. 443–2522. will start at 9:00 a.m. and end no later FOR FURTHER INFORMATION CONTACT: SUPPLEMENTARY INFORMATION: Notice of than 5:00 p.m. The Board meeting’s Clara Kuehn, Esq., Office of the General this meeting will be published in local agenda will include NCPTT operations, Counsel, U.S. International Trade newspapers and announced on local budget, and program development; Commission, 500 E Street, SW., radio stations prior to the meeting dates. NCPTT business and strategic plans; Washington, DC 20436, telephone (202) Locations and dates may need to be Preservation Technology and Training 205–3012. Copies of the Commission’s changed based on weather or local grants; the Heritage Education program; order, the public version of its opinion, circumstances. and PTT Board workgroup reports. the public version of the presiding The following agenda items will be The Board meeting is open to the administrative law judge’s (‘‘ALJ’s’’) discussed: public. Facilities and space for final initial determination (‘‘ID’’), and Welcome—Introduction of commission accommodating members of the public all other nonconfidential documents members and guests. are limited, however, and persons will filed in connection with this

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investigation are or will be available for respondent on the basis of a consent bonding. The Commission also inspection during official business order and settlement agreement); and requested briefing from the parties on hours (8:45 a.m. to 5:15 p.m.) in the ALJ Order No. 21 (an unreviewed ID four questions. Initial submissions were Office of the Secretary, U.S. finding four respondents in default). filed on January 9, 2004, and replies International Trade Commission, 500 E On April 7, 2003, the ALJ issued an were filed on January 16, 2004, and on Street, SW., Washington, DC 20436, ID (ALJ Order No. 20) granting January 20, 2004. telephone 202–205–2000. General complainant’s unopposed motion for Having reviewed the record in this information concerning the Commission summary determination that Linberg, investigation, including the parties’ may also be obtained by accessing its GigaStorage, and Princo have each sold written submissions, the Commission Internet server (http://www.usitc.gov). for importation, imported, and/or sold determined to affirm the ALJ’s The public record for this investigation after importation products accused of conclusion that the asserted patents are may be viewed on the Commission’s infringing one or more of the asserted unenforceable for patent misuse per se, electronic docket (EDIS) at http:// patent claims. That ID was not reviewed but on the ground that complainant’s edis.usitc.gov. Hearing-impaired by the Commission. practice of mandatory package licensing persons are advised that information on A tutorial session was held on June 3, constitutes a tying arrangement between this matter can be obtained by 2003, and an evidentiary hearing was licenses to patents that are essential to contacting the Commission’s TDD held from June 10, 2003, through June manufacture CD–Rs or CD–RWs terminal on 202–205–1810. 20, 2003. according to Orange Book standards and On June 30, 2003, the ALJ issued an licenses to other patents that are not SUPPLEMENTARY INFORMATION: The order (ALJ Order No. 32) granting a Commission instituted this investigation essential to that activity.1 The motion in limine filed by respondents to Commission determined to adopt the on July 26, 2002, based on a complaint preclude complainant from asserting the filed by U.S. Philips Corporation of ALJ’s conclusion that the asserted doctrine of unclean hands with respect patents are unenforceable for patent Tarrytown, NY (‘‘Philips’’ or to respondents’ affirmative defense of ‘‘complainant’’). 67 FR 48948 (2002). misuse under a rule of reason standard patent misuse. based on the ALJ’s analysis of and The complaint, as supplemented, The ALJ issued his final ID on alleged violations of section 337 of the findings as to the tying arrangement.2 October 24, 2003. Although he found We affirm the ALJ’s conclusion that the Tariff Act of 1930 in the importation that none of the asserted claims are into the United States, the sale for patent misuse has not been shown to invalid, that the accused products have been purged. importation, and the sale within the infringe the asserted claims, and that the United States after importation of This action is taken under the domestic industry requirement of authority of section 337 of the Tariff Act certain recordable compact discs and section 337 has been satisfied, he found rewritable compact discs by reason of of 1930, as amended (19 U.S.C. 1337), no violation of section 337 because he and in section 210.45 of the infringement of certain claims of six concluded that all of the asserted U.S. patents: claims 1, 5, and 6 of U.S. Commission’s rules of practice and patents are unenforceable by reason of procedure (19 CFR 210.45). Patent No. 4,807,209; claim 11 of U.S. patent misuse. Patent No. 4,962,493; claims 1, 2, and 3 On November 5, 2003, complainant By order of the Commission. of U.S. Patent No. 4,972,401; claims 1, Philips petitioned for review of the Issued: March 11, 2004. 3, and 4 of U.S. Patent No. 5,023,856; portion of the final ID that found the Marilyn R. Abbott, claims 1–5, and 6 of U.S. Patent No. asserted patents unenforceable due to Secretary to the Commission. 4,999,825; and claims 20, 23–33, and 34 patent misuse, and also appealed ALJ [FR Doc. E4–610 Filed 3–16–04; 8:45 am] of U.S. Patent No. 5,418,764. 67 FR Order No. 32. On the same day, BILLING CODE 7020–02–P 48948 (2002). respondents filed a paper entitled The notice of investigation named 19 ‘‘Statement of Respondents Princo respondents, including GigaStorage Corp., Princo America Corp., DEPARTMENT OF JUSTICE Corporation Taiwan of Hsinchu, Gigastorage Corp. Taiwan, Gigastorage Taiwan; GigaStorage Corporation USA Corp. USA, and Linberg Enterprises, Office of Justice Programs of Livermore, California (collectively, Inc. Regarding the Initial Agency Information Collection ‘‘GigaStorage’’); and Linberg Enterprise Determination,’’ in which respondents Activities: Proposed Collection; Inc. (‘‘Linberg’’) of West Orange, New urged the Commission to adopt the ID Comments Requested Jersey. 67 FR 48,948 (2002). On August in its entirety. Respondents and the IA 14, 2002, the ALJ issued an ID (Order filed responses to complainant’s ACTION: 60-Day Notice of Information No. 2) granting a motion to intervene as petition for review. Collection Under Review: Capital respondents by Princo Corporation of On December 8, 2003, the ALJ issued Punishment Report of Inmates Under Hsinchu, Taiwan, and Princo America his recommended determination on Sentence of Death. Corporation of Fremont, California remedy and bonding. (collectively, ‘‘Princo’’). That ID was not On December 10, 2003, the The Department of Justice (DOJ), reviewed by the Commission. Commission determined to affirm ALJ Office of Justice Programs (OJP), has GigaStorage, Linberg, and Princo Order No. 32, and to review all of the submitted the following information (‘‘respondents’’) are the only remaining ID’s findings of fact and conclusions of collection request to the Office of active respondents in this investigation. law concerning patent misuse. The Management and Budget (OMB) for See ALJ Order No. 6 (an unreviewed ID Commission determined not to review review and approval in accordance with terminating eight respondents on the the remainder of the ID. basis of a consent order); ALJ Order No. In its review notice, the Commission 1 We take no position on the ALJ’s conclusion 17 (an unreviewed ID terminating each invited the parties to file written that the asserted patents are unenforceable for of three respondents on the basis of a submissions on the issues under review, patent misuse per se based on theories of price fixing and price discrimination. consent order and settlement and invited interested persons to file 2 We take no position on the ALJ’s conclusion agreement); ALJ Order No. 18 (an written submissions on the issues of that the royalty rate structure of the CD–R/RW unreviewed ID terminating one remedy, the public interest, and patent pools is an unreasonable restraint of trade.

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the Paperwork Reduction Act of 1995. Justice Statistics, Office of Justice DEPARTMENT OF LABOR The proposed information collection is Programs, United States Department of published to obtain comments from the Justice. Employment and Training Administration public and affected agencies. Comments (4) Affected public who will be asked are encouraged and will be accepted for or required to respond, as well as a brief [TA–W–54,317] ‘‘sixty days’’ until May 17, 2004. This abstract: Primary: State Departments of process is conducted in accordance with Corrections and Attorneys General. Anacom Medtek, Anaheim, California; 5 CFR 1320.10. Notice of Termination of Investigation If you have comments especially on Others: the Federal Bureau of Prisons. the estimated public burden or Approximately 95 respondents Pursuant to section 221 of the Trade associated response time, suggestions, responsible for keeping records on Act of 1974, as amended, an or need a copy of the proposed inmates under sentence of death in their investigation was initiated on February information collection instrument with jurisdiction and in their custody will be 20, 2004 in response to a petition filed instructions or additional information, asked to provide information for the on behalf of workers at Anacom Medtek, please contact Thomas Bonczar, following categories: condemned Anaheim, California. Statistician, at (202) 616–3615 or via inmates’ demographic characteristic, The petition regarding the facsimile at (202) 514–1757, Bureau of legal status at the time of capital offense, investigation has been deemed invalid. Justice Statistics, Office of Justice capital offense for which imprisoned, Consequently, the investigation has Programs, U.S. Department of Justice number of death sentences imposed, been terminated. 810 Seventh Street NW., Washington, criminal history information, reason for Signed at Washington, DC this 24th day of DC 20531. removal and current status if no longer February 2004. Written comments and suggestions under sentence of death, method of Elliott S. Kushner, from the public and affected agencies execution, and cause of death by other Certifying Officer, Division of Trade concerning the proposed collection of than by execution. The Bureau of Justice Adjustment Assistance. information are encouraged. Your Statistics uses this information in [FR Doc. 04–6024 Filed 3–16–04; 8:45 am] comments should address one or more published reports; and for the U.S. BILLING CODE 4510–30–M of the following four points: Congress, Executive Office of the —Evaluate whether the proposed President, State officials, international DEPARTMENT OF LABOR collection of information is necessary organizations, researchers, students, the for the proper performance of the media and others interested in criminal Mine Safety and Health Administration functions of the agency, including justice statistics. whether the information will have (5) An estimate of the total number of Proposed Information Collection practical utility; Request Submitted for Public —Evaluate the accuracy of the agencies respondents and the amount of time estimated for an average respondent to Comment and Recommendations; estimate of the burden of the Operations Under Water proposed collection of information, respond: The estimated amount of time including the validity of the is as follows: 171 responses at 30 ACTION: Notice. methodology and assumptions used; minutes each for the NPS–8; 3,577 —Enhance the quality, utility, and responses at 30 minutes each for the SUMMARY: The Department of Labor, as clarity of the information to be NPS–8A; and 52 responses at 15 part of its continuing effort to reduce collected; and minutes each for the NPS–8B or NPS– paperwork and respondent burden —Minimize the burden of the collection 8C. conducts a preclearance consultation program to provide the general public of information on those who are to (6) An estimate of the total public respond, including through the use of and Federal agencies with an burden (in hours) associated with the opportunity to comment on proposed appropriate automated, electronic, collection: There are an estimated 1,888 mechanical, or other technological and/or continuing collections of total annual burden hours associated collection techniques or other forms information in accordance with the with this collection. of information technology, e.g., Paperwork Reduction Act of 1995 permitting electronic submission of If additional information is required (PRA95) [44 U.S.C. 3506(c)(2)(A)]. This responses. contact: Brenda E. Dyer, Deputy program helps to ensure that requested Overview of this information Clearance Officer, Policy and Planning data can be provided in the desired collection: Staff, Justice Management Division, format, reporting burden (time and (1) Type of Information Collection: Department of Justice, Patrick Henry financial resources) is minimized, Extension of a currently approved Building, Suite 1600, 601 D Street NW., collection instruments are clearly collection. Washington, DC 20530. understood, and the impact of collection requirements on respondents can be (2) Title of the Form/Collection: Dated: March 11, 2004. Capital Punishment Report of Inmates properly assessed. Brenda E. Dyer, Under Sentence of Death. DATES: Submit comments on or before (3) Agency form number, if any, and Deputy Clearance Officer, Department of May 17, 2004. the applicable component of the Justice. ADDRESSES: Send comments to Darrin Department of Justice sponsoring the [FR Doc. 04–5930 Filed 3–16–04; 8:45 am] King, Chief, Records Management collection: Form Number: NPS–8 Report BILLING CODE 4410–18–P Branch, 1100 Wilson Boulevard, Room of Inmates Under Sentence of Death; 2139, Arlington, VA 22203–1984. NPS–8A Update Report of Inmates Commenters are encouraged to send Under Sentence of Death; NPS–8B their comments on a computer disk, or Status of Death Penalty—No Statute in via Internet E-mail to Force; and NPS–8C Status of Death [email protected], along with an Penalty—State in Force. Bureau of original printed copy. Mr. King can be

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reached at (202) 693–9838 (voice), or including the validity of the E Street, SW., Room 6H45A, (703) 693–9801 (facsimile). methodology and assumptions used; Washington, DC 20546. • Enhance the quality, utility, and FOR FURTHER INFORMATION CONTACT: The FOR FURTHER INFORMATION CONTACT: Mr. proposed information collection request clarity of the information to be collected; and Mark D. Erminger, Aerospace Safety may be viewed on the Internet by • Advisory Panel Executive Director, accessing the MSHA Home Page (http:/ Minimize the burden of the Code Q–1, National Aeronautics and /www.msha.gov) and selecting Statutory collection of information on those who Space Administration, Washington, DC and Regulatory Information then are to respond, including through the Paperwork Reduction Act submission use appropriate automated, electronic, 20546, (202) 358–0914. mechanical, or other technological (http://www.msha.gov/regspwork.htm), SUPPLEMENTARY INFORMATION: The collection techniques or other forms of or by contacting Darrin King, Records Aerospace Safety Advisory Panel will information technology, e.g., permitting Management Branch, U.S. Department hold its Quarterly Meeting. This electronic submissions of responses. of Labor, Mine Safety and Health discussion is pursuant to carrying out Administration, Room 2139, 1100 III. Current Action its statutory duties for which the Panel Wilson Boulevard, Arlington, VA Currently, the Mine Safety and Health reviews, identifies, evaluates, and 22203–1984. Mr. King can be reached at Administration (MSHA) is soliciting advises on those program activities, [email protected] (Internet E-mail, comments concerning the proposed systems, procedures, and management (703) 693–9838(voice), or (703)693– extension of the information collection activities that can contribute to program 9801 (facsimile). related to Operations Under Water. risk. Priority is given to those programs SUPPLEMENTARY INFORMATION: Type of Review: Extension. that involve the safety of human flight. I. Background Agency: Mine Safety and Health The major subjects covered will be: Administration. Space Shuttle Program, International Title 30, CFR 75.1716, 75.1716–1 and Title: Operations Under Water. Space Station Program, and Cross- 75.1716–3 require operators of OMB Number: 1219–0020. Program Areas. The Aerospace Safety underground coal mines to notify Affected Public: Business or other for- MSHA of proposed mining under bodies profit (underground coal mines). Advisory Panel is composed of nine of water and to obtain a permit to mine Number of Respondents: 36. members and one ex-officio member. under a body of water if, in the Annual Reponses: 36. The meeting will be open to the judgment of the Secretary, it is Average Response Time: 5 hours. public up to the seating capacity of the sufficiently large to constitute a hazard Total Annual Burden Hours: 180. room (45). Seating will be on a first- Total Burden Cost (operating/ to miners. This is a statutory provision come basis. Please contact Ms. Susan contained in Section 317(r) of the maintaining): $540. Comments submitted in response to Burch on (202) 358–0914 or via email at Federal Mine Safety and Health Act of this notice will be summarized and/or [email protected] at least 24 hours 1977. The regulation is necessary to included in the request for Office of in advance to reserve a seat. Visitors prevent the inundation of underground Management and Budget approval of the will be requested to sign a visitor’s coal mines with water, which has the information collection request; they will register and asked to comply with potential of drowning miners. The coal also become a matter of public record. NASA security requirements, including mine operator submits an application the presentation of a valid picture ID for the permit to the District Manager in Dated at Arlington, Virginia, this 10th day of March, 2004. before receiving an access badge. whose district the mine is located. Foreign nationals attending this meeting Applications contain the name and David L. Meyer, will also be required to provide advance address of the mine; projected mining Director, Office of Administration and copies of their passports, green cards, or and ground support plans; a mine map Management. visas. Photographs will only be showing the location of the river, [FR Doc. 04–6019 Filed 3–16–04; 8:45 am] permitted during the first 10 minutes of stream, lake or other body of water and BILLING CODE 4510–43–P its relation to the location of all working the meeting. During the first 30 minutes places; a profile map showing the type of the meeting, members of the public of strata and the distance in elevation NATIONAL AERONAUTICS AND may make a 5-minute verbal between the coal bed and the water SPACE ADMINISTRATION presentation to the Panel on the subject involved. of safety in NASA. To do so, please [Notice (04–043)] contact Ms. Susan Burch on (202) 358– II. Desired Focus of Comments Aerospace Safety Advisory Panel 0914 at least 24 hours in advance. Any Currently, the Mine Safety and Health Meeting member of the public is permitted to file Administration (MSHA) is soliciting a written statement with the Panel at the comments concerning the proposed AGENCY: National Aeronautics and time of the meeting. Verbal extension of the information collection Space Administration. presentations and written comments related to Operations Under Water. ACTION: Notice of meeting. should be limited to the subject of safety MSHA is particularly interested in in NASA. comments which: SUMMARY: In accordance with the • evaluate whether the proposed Federal Advisory Committee Act, Public Michael F. O’Brien, collection of information is necessary Law 92–463, as amended, the National Assistant Administrator for External for the proper performance of the Aeronautics and Space Administration Relations, National Aeronautics and Space functions of the agency, including announces a forthcoming meeting of the Administration. whether the information will have Aerospace Safety Advisory Panel. [FR Doc. 04–6004 Filed 3–16–04; 8:45 am] practical utility; DATES: Thursday, April 8, 2004, 1 p.m. BILLING CODE 7510–01–P • evaluate the accuracy of the to 3 p.m. eastern time. agency’s estimate of the burden of the ADDRESSES: National Aeronautics and proposed collection of information, Space Administration Headquarters, 300

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NUCLEAR REGULATORY The raffinate sludge is currently stored which the person seeks to have litigated COMMISSION onsite in three lined ponds, which in the hearing. contain about 1,000,000 cubic feet of [Docket No. 40–8027] In accordance with 10 CFR 2.302(a), sludge containing 15 to 20 percent a request for a hearing must be filed Notice of Receipt of License solids. The sludge must be dewatered with the Commission either by: Amendment Request From Sequoyah before it can be properly disposed of in 1. First class mail addressed to: Office Fuels Corporation, Gore, Oklahoma, the cell. of the Secretary, U.S. Nuclear and Opportunity To Request a Hearing SFC has proposed to dewater the Regulatory Commission, Washington, raffinate sludge using a pressurized DC 20555–0001, Attention: Rulemakings AGENCY: Nuclear Regulatory filter press system, which will increase and Adjudications; Commission. the solids content to approximately 45 2. Courier, express mail, and ACTION: Notice of consideration of to 50 percent and reduce the volume to expedited delivery services: Office of license amendment and opportunity to approximately 485,000 cubic feet. The the Secretary, Sixteenth Floor, One request a hearing. dewatered raffinate sludge will be put White Flint North, 11555 Rockville into polypropylene bags and stored Pike, Rockville, MD 20852, Attention: DATES: A request for a hearing must be onsite prior to disposal in the cell. Each Rulemakings and Adjudications Staff, filed by May 17, 2004. bag will be approximately three feet by between 7:45 a.m. and 4:15 p.m., FOR FURTHER INFORMATION CONTACT: three feet by four feet and hold Federal workdays; Myron Fliegel, Fuel Cycle Facilities approximately 2000 pounds of 3. E-mail addressed to the Office of Branch, Division of Fuel Cycle Safety dewatered sludge. Temporary storage the Secretary, U.S. Nuclear Regulatory and Safeguards, Office of Nuclear cells will be built on an existing Commission, [email protected]; or Material Safety and Safeguards, U.S. concrete pad. Each storage cell will be Nuclear Regulatory Commission, approximately 30 feet wide by 150 long 4. By facsimile transmission Washington, DC 20555–0001. and will hold an estimated 1460 bags of addressed to the Office of the Secretary, Telephone: (301) 415–6629; fax: (301) dewatered sludge. The cells will be U.S. Nuclear Regulatory Commission, 415–5955; and/or by e-mail: lined and covered to prevent dispersal Washington, DC, Attention: [email protected]. of any sludge that leaks from the bags. Rulemakings and Adjudications Staff, at (301) 415–1101; verification number is SUPPLEMENTARY INFORMATION: The NRC staff will review SFC’s request to authorize the raffinate (301) 415–1966. I. Introduction dewatering project using NUREG–1620 In accordance with 10 CFR 2.302(b), all documents offered for filing must be The U.S. Nuclear Regulatory Rev. 1, ‘‘Standard Review Plan for the accompanied by proof of service on all Commission (NRC) has received, by Review of a Reclamation Plan for Mill parties to the proceeding or their letter dated January 7, 2004 Tailings Sites Under Title II of the attorneys of record as required by law or (ML040150463), a request from Uranium Mill Tailings Radiation by rule or order of the Commission, Sequoyah Fuels Corporation (SFC) for Control Act of 1978’’ and other including: approval of a license amendment to applicable agency regulations and Materials License SUB–1010 to guidance. If the NRC approves SFC’s 1. The applicant, Sequoyah Fuels authorize a proposed raffinate request, the approval will be Corporation, P.O. Box 610, Gore, dewatering project. documented in an amendment to SFC’s Oklahoma, Attention: Mr. John Ellis; The SFC facility, located near Gore, license. However, before approving the and Oklahoma, operated from 1970 to 1993, request, NRC will need to make the 2. The NRC staff, by delivery to the converting uranium oxide (yellowcake) findings required by the AEA and NRC Office of the General Counsel, One to uranium hexafluoride, a step in the regulations. These findings will be White Flint North, 11555 Rockville production of nuclear reactor fuel. From documented in a Technical Evaluation Pike, Rockville, MD 20852, or by mail 1987 to 1993, the facility was also used Report and an Environmental addressed to the Office of the General to convert depleted uranium Assessment. Counsel, U.S. Nuclear Regulatory hexafluoride to uranium tetrafluoride. II. Opportunity To Request a Hearing Commission, Washington, DC 20555– The facility is currently licensed only to 0001. Hearing requests should also be possess radioactive material. Originally, The NRC hereby provides notice that transmitted to the Office of the General the license only permitted possession of this is a proceeding on an application Counsel, either by means of facsimile source material. However, in a Staff for a license amendment. In accordance transmission to (301) 415–3725, or by e- Requirements Memorandum to SECY– with the general requirements in mail to [email protected]. 1 02–0095, dated July 25, 2002, the subpart C of 10 CFR part 2, ‘‘Rules of The formal requirements for Commission concluded that some of the General Applicability; Hearing documents contained in 10 CFR 2.304 waste at the SFC site could properly be Requests, Petitions to Intervene, (b), (c), (d), and (e), must be met. In classified as byproduct material as Availability of Documents, Selection of accordance with 10 CFR 2.304(f), a defined in section 11e.(2) of the Atomic Specific Hearing Procedures, Presiding document filed by electronic mail or Energy Act of 1954 as amended (AEA). Officer Powers, and General Hearing facsimile transmission need not comply The SFC facility is an inactive Management for NRC Adjudicatory with the formal requirements of 10 CFR uranium fuel cycle facility. SFC Hearings,’’ any person whose interest 2.304 (b), (c), and (d), as long as an proposed, in a previous request to NRC, may be affected by this proceeding and original and two (2) copies otherwise to clean up the site by constructing a who desires to participate as a party complying with all of the requirements disposal cell on the site and putting all must file a written request for a hearing of 10 CFR 2.304 (b), (c), and (d) are the contaminated site material in the and a specification of the contentions mailed within two (2) days thereafter to cell. Among the material that would be the Secretary, U.S. Nuclear Regulatory 1 The references to 10 CFR part 2 in this notice disposed of in the cell is raffinate refer to the amendments to the NRC rules of Commission, Washington, DC 20555– sludge, which was produced as a waste practice, 69 FR 2182 (January 14, 2004), codified at 0001, Attention: Rulemakings and product during operation of the facility. 10 CFR part 2. Adjudications Staff.

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In accordance with 10 CFR 2.309(b), application, supporting safety analysis authority to act for the requestor/ a request for a hearing must be filed by report, environmental report or other petitioner. May 17, 2004. supporting document filed by an In accordance with 10 CFR 2.309(g), In addition to meeting other applicant or licensee, or otherwise a request for hearing and/or petition for applicable requirements of 10 CFR available to the petitioner. On issues leave to intervene may also address the 2.309, the general requirements arising under the National selection of the hearing procedures, involving a request for a hearing filed by Environmental Policy Act, the taking into account the provisions of 10 a person other than an applicant must requestor/petitioner shall file CFR 2.310. state: contentions based on the applicant’s III. Further Information 1. The name, address, and telephone environmental report. The requestor/ number of the requestor; petitioner may amend those contentions In accordance with 10 CFR 2.390 of 2. The nature of the requestor’s right or file new contentions if there are data the NRC’s ‘‘Rules of Practice,’’ details under the Act to be made a party to the or conclusions in the NRC draft, or final with respect to this action, including the proceeding; environmental impact statement, application for amendment and 3. The nature and extent of the environmental assessment, or any supporting documentation, are available requestor’s property, financial or other supplements relating thereto, that differ electronically for public inspection and interest in the proceeding; significantly from the data or copying from the Publicly Available 4. The possible effect of any decision conclusions in the applicant’s Records (PARS) component of NRC’s or order that may be issued in the documents. Otherwise, contentions may document system (ADAMS). ADAMS is proceeding on the requestor’s interest; be amended or new contentions filed accessible from the NRC Web site at and after the initial filing only with leave of http://www.nrc.gov/reading-rm/ 5. The circumstances establishing that the presiding officer. adams.html. The relevant documents the request for a hearing is timely in Each contention shall be given a can be found in ADAMS at accordance with 10 CFR 2.309(b). separate numeric or alpha designation ML040150463. These documents may In accordance with 10 CFR 2.309 within one of the following groups: also be viewed electronically on the (f)(1), a request for hearing or petitions 1. Technical—primarily concerns public computers located at the NRC’s for leave to intervene must set forth issues relating to matters discussed or Public Document Room (PDR), O 1 F21, with particularity the contentions referenced in the Safety Evaluation One White Flint North, 11555 Rockville sought to be raised. For each contention, Report for the proposed action. Pike, Rockville, MD 20852. The PDR the request or petition must: 2. Environmental—primarily concerns reproduction contractor will copy 1. Provide a specific statement of the issues relating to matters discussed or documents for a fee. Persons who do not issue of law or fact to be raised or referenced in the Environmental Report have access to ADAMS, should contact controverted; for the proposed action. the NRC PDR Reference staff by 2. Provide a brief explanation of the 3. Emergency Planning—primarily telephone at 1–800–397–4209 or (301) basis for the contention; concerns issues relating to matters 415–4737, or by e-mail to [email protected]. 3. Demonstrate that the issue raised in discussed or referenced in the the contention is within the scope of the Dated in Rockville, Maryland, this 10th Emergency Plan as it relates to the day of March, 2004. proceeding; proposed action. 4. Demonstrate that the issue raised in 4. Physical Security—primarily For the Nuclear Regulatory Commission. the contention is material to the concerns issues relating to matters Myron Fliegel, findings that the NRC must make to discussed or referenced in the Physical Project Manager, Fuel Cycle Facilities Branch, support the action that is involved in Security Plan as it relates to the Division of Fuel Cycle Safety and Safeguards, the proceeding; proposed action. Office of Nuclear Material Safety and 5. Provide a concise statement of the 5. Miscellaneous—does not fall into Safeguards. alleged facts or expert opinions which one of the categories outlined above. [FR Doc. E4–608 Filed 3–16–04; 8:45 am] support the requestor’s/petitioner’s If the requestor/petitioner believes a BILLING CODE 7590–01–P position on the issue and on which the contention raises issues that cannot be requestor/petitioner intends to rely to classified as primarily falling into one of support its position on the issue; and these categories, the requestor/petitioner NUCLEAR REGULATORY 6. Provide sufficient information to must set forth the contention and COMMISSION show that a genuine dispute exists with supporting bases, in full, separately for Application for a License To Export a the applicant on a material issue of law each category into which the requestor/ Utilization Facility or fact. This information must include petitioner asserts the contention belongs references to specific portions of the with a separate designation for that Pursuant to 10 CFR 110.70(b)(1) application (including the applicant’s category. ‘‘Public notice of receipt of an environmental report and safety report) Requestors/petitioners should, when application,’’ please take notice that the that the requestor/petitioner disputes possible, consult with each other in Nuclear Regulatory Commission has and the supporting reasons for each preparing contentions and combine received the following request for an dispute, or, if the requestor/petitioner similar subject matter concerns into a export license. Copies of the request are believes the application fails to contain joint contention, for which one of the available electronically through ADAMS information on a relevant matter as co-sponsoring requestors/petitioners is and can be accessed through the Public required by law, the identification of designated the lead representative. Electronic Reading Room (PERR) link each failure and the supporting reasons Further, in accordance with 10 CFR http://www.nrc.gov/NRC/ADAMS/ for the requestor’s/petitioner’s belief. 2.309(f)(3), any requestor/petitioner that index.html at the NRC home page. In addition, in accordance with 10 wishes to adopt a contention proposed A request for a hearing or petition for CFR 2.309(f)(2), contentions must be by another requestor/petitioner must do leave to intervene may be filed within based on documents or other so in writing within ten days of the date 30 days after publication of this notice information available at the time the the contention is filed, and designate a in the Federal Register. Any request for petition is to be filed, such as the representative who shall have the hearing or petition for leave to intervene

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shall be served by the requestor or DC 20555; and the Executive Secretary, herein, the Commission does not petitioner upon the applicant, the Office U.S. Department of State, Washington, evaluate the health, safety or of the General Counsel, U.S. Nuclear DC 20520. environmental effects in the recipient Regulatory Commission, Washington, In its review of the application for a nation of the facility to be exported. The DC 20555; the Secretary, U.S. Nuclear license to export a utilization facility as information concerning the application Regulatory Commission, Washington, defined in 10 CFR part 110 and noticed follows.

NRC EXPORT LICENSE APPLICATION FOR A UTILIZATION FACILITY

Name of Applicant: Westinghouse Electric Com- Description of Facility: Major equipment, replace- End Use: For electricity genera- Country of Des- pany. ment parts and components for construction of tion at the Ling Ao Site and tination: Peo- four (4) utilization facilities (pressurized water re- San Men Site. ple’s Republic actors) of between 900 to 1500 MWe each.. of China Date of Application: February 25, 2004. Date Received: Febuary 26, 2004. Application Number: XR169 ...... Approximate Value: $2.5 Billion. Docket Number: 11005472.

For the Nuclear Regulatory Commission. Administrative Services, Office of OFFICE OF PERSONNEL Dated this 10th day of March 2004 in Administration, U.S. Nuclear Regulatory MANAGEMENT Rockville, Maryland. Commission, Washington, DC 20555. Edward T. Baker, Questions on the content of this guide Federal Prevailing Rate Advisory Deputy Director, Office of International may be directed to Mr. S.K. Aggarwal, Committee; Open Committee Meetings Programs. (301) 415–6005; e-mail ska,nrc.gov. According to the provisions of section [FR Doc. E4–607 Filed 3–16–04; 8:45 am] Regulatory guides are available for 10 of the Federal Advisory Committee BILLING CODE 7590–01–P inspection or downloading at the NRC’s Act (Pub. L. 92–463), notice is hereby Web site at http://www.nrc.gov under given that meetings of the Federal Prevailing Rate Advisory Committee NUCLEAR REGULATORY Regulatory Guides and in NRC’s will be held on— COMMISSION Electronic Reading Room (ADAMS System) at the same site. Single copies Thursday, March 25, 2004; Regulatory Guide; Issuance, of regulatory guides may be obtained Thursday, April 8, 2004; and Availability free of charge by writing the Thursday, April 22, 2004. The meetings will start at 10 a.m. and Reproduction and Distribution Services The Nuclear Regulatory Commission will be held in Room 5A06A, Office of Section, U.S. Nuclear Regulatory (NRC) has issued a revision of a guide Personnel Management Building, 1900 E Commission, Washington, DC 20555– in its Regulatory Guide Series. This Street, NW., Washington, DC. series has been developed to describe 0001, or by fax to (301) 415–2289, or by The Federal Prevailing Rate Advisory and make available to the public such e-mail to [email protected]. Issued Committee is composed of a Chair, five information as methods acceptable to guides may also be purchased from the representatives from labor unions the NRC staff for implementing specific National Technical Information Service holding exclusive bargaining rights for parts of the NRC’s regulations, (NTIS) on a standing order basis. Details Federal blue-collar employees, and five techniques used by the staff in its on this service may be obtained by representatives from Federal agencies. review of applications for permits and writing NTIS at 5285 Port Royal Road, Entitlement to membership on the licenses, and data needed by the NRC Springfield, VA 22161; telephone 1– Committee is provided for in 5 U.S.C. staff in its review of applications for 800–553–6847; http://www.ntis.gov/. 5347. permits and licenses. Regulatory guides are not copyrighted, The Committee’s primary Revision 3 of Regulatory Guide 1.32, the Commission approval is not responsibility is to review the Prevailing ‘‘Criteria for Power Systems for Nuclear required to reproduce them. (5 U.S.C. Rate System and other matters pertinent Power Plants,’’ provides guidance to 552(a)) to establishing prevailing rates under licensees and applicants of nuclear subchapter IV, chapter 53, 5 U.S.C., as Dated at Rockville, MD this 4th day of power, research, and test reactors amended, and from time to time advise March 2004. concerning methods acceptable to the the Office of Personnel Management. NRC staff for complying with the NRC’s For the Nuclear Regulatory Commission. This scheduled meeting will start in regulations for the design, operation, Jack R. Strosnider, open session with both labor and and testing of electric power systems in Deputy Director, Office of Nuclear Regulatory management representatives attending. nuclear power plants. Research. During the meeting either the labor Comments and suggestions in [FR Doc. 04–5973 Filed 3–16–04; 8:45 am] members or the management members connection with items for inclusion in BILLING CODE 7590–01–M may caucus separately with the Chair to guides currently being developed or devise strategy and formulate positions. improvements in all published guides Premature disclosure of the matters are encouraged at any time. Written discussed in these caucuses would comments may be submitted to the unacceptably impair the ability of the Rules and Directives Branch, Division of Committee to reach a consensus on the

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matters being considered and would in the public interest and consistent Commission may issue an order disrupt substantially the disposition of with the protection of investors and the granting the application, unless the its business. Therefore, these caucuses purposes fairly intended by the 1939 Commission orders a hearing. will be closed to the public because of Act. For the Commission, by the Division of a determination made by the Director of Section 314(d) requires the obligor to Corporation Finance, pursuant to delegated the Office of Personnel Management furnish to the indenture trustee authority. under the provisions of section 10(d) of certificates or opinions of fair value J. Lynn Taylor, the Federal Advisory Committee Act from an engineer, appraiser or other Assistant Secretary. (Pub. L. 92–463) and 5 U.S.C. expert upon any release of collateral [FR Doc. 04–5987 Filed 3–16–04; 8:45 am] 552b(c)(9)(B). These caucuses may, from the lien of the indenture. The BILLING CODE 8010–01–M depending on the issues involved, engineer, appraiser or other expert must constitute a substantial portion of a opine that the proposed release will not meeting. impair the security under the indenture SECURITIES AND EXCHANGE Annually, the Chair compiles a report in contravention of the provisions of the COMMISSION of pay issues discussed and concluded indenture. The application requests an recommendations. These reports are exemption from Section 314(d) for Issuer Delisting; Notice of Application available to the public, upon written specified dispositions of collateral that of Drew Industries Incorporated To request to the Committee’s Secretary. are made in Covanta Energy’s and the Withdraw Its Common Stock, $.01 Par The public is invited to submit guarantors’ ordinary course of business. Value, From Listing and Registration material in writing to the Chair on In its application, Covanta Energy on the American Stock Exchange LLC Federal Wage System pay matters felt to alleges that: File No. 1–13646 be deserving of the Committee’s 1. The indenture permits Covanta attention. Additional information on Energy and the guarantors to dispose of March 11, 2004. this meeting may be obtained by collateral in the ordinary course of their Drew Industries Incorporated, a contacting the Committee’s Secretary, business; Delaware corporation (‘‘Issuer’’), has Office of Personnel Management, 2. Covanta Energy and the guarantors filed an application with the Securities Federal Prevailing Rate Advisory will deliver to the trustee annual and Exchange Commission Committee, Room 5538, 1900 E Street, consolidated financial statements (‘‘Commission’’), pursuant to section NW., Washington, DC 20415 (202) 606– audited by certified independent 12(d) of the Securities Exchange Act of 1500. accounts; and 1934 (‘‘Act’’) 1 and Rule 12d2–2(d) 2 Dated: March 3, 2004. 3. Covanta Energy and the guarantors thereunder, to withdraw its Common Stock, $.01 par value (‘‘Security’’), from Mary M. Rose, will deliver to the trustee a semi-annual certificate stating that all dispositions of listing and registration on the American Chairperson, Federal Prevailing Rate Stock Exchange LLC (‘‘Amex’’ or Advisory Committee. collateral during the relevant six-month ‘‘Exchange’’). [FR Doc. 04–5999 Filed 3–16–04; 8:45 am] period occurred in Covanta Energy’s and the guarantors’ ordinary course of The Board of Directors (‘‘Board’’) of BILLING CODE 6325–49–P business and that all of the proceeds the Issuer unanimously approved a were used as permitted by the resolution on November 13, 2003, to indenture. withdraw the Issuer’s Security from SECURITIES AND EXCHANGE Any interested persons should look to listing on the Amex and to list the COMMISSION the application for a more detailed Security on New York Stock Exchange [File No. 22–28730] statement of the asserted matters of fact (‘‘NYSE’’). The Board states that it is and law. The application is on file in taking such action to avoid the direct Application and Opportunity for the Commission’s Public Reference and indirect costs and the division of Hearing: Covanta Energy Corporation Section, File Number 22–28730, 450 the market resulting from dual listing on Amex and NYSE. In addition, the Board March 11, 2004. Fifth Street, NW., Washington, DC 20549. states that it determined that it is in the The Securities and Exchange best interest of the Issuer to list the Commission gives notice that Covanta The Commission also gives notice that any interested persons may request, in Security on the NYSE. Energy Corporation has filed an The Issuer stated in its application application under Section 304(d) of the writing, that a hearing be held on this matter. Interested persons must submit that it has met the requirements of Trust Indenture Act of 1939. Covanta Amex Rule 8 by complying with all Energy asks the Commission to exempt those requests to the Commission no later than April 12, 2004. Interested applicable laws in the State of Delaware, from the certificate or opinion delivery in which it is incorporated, and with the requirements of Section 314(d) of the persons must include the following in their request for a hearing on this Amex’s rules governing an issuer’s 1939 Act certain provisions of an voluntary withdrawal of a security from indenture between Covanta Energy, matter: —The nature of that person’s interest; listing and registration. certain guarantors and U.S. Bank The Issuer’s application relates solely —The reasons for the request; and National Association, as trustee. The to the withdrawal of the Securities from —The issues of law or fact raised by the indenture relates to 8.25% Senior listing on the Amex and shall not affect application that the interested person Secured Notes due 2011. its continued listing on the NYSE or its desires to refute or request a hearing Section 304(d) of the 1939 Act, in obligation to be registered under section on. part, authorizes the Commission to 12(b) of the Act.3 exempt conditionally or The interested person should address Any interested person may, on or unconditionally any indenture from one this request for a hearing to: Jonathan G. before April 5, 2004, submit by letter to or more provisions of the 1939 Act. The Katz, Secretary, Securities and Exchange Commission may provide an exemption Commission, 450 Fifth Street, NW., 1 15 U.S.C. 78l(d). under Section 304(d) if it finds that the Washington, DC 20549–0609. At any 2 17 CFR 240.12d2–2(d). exemption is necessary or appropriate time after April 12, 2004, the 3 15 U.S.C. 78l(b).

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the Secretary of the Securities and The Issuer stated in its application to Section 19(b)(1) of the Securities Exchange Commission, 450 Fifth Street, that it has met the requirements of Exchange Act of 1934 (‘‘Act’’) 1 and Rule NW., Washington, DC 20549–0609, facts Amex Rule l8 by complying with all 19b–4 thereunder,2 a proposed rule bearing upon whether the application applicable laws in the State of South change to amend Amex Rules 128A, has been made in accordance with the Carolina, in which it is incorporated, 1000, and 1000A regarding the rules of the Amex and what terms, if and with the Amex’s rules governing an participation in Exchange Traded Fund any, should be imposed by the issuer’s voluntary withdrawal of a (‘‘ETF’’) trades executed on the Commission for the protection of security from listing and registration. Exchange by registered traders and investors. All comment letters should The Issuer’s application relates solely specialists and the allocation by the refer to File No. 1–13646. The to the withdrawal of the Security from specialist of those trades to the Commission, based on the information listing on the Amex and from appropriate party. On February 13, submitted to it, will issue an order registration under Section 12(b) of the 2003, September 8, 2003, November 3, granting the application after the date Act 3 and shall not affect its obligation 2003, and December 10, 2003, mentioned above, unless the to be registered under Section 12(g) of respectively, the Amex filed Commission determines to order a the Act.4 Amendment Nos. 1, 2, 3, and 4 to the hearing on the matter. Any interested person may, on or proposed rule change.3 The proposed rule change, as amended, was published For the Commission, by the Division of before April 5, 2004, submit by letter to Market Regulation, pursuant to delegated the Secretary of the Securities and for comment in the Federal Register on 4 authority. 4 Exchange Commission, 450 Fifth Street, January 20, 2004. The Commission Jonathan G. Katz, NW., Washington, DC 20549–0609, facts received no comments on the proposal. On January 12, 2004, the Exchange filed Secretary. bearing upon whether the application Amendment No. 5 to the proposed rule [FR Doc. 04–5953 Filed 3–16–04; 8:45 am] has been made in accordance with the rules of the Amex and what terms, if change.5 BILLING CODE 8010–01–P any, should be imposed by the After careful review, the Commission Commission for the protection of finds that the proposed rule change, as investors. All comment letters should amended, is consistent with the SECURITIES AND EXCHANGE requirements of the Act and the rules COMMISSION refer to File No. 1–12669. The Commission, based on the information and regulations thereunder applicable to 6 Issuer Delisting; Notice of Application submitted to it, will issue an order a national securities exchange. In of SCBT Financial Corporation To granting the application after the date particular, the Commission believes that the proposal is consistent with Section Withdraw Its Common Stock, $2.50 Par mentioned above, unless the 6(b)(5) of the Act,7 which requires, Value, From Listing and Registration Commission determines to order a among other things, that the Amex’s on the American Stock Exchange LLC hearing on the matter. rules be designed to prevent fraudulent File No. 1–12669 For the Commission, by the Division of Market Regulation, pursuant to and manipulative acts and practices, to March 11, 2004. delegated authority. 5 promote just and equitable principles of trade, to remove impediments to and SCBT Financial Corporation, a South Jonathan G. Katz, perfect the mechanism of a free and Carolina corporation (‘‘Issuer’’), has Secretary. open market and a national market filed an application with the Securities system, and, in general, to protect and Exchange Commission [FR Doc. 04–5952 Filed 3–16–04; 8:45 am] BILLING CODE 8010–01–P investors and the public interest. (‘‘Commission’’), pursuant to section The proposed rule change provides 12(d) of the Securities Exchange Act of that when participation in ETF trades is 1934 (‘‘Act’’) 1 and Rule 12d2–2(d) SECURITIES AND EXCHANGE being allocated, the specialist will thereunder,2 to withdraw its Common COMMISSION receive a greater than equal share when Stock, $2.50 par value (‘‘Security’’), on parity with registered traders. Under from listing and registration on the [Release No. 34–49396; File No. SR–Amex– the proposed rule change, an ETF American Stock Exchange LLC (‘‘Amex’’ 2002–35] or ‘‘Exchange’’). Self-Regulatory Organizations; Order 1 15 U.S.C. 78s(b)(1). 2 The Board of Directors (‘‘Board’’) of Granting Approval to Proposed Rule 17 CFR 240.19b–4. 3 See letters from Claire P. McGrath, Senior Vice the Issuer unanimously approved a Change and Amendment Nos. 1, 2, 3, resolution on February 20, 2003 to President and Deputy General Counsel, Amex, to 4, and 5 Thereto by the American Nancy Sanow, Assistant Director, Division of withdraw the Issuer’s Security from Stock Exchange LLC To Amend Rules Market Regulation (‘‘Division’’), Commission, dated listing on the Amex and to list the 128A, 1000, and 1000A With Respect to February 12, 2003 (‘‘Amendment No. 1’’); September 5, 2003 (‘‘Amendment No. 2’’); October Security on NASDAQ Stock Market. The the Participation in Exchange Traded Board states that the reasons for taking 30, 2003 (‘‘Amendment No. 3’’); and December 9, Fund Trades Executed on the 2003 (‘‘Amendment No. 4’’). such action are the desire to participate Exchange by Registered Traders and 4 See Securities Exchange Act Release No. 49058 in a multiple market system, the desire Specialists and the Allocation of Those (January 12, 2004), 69 FR 2754 (‘‘Notice’’). for more liquidity in the Security Trades to the Appropriate Party 5 See letter from Claire P. McGrath, Senior Vice (which can be typical for securities President and Deputy General Counsel, Amex, to trading on the NASDAQ), and the March 11, 2004. Nancy Sanow, Assistant Director, Division, Commission, dated January 9, 2004 (‘‘Amendment ability to use the symbol ‘‘SCBT’’, On April 22, 2002, the American No. 5’’). Amendment No. 5 made technical which will closely associate the stock Stock Exchange LLC (‘‘Amex’’) filed corrections that were already included in the Notice symbol with the Issuer’s name and the with the Securities and Exchange and that the Exchange had committed to formally Issuer’s subsidiary banks. Commission (‘‘Commission’’), pursuant submit by filing an amendment. 6 In approving this proposal, the Commission has considered the proposed rule’s impact on 4 17 CFR 200.30–3(a)(1). 3 15 U.S.C. 781(b). efficiency, competition, and capital formation. 15 1 15 U.S.C. 78l(d). 4 15 U.S.C. 781(g). U.S.C. 78c(f). 2 17 CFR 240.12d2–2(d). 5 17 CFR 200.30–3(a)(1). 7 15 U.S.C. 78f(b)(5).

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Trading Committee created by the Exchange Commission (‘‘Commission’’), 11Aa3–1 under the Act.7 The CBOE has Exchange will determine the percentage pursuant to section 19(b)(1) of the received Commission approval to trade of the specialist’s participation for each Securities Exchange Act of 1934 options on the following Russell ETF on a case-by-case basis, depending (‘‘Act’’),1 and Rule 19b–4 thereunder,2 a Indexes.8 on the liquidity of the product, the type proposed rule change to amend certain Russell 2000 Index of orders sent to the Exchange and its CBOE rules to provide for the listing Russell 2000 Growth Index competitors, and the type of order flow and trading on the Exchange of options Russell 2000 Value Index  the Exchange seeks to attract.8 The on the Russell Top 200 Index, the Russell 1000 Index  Commission believes that the proposed Russell Top 200 Growth Index, and the Russell 1000 Growth Index  rule change should provide for a Russell Top 200 Value Index (together, Russell 1000 Value Index reasonable participation allocation in the ‘‘Russell Top 200 Indexes’’ or Russell 3000 Index ETFs between specialists and registered ‘‘Indexes’’). Russell 3000 Growth Index traders based on their respective On November 25, 2003, the CBOE Russell 3000 Value Index responsibilities and obligations. The filed Amendment No. 1 to the proposed Russell MidCap Index Commission notes that the proposed rule change.3 On January 6, 2004, the Russell MidCap Growth Index rule change sets forth a method to be CBOE filed Amendment No. 2 to the Russell MidCap Value Index used by the specialist in allocating proposed rule change.4 The proposed Index Design shares to registered traders and provides rule change and Amendments Nos. 1 an articulated sequence for allocating an and 2 were published for comment in According to the Exchange, each of ETF trade in a situation where a the Federal Register on January 28, the three Russell Top 200 Indexes is customer order is on parity with the 2004.5 The Commission received one designed to be a comprehensive specialist and registered traders. The comment letter regarding the proposal.6 representation of the large cap sector of Commission also notes that these This order approves the proposed rule the U.S. equity market. The Russell Top methods are similar to the methods that change, as amended. 200 Indexes are capitalization-weighted the Commission has approved for the and include only the common stocks of allocation of contracts among registered II. Description of the Proposal corporations domiciled in the United traders in options trading on the The purpose of the proposed rule States and its territories and that are Exchange.9 change is to permit the Exchange to list traded on the NYSE, NASDAQ or the It is therefore ordered, pursuant to and trade cash-settled, European-style AMEX. Component stocks are weighted 10 section 19(b)(2) of the Act, that the options on the Russell Top 200 Indexes. by their ‘‘available’’ market proposed rule change, as amended, (File Each Russell Top 200 Index is a capitalization, which is calculated by No. SR–Amex–2002–35) be, and it capitalization-weighted Index multiplying the primary market price by hereby is, approved. containing various groups of stocks the ‘‘available’’ shares, i.e., the total For the Commission, by the Division of drawn from the 200 largest companies shares outstanding less corporate cross- Market Regulation, pursuant to delegated in the Russell 1000 Index, which is owned shares, ESOP and LESOP- authority.11 drawn from the largest 3,000 companies owned 9 shares comprising 10% or more J. Lynn Taylor, incorporated in the U.S. and its of shares outstanding, unlisted share Assistant Secretary. territories. These 3,000 companies classes and shares held by an [FR Doc. 04–5986 Filed 3–16–04; 8:45 am] represent approximately 98% of the individual, a group of individuals acting BILLING CODE 8010–01–P investable U.S. equity market. The together, or a corporation not in the Exchange represents that all of the Index that owns 10% or more of the components of the Russell Top 200 shares outstanding. Below is a brief SECURITIES AND EXCHANGE Indexes are traded on the New York description of each Russell Top 200 COMMISSION Stock Exchange, Inc. (‘‘NYSE’’), the Index:  [Release No. 34–49388; File No. SR–CBOE– American Stock Exchange, Inc. Russell Top 200 Index: Measures the 2003–51] (‘‘AMEX’’), or NASDAQ and are performance of the 200 largest ‘‘reported securities’’ as defined in Rule companies in the Russell 1000 Index, Self-Regulatory Organizations; Order which represents approximately 74% Approving Proposed Rule Change and 1 15 U.S.C. 78s(b)(1). of the Index total market Amendment Nos. 1 and 2 by the 2 17 CFR 240.19b–4. capitalization of the Russell 1000 Chicago Board Options Exchange, Inc. 3 See letter from James M. Flynn, Attorney, Legal Index. Relating to the Listing and Trading of Division, CBOE, to Kelly Riley, Senior Special Russell Top 200 Growth Index: Counsel, Division of Market Regulation Options on Three Russell Indexes (‘‘Division’’), Commission, dated November 21, Measures the performance of those 2003 (‘‘Amendment No. 1’’). In Amendment No. 1, Russell Top 200 companies with March 10, 2004. CBOE expanded its Statement on Burden on higher price-to-book ratios and higher I. Introduction Competition in response to Item 4 of Form 19b–4. forecasted growth values. The stocks 4 See letter from James M. Flynn, Attorney, Legal are also members of the Russell 1000 On October 30, 2003, the Chicago Division, CBOE, to Yvonne Fraticelli, Special Growth Index. Board Options Exchange, Inc. (‘‘CBOE’’ Counsel, Division, dated January 6, 2004 or ‘‘Exchange’’) filed with Securities and (‘‘Amendment No. 2’’). In Amendment No. 2, CBOE expanded its Statement on Comments on the 7 17 CFR 240.11Aa3–1. Proposed Rule Change Received from Members, 8 See Securities Exchange Act Release Nos. 31382 8 Under the proposal, the ETF Trading Committee Participants or Others in response to Item 5 of Form (October 30, 1992), 57 FR 52802 (November 5, 1992) will also determine the specialist participation in 19b–4. (order approving SR–CBOE–92–02) (listing and trades executed by the Exchange’s automatic 5 See Securities Exchange Act Release No. 49111 trading of options on the Russell 2000 Index) and execution (‘‘Auto-Ex’’) system, in lieu of the table (January 21, 2004), 69 FR 4189. 48591 (October 2, 2003), 68 FR 58728 (order of percentages set forth in the current rule. 6 See letter from Michael J. Simon, Senior Vice approving SR–CBOE–2003–17) (listing and trading 9 See Securities Exchange Act Release No. 47729 President and Secretary, International Securities of options on 11 Russell Indexes). (April 24, 2003), 68 FR 23344 (May 1, 2003). Exchange, Inc. (‘‘ISE’’) to Jonathan G. Katz, 9 ESOP and LESOP-owned shares represent, 10 15 U.S.C. 78s(b)(2). Secretary, Commission, dated November 11, 2003 generally, those shares of a corporation that are 11 17 CFR 200.30–3(a)(12). (‘‘ISE Letter’’). owned through employee stock ownership plans.

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Russell Top 200 Value Index: apportioned so that the sum of the total day (Intel Corp.) to a low of 314,000 Measures the performance of those capitalization of the Russell Top 200 shares per day (M & T Bank Corp.). The Russell Top 200 companies with Growth and Russell Top 200 Value CBOE represents that as of September lower price-to-book ratios and lower Indexes equals the total capitalization of 30, 2003, all of the Russell Top 200 forecasted growth values. The stocks the Russell Top 200 Index. The CBOE Index components were options eligible. are also members of the Russell 1000 represents that as of September 30, Calculation Value Index. 2003, the Russell Top 200 Growth Index All companies listed on the NYSE, and the Russell Top 200 Value Index The values of each Index currently are AMEX or NASDAQ are considered for have 129 and 140 components, being calculated by Reuters on behalf of inclusion in the universe of stocks that respectively. the Frank Russell Company and will be comprise the Russell Top 200 Indexes According to the CBOE, on September disseminated at 15-second intervals with the following exceptions: (1) 30, 2003, the Russell Top 200 Index had during regular CBOE trading hours to Stocks trading at less than $1.00 per a total capitalization of $7.2 trillion and market information vendors via the share on May 31; (2) non-U.S. the total capitalization of the Russell Options Price Reporting Authority incorporated companies; and (3) Top 200 Growth and Russell Top 200 (‘‘OPRA’’). preferred and convertible preferred Value Indexes was $3.9 trillion and $3.3 The CBOE notes that the methodology stock, redeemable shares, participating trillion, respectively. As of September used to calculate the value of each of the preferred stock, warrants and rights, 30, 2003, the stocks comprising the Russell Top 200 Indexes is similar to the trust receipts, royalty trusts, limited Russell Top 200 Indexes had an average methodology used to calculate the value liability companies, bulletin board market capitalization of $35.7 billion, of other well-known market- stocks, pink sheet stocks, closed-end ranging from a high of $298 billion capitalization weighted indexes. The investment companies, limited (General Electric Co.) to a low of $4.9 level of each Index reflects the total partnerships, and foreign stocks. billion (FOX Entertainment Group, market value of the component stocks The Russell Top 200 Growth Index Inc.).10 The number of available shares relative to a particular base period and and the Russell Top 200 Value Index are outstanding ranged from a high of 9.99 is computed by dividing the total both subsets of the Russell Top 200 billion (General Electric Co.) to a low of market value of the companies in each Index, which itself is a subset of the 66.7 million (M & T Bank Corp.), and Index by its respective Index divisor. Russell 1000 and Russell 3000 Indexes. averaged 1.04 billion shares. The six- The divisor is adjusted periodically to These Growth and Value versions of the month average daily trading volume for maintain consistent measurement of Russell Top 200 Index may contain Russell Top 200 Index components was each Index. The following is a table of common components, but the 5.68 million shares per day, ranging base dates and the respective Index capitalization of those components is from a high of 59.96 million shares per levels as of September 30, 2003:

Base date/base 9/30/03 index Index index value value

Russell Top 200 Index ...... 3/16/00/400.00 249.51 Russell Top 200 Growth Index ...... 3/16/00/400.00 191.94 Russell Top 200 Value Index ...... 3/16/00/400.00 324.72

Index Option Trading Company. The Frank Russell Company that, a stock removed from an Index for will be responsible for making all any reason will not be replaced until the According to the CBOE, options on necessary adjustments to the Indexes to next re-constitution. the Indexes will be A.M.-settled. In reflect component deletions, share Although the CBOE is not involved in addition to regular Index options, the changes, stock splits, stock dividends the maintenance of the Russell Top 200 Exchange may provide for the listing of (other than an ordinary cash dividend), long-term Index option series Indexes, the Exchange represents that it  and stock price adjustments due to (‘‘LEAPS ’’) in accordance with CBOE restructuring, mergers, or spin-offs will monitor each Russell Top 200 Rule 24.9, ‘‘Term of Index Option involving the underlying components. Index on an annual basis and, will Contracts.’’ Some corporate actions, such as stock notify the Commission if: (1) The For options on each Index, strike splits and stock dividends, would number of securities in any Index drops prices will be set to bracket the require simple changes to the available by 33% or more; (2) 10% or more of the respective Index in 2.5-point increments shares outstanding and the stock prices weight of any Index is represented by for strikes below $200 and 5 point of the underlying components. Other component securities having a market increments for strikes at or above $200. corporate actions, such as share value of less than $75 million; (3) less The minimum tick size for series trading issuances, would require a change in the than 80% of the weight of any Index is below $3 will be 0.05 and for series divisor of an Index to effect represented by component securities trading above $3 the minimum tick will adjustments. that are options eligible; (4) 10% or be 0.10. The trading hours for options The Exchange represents that the more of the weight of any Index is on all of the Indexes will be from 8:30 Russell Top 200 Indexes are re- represented by component securities a.m. to 3:15 p.m. Chicago time. constituted annually on June 30 and trading less than 20,000 shares per day; such reconstitution is based on prices Maintenance or (5) the largest component security and available shares outstanding as of accounts for more than 15% of the The CBOE represents that the Russell the preceding May 31. New Index weight of any Index or the largest five Top 200 Indexes will be monitored and components are added only as part of components in the aggregate account for maintained by the Frank Russell the annual re-constitution and, after

10 See Exhibit B to Form 19b–4.

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more than 50% of the weight of any Exchange. Additionally, the CBOE securities underlying the Indexes to Index.11 affirms that it possesses the necessary hedge the risks associated with their systems capacity to support new series portfolios more efficiently and Surveillance that would result from the introduction effectively. Accordingly, the The Exchange represents that the of the Russell Top 200 Index options. Commission believes that the trading of CBOE’s surveillance procedures are The CBOE also has been informed that options on the Russell Top 200 Indexes adequate to monitor the trading in OPRA has the capacity to support such will provide investors with important options and LEAPS on the Russell Top new series.12 trading and hedging mechanisms that 200 Indexes. Further, the Exchange will III. Summary of Comments should reflect accurately the overall have complete access to the information movement of stocks in the large regarding the trading activity of the The Commission received one capitalization range of U.S. equity underlying securities. comment letter regarding the proposal, securities.15 By broadening the hedging which stated that the CBOE had entered Exercise and Settlement and investment opportunities of into an exclusive licensing agreement to investors, the Commission believes that 13 The proposed options on each Index list and trade options on the Indexes. the trading of options on the Russell will expire on the Saturday following The commenter expressed concern Top 200 Indexes will serve to protect the third Friday of the expiration about the potential effect on investors, promote the public interest month. Trading in the expiring contract competition of an exclusive licensing and contribute to the maintenance of month will normally cease at 3:15 p.m. agreement and about the CBOE’s failure fair and orderly markets.16 (Chicago time) on the business day to discuss the competitive implications The trading of options on the Russell preceding the last day of trading in the of exclusive index licenses in its filing. Top 200 Indexes, however, raises component securities of each Index Because the CBOE’s proposal failed to several issues related to the design and (ordinarily the Thursday before discuss the competitive implications of structure of the Indexes, customer expiration Saturday, unless there is an the exclusive licenses, the commenter protection, surveillance, and market intervening holiday). The exercise urged the Commission to reject the impact. For the reasons discussed settlement value of each Index at option filing or to publish the proposal for below, the Commission believes that the expiration will be calculated by Reuters comment before acting on it. CBOE has adequately addressed these on behalf of the Frank Russell Company In response, the CBOE filed issues. based on the opening prices of the Amendment No. 1 to the proposal, component securities on the last which discussed the proposal’s burden A. Index Design and Structure business day prior to expiration. If a on competition. In Amendment No. 1, The Commission finds it is component security fails to open for the CBOE stated, among other things, appropriate and consistent with the Act trading, the exercise settlement value that the proposal would not impose a to classify the Russell Top 200 Indexes will be determined in accordance with burden on competition because the as broad-based, and thus, to permit CBOE Rules 24.7(e) and 24.9(a)(4). ability to grant an exclusive license Exchange rules applicable to the trading When the last trading day is moved enhances the value of indexes to index of broad-based index options to apply to because of Exchange holidays (such as providers, thereby providing index options on the Indexes. Specifically, the when the CBOE is closed on the Friday providers with an incentive to develop Commission believes that the Indexes before expiration), the last trading day additional indexes for derivatives are broad-based because they reflect a for expiring options on the Indexes will trading. The CBOE also noted that substantial segment of the U.S. equity be Wednesday and the exercise options on the Russell Top 200 Indexes market, in general, and the most highly settlement value of options on the would compete with other broad-based capitalized U.S. securities, in particular. Indexes at expiration will be determined index options and derivative products As of September 30, 2003, the Russell at the opening of regular trading on traded on the CBOE and on other Top 200 Index had a total capitalization Thursday. markets. of $7.2 trillion and the total Position Limits IV. Discussion capitalization of the Russell Top 200 The Commission finds that the Growth and Russell Top 200 Value The Exchange proposes to establish Indexes was $3.9 trillion and $3.3 position limits for options on the proposed rule change, as amended, is consistent with the requirements of the trillion, respectively. As of September Russell Top 200 Indexes at 50,000 30, 2003, the stocks comprising the contracts on either side of the market, Act and the rules and regulations thereunder applicable to a national Indexes had an average market and no more than 30,000 of such capitalization of $35.7 billion, ranging contracts may be in the series in the securities exchange, and, in particular, the requirements of Section 6(b)(5) of nearest expiration month. These limits 15 the Act.14 Specifically, the Commission Pursuant to Section 6(b)(5) of the Act, the are identical to the limits applicable to Commission must predicate approval of any new options on the Russell 2000 Index as believes that the listing and trading of securities product upon a finding that the specified in CBOE Rule 24.4(a). options on the Russell Top 200 Indexes introduction of such product is in the public will permit investors to participate in interest. Such a finding would be difficult with Exchange Rules Applicable the price movements of the securities respect to a product that served no hedging or other economic function, because any benefits that might Except as modified herein, the Rules comprising each Index. The be derived by market participants likely would be in Chapter XXIV of the CBOE’s rules Commission also believes that the outweighed by the potential for manipulation, will govern the trading of options on the trading of options on the Russell Top diminished public confidence in the integrity of the 200 Indexes will allow investors markets, and other valid regulatory concerns. In this Russell Top 200 Indexes on the regard, the trading of options on the Indexes will holding positions in some or all of the provide investors with hedging vehicles that should 11 The CBOE clarified that it will notify the reflect the overall movement of stocks representing Commission if any of these changes occur in any 12 See letter from Joe Corrigan, Executive Director, a substantial segment of the U.S. equity market. of the Indexes. Telephone conversation between OPRA, to William Speth, Director of Research, 16 In approving this rule, the Commission notes James Flynn, Attorney, Legal Division, CBOE, and CBOE, dated October 21, 2003 (‘‘OPRA Letter’’). that it has also considered the proposed rule’s Yvonne Fraticelli, Special Counsel, Division, 13 See ISE Letter, supra note 6. impact on efficiency, competition, and capital Commission, on March 3, 2004. 14 15 U.S.C. 78f(b)(5). formation. 15 U.S.C. 78c(f).

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from a high of $298 billion to a low of of the weight of any Index is ensure the protection of investors in $4.9 billion. In addition, as of represented by component securities options on the Russell Top 200 September 30, 2003, the largest single having a market value of less than $75 Indexes.20 component of the Russell Top 200 million; (3) less than 80% of the weight D. Surveillance Index, the Russell Top 200 Growth of any Index is represented by Index, and the Russell Top 200 Value component securities that are options The Commission generally believes Index represented 4.15%, 7.63%, and eligible; (4) 10% or more of the weight that a surveillance sharing agreement 7.47% of the weight of their respective of any Index is represented by between an exchange proposing to list a Indexes, and the five largest component component securities trading less than stock index derivative product and the stocks represented 17.62%, 28.55%, and 20,000 shares per day; or (5) the largest exchange(s) trading the stocks 23.39% of the weight of their respective component security accounts for more underlying the derivative product is an Indexes. The component securities of than 15% of the weight of any Index or important measure for surveillance of the Indexes are diverse, actively traded, the largest five components in the the derivative and underlying securities and represent a broad cross-section of aggregate account for more than 50% of markets. Such agreements ensure the highly capitalized securities in the U.S. the weight of any Index.18 Accordingly, availability of information necessary to equity market. The CBOE has also the Commission believes that these detect and deter potential represented that all of the component factors minimize the potential for manipulations and other trading abuses, securities of the Indexes are reported manipulation because it is unlikely that thereby making the stock index product securities, and that as of September 30, attempted manipulation of the prices of less readily susceptible to manipulation. 2003, all of the Russell Top 200 Index the Indexes’ components would affect In this regard, the CBOE, the NYSE, the components are options eligible.17 significantly the Indexes’ values. AMEX, and the NASD are all members 21 Accordingly, the Commission believes Finally, the CBOE has proposed of the ISG and the ISG Agreement will that it is appropriate for the Exchange to position and exercise limits for options apply to the trading of options on the classify the Indexes as broad-based and on the Indexes that are identical to the Indexes. Further, the CBOE has apply its rules governing broad-based position and exercise limits for options represented that its surveillance index options to options on the Indexes. on other Russell Indexes traded on the procedures are adequate to monitor 19 trading in options, including LEAPS, on B. Potential for Manipulation CBOE. Moreover, the surveillance procedures discussed below should the Indexes. The Commission also believes that the detect as well as deter potential E. Market Impact general broad diversification, manipulation and other trading abuses. capitalizations, liquidity, and relative The Commission believes that the weightings of the component securities C. Customer Protection listing and trading of options on the of the Indexes significantly minimize Russell Top 200 Indexes on the The Commission believes that a Exchange will not adversely impact the the potential for manipulation of the regulatory system designed to protect Indexes. First, as noted above, the underlying securities markets. First, as public customers must be in place described above, the Russell 200 Russell Top 200 Indexes represent a before the trading of sophisticated broad cross-section of highly capitalized Indexes are broad-based and no one financial instruments, such as the stock or industry group dominates any U.S. companies and no single security trading of options on the Russell Top dominates any of the Indexes. Second, of the Indexes. Second, as noted above, 200 Indexes (including full-value and the stocks contained in the Indexes have as of September 30, 2003, the total reduced value LEAPS on the Indexes), market capitalizations of the Russell large capitalizations and are actively can commence on a national securities traded. Third, existing CBOE stock Top 200 Index, the Russell Top 200 exchange. The Commission notes that Growth Index, and the Russell Top 200 index options rules and surveillance the trading of standardized exchange- procedures will apply to options on the Value Index were $7.2 trillion, $3.9 traded options occurs in an trillion, and $3.3 trillion, respectively. Indexes. Fourth, the Exchange has environment that is designed to ensure, established position and exercise limits Third, as of September 30, 2003, the six- among other things, that: (1) The special month average daily trading volume of for options on the Russell Top 200 risks of options are disclosed to public Indexes that will serve to minimize the component securities of the Russell customers; (2) only investors capable of potential manipulation and market Top 200 Index, the Russell Top 200 evaluating and bearing the risk of impact concerns. Fifth, the risk to Growth Index, and the Russell Top 200 options trading are engaged in such investors of contra-party non- Value Index was approximately 5.67 trading; and (3) special compliance performance will be minimized because million shares, 6.5 million shares, and procedures are applicable to options options on the Indexes will be issued 3.98 million shares, respectively. accounts. Accordingly, because the and guaranteed by the Options Clearing Fourth, the CBOE has represented that options on the Indexes, including Corporation like other standardized it will notify the Commission when: (1) LEAPS, will be subject to the same The number of securities in any Index regulatory regime as the other 20 In addition, the CBOE has represented that the drops by 33% or more; (2) 10% or more standardized options traded on the Exchange has the necessary systems capacity to CBOE, the Commission believes that support these new series of options that would 17 The CBOE’s option listing standards, which are adequate safeguards are in place to result from the introduction of options on the uniform among the options exchanges, provide that Indexes. OPRA also has represented that it has the a security underlying an option must, among other capacity to support the new series that would result things, meet the following requirements: (1) The 18 See note 11, supra. If the composition of any from the introduction of options on the Indexes. See public float must be at least 7 million shares; (2) of the underlying securities of any Index were to Opra Letter, supra note. 11. there must be a minimum of 2,000 holders of the change substantially, the Commission’s decision 21 The ISG was formed on July 14, 1983, to, underlying security; (3) trading volume must have regarding the appropriateness of the current among other things, coordinate more effectively been at least 2.4 million shares over the preceding maintenance standards for the Indexes would be surveillance and investigative information sharing twelve months; and (4) the market price per share reevaluated, and additional approval under Section arrangements in the stock and option markets. All must have been at least $7.50 for a majority of 19(b) of the Act might be necessary to continue to of the registered national securities exchanges and business days during the preceding three calendar trade options on the Indexes. the NASD are members of the ISG. In addition, months. See CBOE Rule 5.3, Interpretation and 19 See CBOE Rule 24.4, ‘‘Position Limits for futures exchanges and non-U.S. exchanges and Policy.01. Broad-Based Index Options.’’ associations are affiliate members of the ISG.

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options traded in the U.S. Lastly, the SECURITIES AND EXCHANGE Commission finds that the proposal is Commission believes that settling COMMISSION consistent with the requirements of options on the Russell Top 200 Indexes section 6(b) of the Act,6 in general, and [Release No. 34–49387; File No. SR–CHX– 7 based on the opening prices of 2003–27] section 6(b)(5) of the Act, in particular, component securities is reasonable and which requires that the rules of an consistent with the Act because it may Self-Regulatory Organizations; Order Exchange be designed to promote just contribute to the orderly unwinding of Approving Proposed Rule Change and and equitable principles of trade, to positions in options on the Indexes Amendment No. 1 by The Chicago remove impediments and to perfect the upon expiration. Stock Exchange, Incorporated Relating mechanism of a free and open market to Execution of Limit Orders Following and a national market system, and, in F. Exclusive Licensing Agreement an Exempted ITS Trade-Through general, to protect investors and the As noted above, the ISE raised public interest. March 10, 2004. The Commission believes that the concerns about the CBOE’s exclusive On August 7, 2003, the Chicago Stock licensing agreement with the Frank obligations on specialists to execute Exchange, Inc. (‘‘CHX’’ or ‘‘Exchange’’) limit orders resting on the specialist Russell Company to trade options on the filed with the Securities and Exchange Russell Top 200 Indexes. The book when the primary market is Commission (‘‘SEC’’ or ‘‘Commission’’), trading at the limit price, or when the Commission notes that the ISE has filed pursuant to section 19(b)(1) of the a petition for rulemaking to amend Rule bid or offer at the limit price has been Securities Exchange Act of 1934 (the exhausted in the primary market were 19c–5 under the Act 22 to prohibit ‘‘Act’’),1 and Rule 19b–4 thereunder,2 a options exchanges from entering into obligations that the CHX assumed proposed rule change to render voluntarily in order to make its market exclusive licensing agreements with voluntary a CHX specialist’s obligation respect to index option products.23 The more attractive to sources of order flow. to fill limit orders for the Nasdaq-100 The Commission believes that the Commission believes that the issues Index, the Dow Jones Industrial Average raised by the ISE in its comment letter business decision to potentially forego Index and the Standard & Poor’s 500 order flow by no longer requiring and in its petition for rulemaking 3 Index (collectively ‘‘Exempt ETFs’’) specialist to provide such protections to regarding the exclusive licensing of resting in the specialist’s book when the index option products should be certain limit orders is a judgment the primary market is trading at the limit Act allows the CHX to make. considered comprehensibly rather than price, or when the bid or offering at the It is therefore ordered, pursuant to on an ad hoc basis in the context of a limit price has been exhausted in the section 19(b)(2) of the Act,8 that the particular index option product or primary market. On January 20, 2004, proposed rule change, as amended, (File products, such as the Russell Top 200 the Exchange filed Amendment No. 1 to No. SR–CHX–2003–27) be, and hereby Indexes. In addition, the Commission the proposed rule change. believes that investors will benefit from The proposed rule change, as is, approved. the availability of trading options on the amended, was published for comment For the Commission, by the Division Russell Top 200 Indexes because, as in the Federal Register on February 3, of Market Regulation, pursuant to 9 described above, they will provide 2004.4 The Commission received no delegated authority. investors with additional hedging and comments on the proposal. This order J. Lynn Taylor, trading vehicles. Accordingly, the approves the proposed rule change, as Assistant Secretary. Commission believes that it is amended. [FR Doc. 04–5948 Filed 3–16–04; 8:45 am] appropriate in the public interest to The CHX has represented that the approve the current proposal in order to proposed rule change is warranted BILLING CODE 8010–01–P make options on the Russell Top 200 because the Exchange believes that it is Indexes available to investors while the difficult, if not impossible, for a CHX SECURITIES AND EXCHANGE Commission considers the issues specialist to obtain liquidity on behalf of COMMISSION presented by the exclusive licensing of his customers via the Intermarket index options products in the context of Trading System in the case of Exempt the ISE’s petition for rulemaking. ETFs given the dynamic and rapidly [Release No. 34–49393; File No. SR–ISE– 2003–26] changing nature of the exchange-traded V. Conclusion fund market. Self-Regulatory Organizations; Notice It is therefore ordered, pursuant to The Commission finds that the of Filing of a Proposed Rule Change Section 19(b)(2) of the Act,24 that the proposed rule change is consistent with and Amendments No. 1, 2 and 3 proposed rule change (SR–CBOE–2003– the requirements of the Act and the Thereto by the International Securities 51), as amended, is approved. rules and regulations thereunder that Exchange, Inc. To Amend Its Rules are applicable to a national securities Governing Limits on the Entry of For the Commission, by the Division of exchange.5 Specifically, the Market Regulation, pursuant to delegated Orders of Less Than Ten Contracts 25 and Revise the Quotation Size authority. 1 15 U.S.C. 78s(b)(1). Requirements for Market Makers J. Lynn Taylor, 2 17 CFR 240.19b–4. 3 Assistant Secretary. The Commission notes that the Exchange has March 10, 2004. represented that to the extent the CHX Board of [FR Doc. 04–5949 Filed 3–16–04; 8:45 am] Governors designates subject issues other than or in Pursuant to section 19(b)(1) of the BILLING CODE 8010–01–P addition to the Exempt ETFs identified in this Securities Exchange Act of 1934 proposed rule change, the Exchange will file those changes with the Commission as an interpretation 22 17 CFR 240.19c–5. of an existing rule pursuant to Section 19(b)(3)(A) competition, and capital formation. See 15 U.S.C. 23 See Letter from David Krell, President and of the Act and Rule 19b–4 thereunder. 78c(f). Chief Executive Officer, ISE, to Jonathan Katz, 4 See Securities Exchange Act Release No. 49130 6 15 U.S.C. 78f(b). Secretary, Commission, dated November 1, 2002. (January 27, 2004), 69 FR 5227. 7 15 U.S.C. 78f(b)(5). 24 15 U.S.C. 78s(b)(2). 5 In approving the proposal, the Commission has 8 15 U.S.C. 78s(b)(2). 25 17 CFR 200.30–3(a)(12). considered the rule’s impact on efficiency, 9 17 CFR 200.30–3(a)(12).

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(‘‘Act’’),1 and Rule 19b–4 thereunder,2 System, as principal or agent, multiple Rule 805. Market Maker Orders notice is hereby given that on October orders for a single trading interest if one 14, 2003, the International Securities or more orders is for fewer than ten (10) (b) Options Classes Other Than Those Exchange, Inc. (‘‘ISE’’ or ‘‘Exchange’’), contracts. to Which Appointed. filed with the Securities and Exchange (2) Non-Customer Orders for fewer (1) A market maker may enter all Commission (‘‘Commission’’) the than ten (10) contracts will be rejected order types permitted to be entered by proposed rule change as described in or cancelled automatically if such non-customer participants under the Items I, II and III below, which Items orders would cause the size of the Rules to buy or sell options in classes have been prepared by the ISE. On Exchange’s best bid or offer to be fewer of options listed on the Exchange to January 13, 2004, the ISE filed than ten (10) contracts.] which the market maker is not Amendment No. 1 to the proposed rule Rule 803. Obligations of Market Makers appointed under Rule 802, provided change (‘‘Amendment No. 1’’).3 On that: January 30, 2004, the ISE filed (c) Primary Market Makers. In Amendment No. 2 to the proposed rule addition to the obligations contained in (i) market maker orders are subject to change (‘‘Amendment No. 2’’).4 On this Rule for market makers generally, the limitations contained in Rule 717[(c) March 8, 2004, the ISE filed for options classes to which a market and] (f) as [those] that paragraph[s Amendment No. 3 to the proposed rule maker is the appointed Primary Market apply] applies to principal orders change (‘‘Amendment No. 3’’).5 The Maker, it shall have the responsibility entered by Electronic Access Members; to: Commission is publishing this notice to (ii) the spread between a limit order solicit comments on the proposed rule (1) [Assure that each disseminated market quotation in each series of to buy and a limit order to sell the same change, as amended, from interested options contract complies with the persons. options is for a minimum of ten (10) contracts, or such other minimum parameters contained in Rule 803(b)(4); I. Self-Regulatory Organization’s number as the Exchange shall set from and Statement of the Terms of Substance of time to time. When the best bid (offer) (iii) the market maker does not enter the Proposed Rule Change on the Exchange represents one or more orders in options classes to which it is The Exchange proposes to modify ISE Public Customer Orders for less than a otherwise appointed, either as a Rules 717, 803–805 and 1614 to repeal total of ten (10) contracts at that price, Competitive or Primary Market Maker. the limits on the entry of orders and the Primary Market Maker is obligated revise the quotation requirements of to] When the disseminated market Rule 1614. Imposition of Fines for market makers. The text of the proposed quotation in a series of options is for Minor Rule Violations rule change is set forth below. Proposed less than ten (10) contracts, buy (sell) at (d) Violations Subject to Fines. The new language is in italics; proposed that price the number of contracts deletions are in [brackets]. needed to make the disseminated quote following is a list of the rule violations subject to, and the applicable sanctions * * * * * firm for ten (10) contracts to incoming Linkage orders as provided in Rule that may be imposed by the Exchange Rule 717. Limitations on Orders 1900(7) and (8). pursuant to, this Rule: (c) Reserved. [Order Size. (2) Address Public Customer Orders (5) Order Entry (Rule 717). Violations (1) Electronic Access Members are that are not automatically executed of Rule 717(a), [(c)–(e)] (d)–(f) regarding prohibited from entering into the because there is a displayed bid or offer limitations on orders entered into the on another exchange trading the same System by Electronic Access Members, 1 15 U.S.C. 78s(b)(1). options contract that is better than the as well as violations of Rule 805(b)(1)(i) 2 17 CFR 240.19b–4. best bid or offer on the Exchange. regarding [restrictions on] orders 3 See letter from Michael Simon, Senior Vice (3) Initiate trading in each series entered by market makers, will be President and General Counsel, ISE, to Nancy J. pursuant to Rule 701. Sanow, Assistant Director, Division of Market subject to the fines listed below. Each Regulation (‘‘Division’’), Commission, dated Rule 804. Market Maker Quotations paragraph of Rule 717 subject to this January 12, 2004. In Amendment No. 1, the ISE made technical corrections to the text of the (b) Size Associated with Quotes. A Rule shall be treated separately for proposed rule change. In addition, in Amendment market maker’s bid and offer for a series purposes of determining the number of No. 1, the ISE corrected an omission in the original cumulative violations. rule text, amending ISE Rule 1614(d)(5) to include of options contracts shall be ISE Rule 717(f) as a minor rule violation meriting accompanied by the number of contracts * * * * * the fines set forth in ISE Rule 1614(d)(5) (addressing at that price the market maker is willing violations of order-entry rules). to buy or sell upon receipt of an order II. Self-Regulatory Organization’s 4 See letter from Michael Simon, Senior Vice or upon interaction with a quotation Statement of the Purpose of, and President and General Counsel, ISE, to Nancy J. Statutory Basis for, the Proposed Rule Sanow, Assistant Director, Division, Commission, entered by another market maker on the dated January 29, 2004. In Amendment No. 2, the Exchange. Unless the Exchange has Change ISE amended the text of the proposed rule change declared a fast market pursuant to Rule In its filing with the Commission, the to clarify that Primary Market Makers must buy 704, a market maker may not initially (sell) the number of contracts needed to maintain enter a bid or offer of less than ten (10) ISE included statements concerning the a firm quote for ten contracts when the purpose of, and basis for, the proposed disseminated ISE quotation is less than ten contracts. [Where the size associated contracts for orders incoming from the Options with a market maker’s bid or offer falls rule change and discussed any Intermarket Linkage. below ten (10) contracts due to comments it received on the proposed 5 See letter from Michael Simon, Senior Vice executions at that price and rule change. The text of these statements President and General Counsel, ISE, to Nancy J. may be examined at the places specified Sanow, Assistant Director, Division, Commission, consequently the size of the best bid or dated March 5, 2004. In Amendment No. 3, the ISE offer on the Exchange would be for less in Item IV below. The Exchange amended the text of the proposed rule change to than ten (10) contracts, the market prepared summaries, set forth in incorporate recently-approved changes to ISE Rule Sections A, B, and C below, of the most 804. See Securities Exchange Act Release No. 49278 maker shall enter a new bid or offer for (February 19, 2004), 69 FR 8716 (February 25, 2004) at least ten (10) contracts, either at the significant aspects of such statements. (SR–ISE–2003–34). same or a different price.]

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A. Self-Regulatory Organization’s prohibition on EAMs entering multiple Act in particular.11 The Exchange Statement of the Purpose of, and orders for the same trading interest if believes that the proposed rule change Statutory Basis for, the Proposed Rule one or more orders are for less than 10 is intended to remove impediments to Change contracts. In addition, this proposed and perfect the mechanism of a free and rule change will repeal the requirement open market and a national market 1. Purpose that market makers refresh their system, and, in general, to protect The purpose of the proposed rule quotations if there is a partial execution investors and the public interest. change is to revise the ISE’s restrictions that results in the ISE’s BBO size’s Specifically, the Exchange believes that on the entry of orders of less than 10 falling below 10 contracts.7 However, allowing EAMs to enter non-customer contracts, along with related market pending possible future changes to the orders of less than 10 contracts will maker quotation requirements. rules governing trading in the Linkage, provide non-customers with greater Currently, ISE rules require that the the Exchange does not propose to flexibility to improve the ISE’s BBO. Exchange’s best bid and offer (‘‘BBO’’) change the obligations in ISE Rule 1900 Also, the Exchange believes that by be at a size of at least 10 contracts at all that the ISE quotation be firm for at least allowing market makers to maintain times. To assure that the Exchange’s 10 contracts for Principal Orders and quotations of less than 10 contracts, BBO is at least 10 contracts, ISE rules Principal Acting as Agent Orders they can continue to provide investors contain several restrictions on orders of received through the Linkage. The PMM with liquidity at their stated prices less than 10 contracts and certain will continue to provide ‘‘derived’’ size without having to refresh their market maker obligations. when necessary for such Linkage orders. quotations for 10 contracts at a First, ISE Rule 804 requires market Lastly, the Exchange is proposing to potentially inferior price. Finally, the makers to establish quotations of at least amend ISE Rule 1614(d)(5) to include Exchange believes that eliminating the 10 contracts. That rule also provides ISE Rule 717(f) as a minor rule violation need for PMMs to ‘‘derive’’ quotations that if there is partial execution against subject to the fines applicable to will eliminate opportunities for a quotation resulting in the size of the violations of order-entry rules.8 The manipulative practices, such as ‘‘small ISE BBO falling below 10 contracts, the Exchange proposes to include 717(f) as order baiting.’’ market maker must refresh its quotation a minor rule violation harmonizes the (either at the same or different price) so B. Self-Regulatory Organization’s treatment of EAMs and market makers that it is firm for at least 10 contracts. 9 Statement on Burden on Competition Similarly, ISE Rule 717 prohibits pursuant to that rule. The Exchange believes that the The proposed rule change does not Electronic Access Members (‘‘EAMs’’) impose any burden on competition that from submitting orders for non- proposed rule change will provide significant benefits. First, the Exchange is not necessary or appropriate in customers of less than 10 contracts that furtherance of the purposes of the Act. would cause the ISE BBO to be for less believes that the proposed rule change than 10 contracts. If an EAM enters an will provide non-customers with more C. Self-Regulatory Organization’s order for a Public Customer at the BBO flexibility in the entry of orders by Statement on Comments on the for less than 10 contracts, Rule 803 allowing them to enter orders of less Proposed Rule Change Received From requires that the Primary Market Maker than 10 contracts. It also will remove Members, Participants or Others (‘‘PMM’’) either trade that order or the burden on PMMs either to trade out small customer orders or derive size for The Exchange has not solicited, and supplement the size of the order so that does not intend to solicit, comments on the displayed quotation is for at least 10 such orders, which the Exchange believes will eliminate ‘‘small order this proposed rule change. The contracts. The Exchange refers to the Exchange has not received any supplemental quoting obligation as the baiting’’ manipulative conduct. At the same time, the Exchange will retain the unsolicited written comments from need for the PMM to ‘‘derive’’ the members or other interested parties. additional size. Finally, to avoid obligation that market makers initially manipulative practices related to the enter quotations for a size of at least 10 III. Date of Effectiveness of the PMM’s obligation to derive additional contracts. The Exchange believes that Proposed Rule Change and Timing for size, an EAM is prohibited under Rule this is a necessary obligation for market Commission Action 717 from entering multiple orders of makers to provide reasonable liquidity Within 35 days of the date of less than 10 contracts for the same to the market place. publication of this notice in the Federal 6 trading interest. 2. Statutory Basis Register or within such longer period (i) This proposed rule change will not as the Commission may designate up to The ISE believes that the rule change change the requirement that market 90 days of such date if it finds such is consistent with Section 6(b) of the Act makers enter all quotations with a size longer period to be appropriate and in general 10 and Section 6(b)(5) of the of at least 10 contracts. It will: (1) publishes its reasons for so finding or Remove the prohibition on EAMs (ii) as to which the self-regulatory 7 entering non-customers orders that The ISE represents, however, that their system organization consents, the Commission improve the ISE’s BBO for less than 10 makes it impossible for a market maker’s quote ever to drop to zero, and that this proposed rule filing will: contracts, (2) repeal the obligation of the will not therefore change the obligation of a market (A) By order approve such proposed PMM either to ‘‘trade out’’ customer maker to maintain a continuous quote for options rule change, or orders of less than 10 contracts or derive in which they make a market. See ISE Rules 803(b) (B) Institute proceedings to determine and 804(e). Telephone conversation between additional size to maintain a 10-contract whether the proposed rule change displayed size, and (3) since there will Katherine Simmons, Associate General Counsel, ISE, and John Roeser, Special Counsel and should be disapproved. no longer be an obligation for PMMs to Elizabeth MacDonald, Attorney, Division, derive additional size, remove the Commission, February 11, 2004. IV. Solicitation of Comments 8 Telephone conversations between Joe Ferraro, Interested persons are invited to 6 The derived order obligation can lead to market Assistant General Counsel, ISE, and Elizabeth submit written data, views and manipulation called ‘‘small order baiting,’’ where MacDonald, Attorney, Division, Commission, customers enter small orders seeking to induce a February 18, 2004, and February 19, 2004. arguments concerning the foregoing, PMM to display greater size at that price, and then 9 Id. enter an order to execute against that derived size. 10 15 U.S.C. 78f(b). 11 15 U.S.C. 78f(b)(5).

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including whether the amended (‘‘Act’’)1 and Rule 19b–4 thereunder,2 vendors.5 If the Commission approves proposal is consistent with the Act. notice is hereby given that on October the proposed rule change, Nasdaq will Persons making written submissions 16, 2003, the National Association of announce an implementation schedule should file six copies thereof with the Securities Dealers, Inc. (‘‘NASD’’), soon after Commission approval, but in Secretary, Securities and Exchange through its subsidiary, The Nasdaq no case would the changes be Commission, 450 Fifth Street NW., Stock Market, Inc. (‘‘Nasdaq’’), filed implemented in less than 90 days after Washington, DC 20549–0609. with the Securities and Exchange approval. Comments may also be submitted Commission (‘‘Commission’’) the The text of the proposed rule change electronically at the following e-mail proposed rule change as described in is available at Nasdaq and at the address: [email protected]. All Items I, II, and III below, which Items Commission. comment letters should refer to File No. have been prepared by Nasdaq. On II. Self-Regulatory Organization’s SR–ISE–2003–26. This file number February 5, 2004, Nasdaq amended the Statement of the Purpose of, and 3 should be included on the subject line proposal. The Commission is Statutory Basis for, the Proposed Rule if e-mail is used. To help the publishing this notice to solicit Change Commission process and review your comments on the proposed rule change, comments more efficiently, comments as amended, from interested persons. In its filing with the Commission, should be sent in hard copy or by e- Nasdaq included statements concerning I. Self-Regulatory Organization’s mail, but not by both methods. Copies the purpose of and basis for the Statement of the Terms of Substance of of the submission, all subsequent proposed rule change and discussed any the Proposed Rule Change amendments, all written statements comments it received on the proposed with respect to the proposed rule Nasdaq proposes changes to permit it rule change. The text of these statements change that are filed with the to append a new modifier to trade may be examined at the places specified in Item IV below. Nasdaq has prepared Commission, and all written reports of pre-open and after-hours summaries, set forth in Sections A, B, communications relating to the trades not submitted to Nasdaq’s and C below, of the most significant proposed rule change between the Automated Confirmation Transaction aspects of such statements. Commission and any person, other than Service (‘‘ACT’’) within 90 seconds after those that may be withheld from the execution, and to require members to: A. Self-Regulatory Organization’s public in accordance with the (1) Include the time of execution on all Statement of the Purpose of, and provisions of 5 U.S.C. 552, will be reports submitted to ACT; (2) append Statutory Basis for, the Proposed Rule available for inspection and copying in the .W modifier to reports of ‘‘stop stock Change transactions;’’ (3) append the .W the Commission’s Public Reference 1. Purpose Room. Copies of such filing will also be modifier, as appropriate, to reports available for inspection and copying at submitted to ACT after 5:15 p.m.,4 and Market participants make trading and the principal office of the ISE. All (4) append the .PRP modifier to reports investment decisions based, in part, on submissions should refer to File No. of transactions in listed securities that information disseminated by Nasdaq SR–ISE–2003–26 and should be are executed at a price that is based on about trades executed in its market. submitted by April 7, 2004. a prior point in time. Nasdaq is proposing several changes For the Commission, by the Division of The proposal to implement a new that are designed to improve the quality Market Regulation, pursuant to delegated trade report modifier for pre-open and of the information disseminated. The authority.12 after hours trades that are reported late proposed changes will permit Nasdaq to append a new modifier to trade reports J. Lynn Taylor, must be approved by the respective members of the Consolidated Tape of pre-open and after-hours trades not Assistant Secretary. Association and the Nasdaq Unlisted submitted to ACT within 90 seconds [FR Doc. 04–5950 Filed 3–16–04; 8:45 am] Trading Privilege Plan. In addition, the after execution, and to require members BILLING CODE 8010–01–P proposal to require members to append to: (1) Include the time of execution on the .PRP modifier, as appropriate, to all reports submitted to ACT; (2) append reports of listed securities must be the .W modifier to reports of ‘‘stop stock SECURITIES AND EXCHANGE approved by the members of the transactions;’’ (3) append the .W COMMISSION Consolidated Tape Association. modifier, as appropriate, to reports The amendments contained in this submitted after 5:15 p.m.; and (4) [Release No. 34–49404; File No. SR–NASD– filing will be implemented as soon as append the .PRP modifier to reports of 2003–159] practical, should the Commission transactions in listed securities that are approve the filing, taking into executed at a price that is based on a Self-Regulatory Organizations; Notice consideration the system changes prior point in time. of Filing of Proposed Rule Change and required to be made by members and Amendment No. 1 by the National Late Pre-Open and After-Hours Trade Association of Securities Dealers, Inc. Reports 1 15 U.S.C. 78s(b)(1). to Permit Nasdaq to Append a New 2 17 CFR 240.19b–4. To provide market participants with Modifier to Trade Reports of Pre-Open 3 See February 4, 2004 letter from Peter R. more accurate information about the and After-Hours Trades Not Submitted Geraghty, Associate Vice President and Associate prices at which a security is trading to Nasdaq’s Automated Confirmation General Counsel, Nasdaq, to Katherine A. England, outside normal market hours, Nasdaq is Transaction Service, and Other Assistant Director, Division of Market Regulation, Commission and attachments (‘‘Amendment No. proposing to create a new trade Changes Regarding Trade Reporting 1’’). Amendment No. 1 completely replaced and superseded the original proposed rule change. 5 The NASD Small Firm Advisory Board March 11, 2004. 4 Nasdaq also is proposing to clarify that members (‘‘SFAB’’) requested that the change to require the Pursuant to section 19(b)(1) of the must append the .W modifier to a trade report if a time of execution on all trade reports be Securities Exchange Act of 1934 trade can be properly reported with both a .T implemented one year from the date of Commission modifier and a .W modifier. This clarification is approval so that small members would have necessary because ACT can accept only one sufficient time to make the necessary system 12 17 CFR 200.30–3(a)(12). modifier per trade report. See infra note 14. modifications.

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reporting modifier (the .ST modifier) to append the modifier. Automatically modifier to identify stop stock identify pre-open and after-hours trades appending the .SLD modifier improves transactions will ensure that the ‘‘stop that are reported late. Today, members the accuracy of the information stock prices’’ are not disseminated to generally are required to submit trade disseminated, because when a trade is market participants as trades reflective reports to ACT within 90 seconds of the reported late without the modifier it of the current market for the security.8 time of execution. However, if during appears on the tape as a current trade, Members and customers today often normal market hours a trade is not which can cause confusion if the price have an understanding or explicitly reported within 90 seconds, the member of the late reported trade is different agree as to how a customer’s order will must include a modifier (the .SLD from the current prices at which the be executed, especially if the order is for modifier) on the submission to ACT to security is trading. Appending the .SLD a large number of shares. For example, indicate that the trade report is late. The modifier eliminates the opportunity for upon receiving a market order from a modifier prevents the trade report from this confusion. customer, the member and the customer affecting the last sale calculation of the Including the time of execution on a agree that the member will execute the security and informs the market that the report also assists the NASD in order in pieces throughout the day, with price is ‘‘stale’’ because it is associated enforcing certain NASD rules, including the expectation that this ‘‘working’’ of with a trade executed at least a minute determining whether a trade is the order will result in a price to the and a half earlier. In contrast, for trades consistent with a member’s duty of best customer that is superior to the price at executed and reported in the pre-open execution. When NASD possesses the which the stock is trading at the time and after-hours sessions, there is no execution time of a trade they can the member receives the order. modifier equivalent to the .SLD modifier compare the trade price to, among other However, the member also may promise that can inform market participants that things, the bids and offers for the to ‘‘stop’’ the customer at or near the a price may be stale. Nasdaq is security at and around the time the current market price to ensure that the proposing to create the .ST modifier to trade was executed to determine customer does not receive an inferior identify stale prices in the pre-open and whether the price is consistent with price if the market moves against the after-hours sessions. those prices. Again, without the time of customer’s interest (e.g., the price of the Unlike the rules governing the .SLD execution, NASD’s ability to perform stock rises throughout the day when the modifier, members will not be required this surveillance is complicated. member is seeking to buy the security). to append the .ST modifier to late Today, approximately 99% of trade In such situations, when the customer’s reports of pre-open and after-hours reports submitted to ACT contain the order is executed, the trade must be trades. Members will continue to be time of execution, which means NASD reported at whichever price the member required to append the .T modifier and can conduct its automated surveillance used to fill the order, either the ‘‘stop include the time of execution on late and Nasdaq can append the modifiers stock price’’ or the better price. reports of pre-open and after-hours automatically, for nearly all of the trades Currently, if the member fills the trades; Nasdaq will convert the .T submitted to ACT. However, Nasdaq can customer’s order at a price that is the modifier to .ST, as appropriate, after improve both the quality of information average of several different execution comparing the time of execution to the it disseminates and the surveillance of prices, the trade must be reported with time of submission to ACT. its market if all reports submitted to the .W modifier, which informs market ACT contain the time of execution. With participants that the price is not based Reporting Time of Execution this current proposal, Nasdaq will on current trading.9 However, today To improve the accuracy of the eliminate the few instances in which information disseminated to market late trades are inappropriately not get disseminated as normal trades, and thus do participants and to enhance its disseminated as current trades and the not affect the high, low, and last sale calculations. automated surveillance, Nasdaq is full benefits of the NASD’s automated Excluding the equity leg trades from these calculations is important because the equity leg proposing to require members to surveillance systems can be achieved. transaction prices often include factors and include the time of execution on all Reporting Stop Stock Transactions adjustments that are not based on contemporaneous reports submitted to ACT.6 For example, trading in the securities. when a report contains the time of Nasdaq is proposing that members use Nasdaq will be seeking a proposed rule change the .W modifier to report the trade in the future to provide specific, standard guidance execution, Nasdaq’s systems can as to the appropriate method for reporting exchange determine whether the trade was execution scenario known as ‘‘stop 7 for physical transactions. At this time, Nasdaq has submitted timely or late. If the trade is stock’’ transactions. Using the .W not determined the manner that will be prescribed, submitted late and does not include the but until such time, members can continue to report 7 Presently, the .W modifier must be appended to these trades on an ‘‘as of’’ basis on the day late trade report modifier (the .SLD reports of trades whose prices are determined based following execution, or on the same day using the modifier), Nasdaq can automatically upon an average price or other special pricing .W modifier. formulae. 8 Until such time that the .W modifier is approved 6 Because of the SFAB’s comments concerning the Members have been given guidance that the .W and implemented for stop stock transactions, proposal to require the time of execution on all modifier is appropriate to report the equity trade Nasdaq believes it is appropriate for members to use reports submitted to ACT, Nasdaq will delay component of an ‘‘exchange for physical’’ the .SLD modifier. Using the .SLD modifier in these implementation of this requirement for a year after transaction. An exchange for physical transaction circumstances is not desirable as a permanent Commission approval. To provide members with involves two parties simultaneously executing a solution, however, because the modifier can be notice of the effective date of the requirement, futures contract transaction and an equity used only during normal market hours. In contrast, Nasdaq is proposing to add Interpretive Materials transaction (for the securities covered by the futures the .W modifier can be used between 9:30 a.m. and to the trade reporting rules stating the exact date contract), typically involving baskets (or exchange 5:15 p.m., and Nasdaq is proposing to extend the when the obligation becomes effective. Until such traded funds ‘‘ETFs) that replicate common use of the .W modifier until 6:30 p.m. Appending time, members will remain obligated to provide the indices. For example, party A will sell a basket of the .SLD modifier for stop stock situations is time of execution only in those circumstances stocks (or ETF) to party B, and party B satisfactory as a temporary solution because it will articulated in the NASD’s rules. To prevent simultaneously will sell to party A a futures prevent these trades from being included in the last confusion, the rule language modifications in this contract covering the basket (or ETF). sale calculation and market participants will be filing do not contain the changes required to Members also have been told that the equity leg informed that the price in [sic] not current. mandate the time of execution on all reports of an exchange for physical transaction can be 9 In some instances, however, a trade may not be submitted to ACT. These language changes will be reported on an ‘‘as of’’ basis on the day following required to be reported to Nasdaq if that the trade made at a time closer to the effective date of the the date of execution. Either approach is acceptable qualifies as the riskless leg of a riskless principal requirement. because both ensure that the equity leg trades do transaction. See e.g., NASD Rule 4632(d)(3)(B). See

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there is no modifier designated to price is based on average weighting or Prior Reference Price Trades—Listed identify a trade executed at a stop stock some other special pricing formula.12 Securities price. As a result, trades executed at To enable the NASD to conduct Presently, members are required to stop stock prices appear as current surveillance for proper use of the .W append the .PRP modifier to reports of market trades, when in fact the price modifier for Stop Stock Transactions, transactions in Nasdaq securities when may be based on the market several members will be required to record the the price of a trade is based on prior hours earlier. For example, a member time at which the member and the other 16 13 point in time. For example, a member fills a customer’s order at the end of the party agreed to the Stop Stock Price. is required to append the .PRP modifier day (which it received in the morning) Specifically, members must populate to a market on open order for a Nasdaq- at a stop stock price of $50, when the the time of execution field on the ACT listed stock executed more than 90 current market is trading at $52. When report with the time the member and the seconds after the market opens. The reported without a modifier, there is other party agreed to the Stop Stock .PRP modifier, however, is not required nothing to distinguish the trade at $50 Price; members will not be required to when reporting such transactions in from other trades occurring at that time include on the ACT report the actual listed securities.17 Requiring members at $52. Therefore, market participants time the trade was executed. to append the .PRP modifier to a trade Nasdaq also is seeking to extend the can be led to believe that the market is whose price is based on a prior point in hours during which the .W modifier can falling, especially if the stop stock time improves the quality of be submitted to ACT. Presently, the .W transaction is for a large number of information disseminated because modifier is accepted from 9:30 a.m. shares. Requiring members to use the .W market participants are informed that until 5:15 p.m., while ACT remains modifier to identify these trades will the price is not based on current market open until 6:30 p.m. Eastern Time. improve the information disseminated trading. Therefore, to improve the Nasdaq is proposing to modify ACT to about the prices at which stocks are quality of information disseminated accept the .W modifier from 5:15 p.m. trading on Nasdaq. concerning trading in listed securities, until 6:30 p.m. With this change, To prevent confusion with the terms Nasdaq is proposing to require members 10 11 members will be required to use the .W ‘‘stop order’’ and ‘‘stop-limit order,’’ to append the .PRP modifier, as modifier, as appropriate, for trades and to provide guidance as to the exact appropriate, to reports of transaction in circumstances in which use of the .W executed between 9:30 a.m. and 6:30 18 14 listed securities. modifier will be required, Nasdaq will p.m. However, for Stop Stock Members will be required to use the define the terms ‘‘Stop Stock Price’’ and Transactions, the .W modifier is not .PRP modifier in the same manner as ‘‘Stop Stock Transaction’’ in its rules. required if the trade is executed and required today for Nasdaq securities. Nasdaq is proposing to define the term reported within 90 seconds of the time Specifically, the price must be based on ‘‘Stop Stock Price’’ as the specified price the member and the party agreed to the 15 prior point in time and the member at which a member and another party Stop Stock Price. must include that prior time on the agree a Stop Stock Transaction will be report to ACT. That is, the price must 12 executed, and which price is based Because members will be required to include have existed at the time identified on upon the prices at which the security is the .W modifier and the time of execution on reports of Stop Stock Transactions, ACT is being the ACT report. In addition, the .PRP trading at the time the order is received programmed to reject any report submitted with the modifier is not required if the trade is by the member, taking into .W modifier that does not include the time of executed and reported within 90 consideration that the specified price execution. However, the time of execution is not seconds from the prior reference time.19 may deviate from the current market presently required when reporting .W trades based on average weighting or any other special pricing prices to factor in the size of the order formula, unless the trade is reported late. Because other party agreed to the Stop Stock Price, the Stop and the number of shares available at ACT will not be able to distinguish between Stop Stock Price is presumed to be informative to market those prices. Stock Transactions and other trades being reported participants because it is based on current market Nasdaq is proposing to define a ‘‘Stop with the .W, Nasdaq is proposing to require prices within the last 90 seconds. Stock Transaction’’ as any transaction members to include the time of execution on all 16 The .PRP modifier also is required when trades reported with the .W modifier, including reporting transactions in OTC Bulletin Board and that is the result of an order in which those based on average weighting or other special OTC Equity Securities. a member and another party agree that pricing formulae. 17 For example, securities listed on the NYSE and the order will be executed at a Stop 13 In contrast, members will be required to reported to Nasdaq pursuant to Rule 6420. Stock Price or better, and the order is include the actual time a trade is executed when 18 Until such time that the .PRP modifier is using the .W modifier to identify a trade whose executed at the Stop Stock Price. An approved and implemented, Nasdaq believes it is price is based on average weighting or some other appropriate for members to use the .SLD modifier order that is not executed at the Stop special pricing formulae. in circumstances in which the .PRP modifier would Stock Price does not comply with the 14 ACT can accept only one modifier per trade be appropriate. Using the .SLD modifier in these definition of a Stop Stock Transaction, report. In some instances, however, a trade can be circumstances is not desirable as a permanent but nevertheless may need to be executed in a manner in which the .T modifier and solution, however, because the .SLD modifier the .W modifier would be appropriate. For example, identifies trades that are executed timely, but the reported with the .W modifier if the an average price trade that is executed between 4 report of the trade is late. Whereas the .PRP p.m. and 6:30 p.m. Because the trade is executed modifier identifies trades that are executed late, also, Nasdaq General News—Riskless Principal and reported outside normal market hours, the .T when measured against the reference time, but that Negative Consent Letters and .W Modifier (January modifier is appropriate. However, the .W modifier are reported within 90 seconds of the time the trade 31, 2001), which is available at http:// also would be appropriate because the trade price is actually executed. Appending the .SLD modifier www.nasdaqtrader. com/Trader/News/2001/ is based on an average price. Whenever a trade is in the ‘‘.PRP’’ circumstances is satisfactory as a generalnews/ 01312001.stm. executed in a manner that implicates both the .T temporary solution because it will prevent the trade 10 Barron’s Dictionary of Finance and Investment modifier and the .W modifier, Nasdaq is proposing from being included in the last sale calculation and Terms (4th ed. 1995) defines the term ‘‘stop order’’ that members must utilize the .W modifier. Using market participants will be informed that the price as an ‘‘order to a securities broker to buy or sell at the .W modifier in these situations will ensure that in [sic] not current. the market price once the security has traded at a market participants are informed that the price is 19 For example, a member is not required to specified price called the stop price.’’ not based on current trading of the security. append the .PRP modifier to a market on open order 11 Barron’s Dictionary of Finance and Investment 15 Because members have 90 seconds to report a executed and reported prior to 9:31:30 a.m. Eastern Terms (4th ed. 1995) defines the term ‘‘stop-limit trade, the presumption is that any prices reported Time. Members have up to 90 seconds from time order’’ as an ‘‘order to a securities broker with in that time period are informative to the market as of execution to report a trade. As such, reports instructions to buy or sell at a specified price or an indication of current trading. Therefore, when a received within the 90-second period are better (called the stop-limit price) but only after a Stop Stock Transaction is executed and reported considered current. In this example, the market on given stop price has been reached or passed.’’ within 90 seconds of the time the member and the Continued

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2. Statutory Basis Persons making written submissions information provided in this AC Nasdaq believes that the proposed should file six copies thereof with the replaces the guidance in paragraph 61, rule change is consistent with the Secretary, Securities and Exchange § 33.90 IMI of AC 33–2B, Aircraft provisions of section 15A of the Act,20 Commission, 450 Fifth Street, NW., Engine Type Certification Handbook. in general, and section 15A(b)(6) of the Washington, DC 20549–0609. DATES: The Engine and Propeller Act,21 in particular, in that it is designed Comments may also be submitted Directorate, Aircraft Certification to prevent fraudulent and manipulative electronically at the following e-mail Service, issued AC 33.90–1 on March 5, acts and practices, to foster cooperation address: [email protected]. All 2004. and coordination with persons engaged comment letters should refer to File No. FOR FURTHER INFORMATION CONTACT: in regulating, clearing, settling, SR–NASD–2003–159. This file number Marc Bouthillier, Engine and Propeller processing information with respect to, should be included on the subject line Standards Staff, ANE–110, 12 New and facilitating transactions in if e-mail is used. To help the England Executive Park, Burlington, MA securities, and to protect investors and Commission process and review your 01803–5299; telephone: (781) 238–7120; the public interest. Nasdaq believes the comments more efficiently, comments fax (781) 238–7199; e-mail: proposed rule change will improve the should be sent in hardcopy or by e-mail [email protected]. quality of information disseminated by but not by both methods. Copies of the We have filed in the docket all Nasdaq about the prices at which stocks submission, all subsequent comments we received, as well as a are trading in its market and will amendments, all written statements report summarizing each substantive improve the regulation of the Nasdaq with respect to the proposed rule public contact with FAA personnel market by increasing the number of change that are filed with the concerning this advisory circular. If you trades monitored using the NASD’s Commission, and all written wish to review the docket in person, go automated surveillance systems. communications relating to the to the above address between 9 a.m. and proposed rule change between the 5 p.m., Monday through Friday, except B. Self-Regulatory Organization’s Commission and any person, other than Statement on Burden on Competition Federal holidays. those that may be withheld from the How to Obtain Copies: A paper copy Nasdaq does not believe that the public in accordance with the of AC 33.90–1 may be obtained by proposed rule change will result in any provisions of 5 U.S.C. 552, will be writing to the U.S. Department of burden on competition that is not available for inspection and copying in Transportation, Subsequent Distribution necessary or appropriate in furtherance the Commission’s Public Reference Office, DOT Warehouse, SVC–121.23, of the purposes of the Act, as amended. Room. Copies of such filing will also be Ardmore East Business Center, 3341Q available for inspection and copying at C. Self-Regulatory Organization’s 75th Ave., Landover, MD 20785, the principal office of the NASD. All Statement on Comments on the telephone 301–322–5377, or by faxing submissions should refer to file number Proposed Rule Change Received From your request to the warehouse at 301– SR–NASD–2003–159 and should be Members, Participants or Others 386–5394. The AC will also be available submitted by April 7, 2004. on the Internet at ‘‘http://www.faa. Written comments were neither For the Commission, by the Division of gov/’’, select ‘‘Regulations and Policies’’ solicited nor received. Market Regulation, pursuant to delegated and the link title ‘‘Advisory Circulars’’. 22 III. Date of Effectiveness of the authority. SUPPLEMENTARY INFORMATION: The FAA Proposed Rule Change and Timing For J. Lynn Taylor, published a notice in the Federal Commission Action Assistant Secretary. Register on June 4, 2003 (68 FR 33563) Within 35 days of the date of [FR Doc. 04–5980 Filed 3–16–04; 8:45 am] to announce the availability of the publication of this notice in the Federal BILLING CODE 8010–01–P proposed AC and invite interested Register or within such longer period (i) parties to comment. as the Commission may designate up to (Authority: 49 U.S.C. 106(g), 40113, 44701– 90 days of such date if it finds such DEPARTMENT OF TRANSPORTATION 44702, 44704.) longer period to be appropriate and Federal Aviation Administration publishes its reasons for so finding or Issued in Burlington, Massachusetts, on (ii) as to which NASD consents, the March 5, 2004. Advisory Circular; Initial Maintenance Jay J. Pardee, Commission will: Inspection (IMI) Test for Turbine Manager, Engine and Propeller Directorate, A. by order approve such proposed Engines rule change, or Aircraft Certification Service. B. institute proceedings to determine AGENCY: Federal Aviation [FR Doc. 04–6046 Filed 3–16–04; 8:45 am] whether the proposed rule change Administration, DOT. BILLING CODE 4910–13–M should be disapproved. ACTION: Notice of issuance of advisory circular. IV. Solicitation of Comments DEPARTMENT OF TRANSPORTATION Interested persons are invited to SUMMARY: The Federal Aviation submit written data, views and Administration (FAA) announces the Federal Highway Administration arguments concerning the foregoing, issuance of Advisory Circular (AC) including whether the proposed rule Number 33.90–1, Initial Maintenance Environmental Impact Statement; change is consistent with the Act. Inspection (IMI) Test for Turbine Washington, DC Engines. This AC sets forth acceptable AGENCIES: Federal Highway open order was executed and reported within 90 methods of compliance with the test Administration, District of Columbia seconds from the time that the market opened at requirements of § 33.90 of title 14 of the 9:30 a.m. Therefore, the price would be considered Division; District of Columbia, current and does not need to be identified with a Code of Federal Regulations, Initial Department of Transportation. maintenance inspection. The modifier. ACTION: Notice of Intent (NOI) to prepare 20 15 U.S.C. 78o–3. an Environmental Impact Statement. 21 15 U.S.C. 78o–3(b)(6). 22 17 CFR 200.30–3(a)(12).

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SUMMARY: The U.S. Federal Highway Street, NW., on the east to Cortland SUMMARY: The FHWA is issuing this Administration (FHWA) in coordination Place, NW., on the west shall be re- notice to advise the public that a draft with the District of Columbia opened to the public for motor vehicle environmental impact statement will be Department of Transportation (DDOT) traffic, with the repair and prepared for the consolidated Winston- in Washington, DC is issuing this notice reconstruction of Klingle Road, which Salem Northern Beltway proposed to advise the public that an shall include the establishment of a highway projects in Forsyth County, Environmental Impact Statement (EIS) District Department of Transportation North Carolina. will be prepared to assess the potential storm water management plan, to FOR FURTHER INFORMATION CONTACT: Ms. effects of the proposed action to reopen commence no later than 180 days Emily Lawton, Operations Engineer, Klingle Road, NW., to vehicular access following November 13, 2003.’ Federal Highway Administration, 310 in Washington, DC. To ensure that all The environmental review of the New Bern Avenue, Suite 410, Raleigh, significant issues related to the vehicular use alternatives will be North Carolina 27601, Telephone: (919) proposed action are identified, DDOT conducted in accordance with the 856–4350. will conduct a public scoping meeting. requirements of the National SUPPLEMENTARY INFORMATION: The FOR FURTHER INFORMATION CONTACT: Environmental Policy Act (NEPA) of FHWA, in cooperation with the North Federal Highway Administration, 1969, as amended (42 U.S.C. 4371, et Carolina Department of Transportation District of Columbia Division: Mr. seq.), Council on Environmental Quality (NCDOT), will prepare a draft Michael Hicks, Environmental/Urban (CEQ) regulations (40 CFR parts 1500– environmental impact statement (EIS) Engineer, 1990 K Street, NW., Suite 510, 1508), FHWA Code of Federal on the consolidated Northern Beltway Washington, DC 20006–1103, (202) 219– Regulations (CFR 23 part 771.101– proposed highway projects (Western 3536; or Maurice Keys, District of 771.137 et seq.), and all applicable Section, Eastern Section, and Eastern Columbia, Department of Federal, state, and local government Section Extension) of Winston-Salem in Transportation, (202) 671–2740. laws, regulations, and policies. Forsyth County. The proposed action SUPPLEMENTARY INFORMATION: Klingle Public Scoping Meeting: DDOT will would be the construction of a multi- Road is located in northwest solicit public comments for lane divided, controlled access highway Washington, DC and runs northeast to consideration and possible on new location from US 158 southwest west from Beach Drive in Rock Creek incorporation in the Draft EIS through of Winston-Salem to US 311 southeast Park to the Washington National public scoping, including a scoping of Winston-Salem. A Final Cathedral. The segment of Klingle Road meeting, on the proposed action. To Environmental Impact Statement on the between Porter Street, NW. and ensure that the full range of issues Western Section, the portion from US Cortland Place, NW. (approximate related to this proposed action are 158 southwest of Winston-Salem to US designations) was closed to traffic in addressed and all significant issues are 52 northwest of Winston-Salem 1991 due to deterioration of the identified early in the process, (FHWA–NC–EIS–92–06–F), was roadway related to drainage failure. The comments and suggestions are invited approved by FHWA on 14 March 1996. Council of the District of Columbia from all interested and/or potentially The Western Section will improve never officially closed this segment of affected parties. These individuals or north-south connectivity in western Klingle Road through a legislative groups are invited to attend the public Forsyth County, provide improved action, however [this portion of the road scoping. The meeting location and time direct regional connections to other remains closed to traffic. Failure of the will be publicized in local newspapers major highways, and relieve congestion drainage system has resulted in severe and elsewhere. Written comments will on roadways in western Forsyth County. deterioration of the roadway, headwalls, be accepted throughout this process and A Draft Environmental Impact and underlying stormwater system. At a can be forwarded to the address Statement on the Eastern Section, the minimum the no-action alternative provided above. portion of the facility from US 52 would include repairing the retaining (Catalog of Federal Domestic Assistance northwest of Winston-Salem to US 421 walls to better manage stormwater run- Program Number 20.205 Highway Planning east of Winston-Salem (FHWA–NC– off in the study area. The purpose of the and Construction. The regulations EIS–95–04–D), was approved by FHWA proposed action is to provide an east- implementing Executive Order 12372 on 14 September 1995. The Eastern west connection through Rock Creek regarding intergovernmental consultation on Section together with the Eastern Park in the District of Columbia by Federal programs and activities apply to this Section Extension will serve regional program). reopening Klingle Road to vehicular traffic by improving system linkage and access. The Klingle Road Restoration Issued on: March 12, 2004. continuity, relieving congestion on Act of 2003, Bill #B15–0061, was Gary L. Henderson, major highways including US 52 and introduced by the Council of the District Division Administrator, District of Columbia US 421, and by providing the route for of Columbia in January 2003 and was Division, Federal Highway Administration. future I–74. The proposed action is a enacted in March 2003. Section 3 of the [FR Doc. 04–6027 Filed 3–16–04; 8:45 am] part of the 1987 Winston-Salem/Forsyth bill specifically states ‘‘The portion of BILLING CODE 4910–22–M County Thoroughfare Plan. In addition, Klingle Road, NW., between Porter the projects together will provide a Street, NW., on the east to Cortland northern loop highway in accordance Place, NW., on the west, shall be DEPARTMENT OF TRANSPORTATION with the 1989 North Carolina Highway repaired and re-opened to the public for Trust Fund Act. vehicular traffic and recreational uses.’’ Federal Highway Administration Alternatives under consideration The directive to repair Klingle Road was include: (1) The ‘‘no-build’’, (2) codified in to law as part of the Fiscal Environmental Impact Statement: improving existing facilities, (3) Year 2004 Budget Support Act of 2003, Forsyth County, NC transportation demand management and effective November 13, 2003 (D.C. Law AGENCY: Federal Highway transportation system management 15–39; D.C. Official Code § 9–115.11). Administration (FHWA), DOT. alternatives; (4) mass transit According to this Act: The portion of alternatives; and (5) a controlled access ACTION: Revised notice of intent. Klingle Road, NW., between Porter highway on new location.

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Letters describing the proposed action intend to prepare a Final Environmental criteria established to demonstrate that and soliciting comments will be sent to Impact Statement on this action. granting an exemption is likely to appropriate Federal, State, and local (Catalog of Federal Domestic Assistance achieve an equal or greater level of agencies. A public meeting and Program Number 20.205, Highway Research safety than exists without the meetings with local officials and Planning and Construction. The regulations exemption. Each applicant has, prior to neighborhood groups will be held in the implementing Executive Order 12372 this notice, received a letter of final study area. A public hearing will also be regarding intergovernmental consultation on disposition on his/her individual held. Information on the time and place Federal programs and activities apply to this exemption request. Those decision of the public hearing will be provided program.) letters fully outlined the basis for the in the local news media. The Issued on March 3, 2004. denial and constitute final agency supplemental draft EIS will be available Emily Lawton, action. The list published today for public and agency review and Operations Engineer, Raleigh, North Carolina. summarizes the agency’s recent denials comment at the time of the hearing. No [FR Doc. 04–5965 Filed 3–16–04; 8:45 am] as required under 49 U.S.C. 31315(b)(4) formal scoping meeting is planned at BILLING CODE 4910–22–M by periodically publishing names and this time. reason for denials. To ensure that the full range of issues The following 20 applicants lacked related to the proposed action are DEPARTMENT OF TRANSPORTATION sufficient recent driving experience over addressed and all significant issues are three years: identified, comments and suggestions Federal Motor Carrier Safety Allen, Percy B. are invited from all interested parties. Administration Bacon, Nick D. Comments and questions concerning the Clifton, Jr., Raymond E. proposed action should be directed to Qualification of Drivers; Exemption Coleman, Jerry D. the FHWA at the address provided Applications; Vision Hallwachs, Jerry Hansen, Michael P. above. AGENCY: Federal Motor Carrier Safety Hardee, Richard G. (Catalog of Federal Domestic Assistance Administration (FMCSA), DOT. Henson, Richard M. Program Number 20.205, Highway Research ACTION: Notice of denials. Planning and Construction. The regulations Hillman, Robert Hoefner, Patrick L. implementing Executive Order 12372 SUMMARY: The FMCSA announces its regarding intergovernmental consultation on King, William J. denial of 43 applications from Levine, Martin L. Federal programs and activities apply to this individuals who requested an program.) McEntyre, William C. exemption from the Federal vision Issued on: March 3, 2004. Meyer, Fred G. standards applicable to interstate truck Osuna, Jorge L. Emily Lawton, drivers and the reasons for the denials. Pierce, Jr., Charles E. Operations Engineer, Raleigh, North Carolina. The FMCSA has statutory authority to Reynolds, Glennis R. [FR Doc. 04–5964 Filed 3–16–04; 8:45 am] exempt individuals from vision Sharp, Ronald L. BILLING CODE 4910–22–M standards if the exemptions granted will Weeks, David N. not compromise safety. The agency has Whitlow, Jr., Bernard R. concluded that granting these Two applicants, Mr. David W. DEPARTMENT OF TRANSPORTATION exemptions does not provide a level of Shrimplin and Mr. Timothy D. Leggett, safety that will equal or exceed the level Federal Highway Administration do not have experience operating a of safety maintained without the commercial motor vehicle (CMV) and Environmental Impact Statement: exemptions for these commercial motor therefore presented no evidence from Watauga and Caldwell Counties, NC vehicle drivers. which FMCSA can conclude that FOR FURTHER INFORMATION CONTACT: Ms. granting the exemption is likely to AGENCY: Federal Highway Sandra Zywokarte, Office of Bus and achieve a level of safety equal to that Administration (FHWA), DOT. Truck Standards and Operations, (MC– existing without the exemption. ACTION: Rescindment of notice of intent. PSD), (202) 366–2987, Department of The following 9 applicants do not Transportation, FMCSA, 400 Seventh have 3 years of experience driving a SUMMARY: The FHWA rescinds its notice Street, SW., Washington, DC 20590– CMV on public highways with the of intent to prepare an environmental 0001. Office hours are from 7:45 a.m. to vision deficiency: impact statement for the proposed US 4:15 p.m., e.t., Monday through Friday, Burnworth, Randy L. 321 Improvements project at Blowing except Federal holidays. Huelster, Randy Rock. SUPPLEMENTARY INFORMATION: McFalls, Carol W. FOR FURTHER INFORMATION CONTACT: Ms. Miller, Larry Emily Lawton, Operations Engineer, Background Rich, Ross C. Federal Highway Administration, 310 Under 49 U.S.C. 31315 and 31136(e), Roberts, Michael J. New Bern Avenue, Suite 410, Raleigh, FMCSA may grant an exemption from Schwab, Charles F. North Carolina 27601, Telephone: (919) the Federal vision standards for a Steinmetz, Daniel L. 856–4350. renewable 2-year period if it finds such Willhoyt, Richard P. SUPPLEMENTARY INFORMATION: The an exemption would likely achieve a Four applicants do not have 3 years FHWA, in cooperation with the North level of safety that is equivalent to, or of recent experience driving a CMV with Carolina Department of Transportation greater than, the level that would be the vision deficiency: (NCDOT), prepared a Draft achieved absent such an exemption (49 Crane, James R. Environmental Impact Statement CFR 391.41(b)(10)). Gruszecki, Ronald J. (FHWA–NC–EIS–02–D) for the US 321 Accordingly, FMCSA evaluated 43 Holland, Billie E. Improvements project at Blowing Rock individual exemption requests on their Powell, Richard G. in Caldwell and Watauga Counties, merits and made a determination that Three applicants, Mr. Danny North Carolina. The FHWA does not these applicants do not satisfy the Netherland, Mr. Edward J. Perfetto and

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Mr. James J. Schaaf were issued restrictions (TSRs) through the use of date of the amendment to allow for citations in conjunction with a CMV temporary transponders on the NEC- notice and comment would be crash, a disqualifying offense. North End between Mill River impracticable, unnecessary, and Two applicants, Mr. Daniel Hollins Interlocking at mile post (MP) 73.6 and contrary to the public interest. and Mr. Thomas J. Long, III, had more High Street Interlocking at MP 142.9. Modification of Temporary Speed than two CMV moving violations during After reviewing data that Amtrak Restriction Requirements the 3-year period or while their provided in August 2003 on its current applications were pending. Applicants transponder attrition rate, FRA has As stated above, in an August 28, are only allowed two moving violations. decided to grant the requested relief 2001 letter, Amtrak requested that FRA One applicant’s, Mr. Billy R. Fox’, III, until April 1, 2005. suspend the Order’s requirement to license was suspended during the 3-year DATES: The amendments to the Order enforce temporary speed restrictions period because of a moving violation. are effective March 17, 2004. with temporary transponders until Amtrak completed full implementation Applicants do not qualify for an FOR FURTHER INFORMATION CONTACT: Paul exemption with a suspension during the Weber, Railroad Safety Specialist, of data radio enforcement. In its October 3-year period. Signal and Train Control Division, 2001 response, FRA asked Amtrak to One applicant, Mr. Terry L. Larkey, Office of Safety, Mail Stop 25, FRA, provide more documentation to justify this request. had two serious CMV violations within 1120 Vermont Avenue, NW., On August 13, 2003, Amtrak enclosed the 3-year period. Each applicant is Washington, DC 20590 (202) 493–6258); data supporting its assertion that allowed a total of two moving citations, or Patricia V. Sun, Office of Chief of which only one can be serious. unanticipated technical difficulties such Counsel, Mail Stop 10, FRA, 1120 as multiple changes to the original data One applicant, Mr. Tracy R. Vermont Avenue, NW., Washington, DC Heathcock, contributed to a crash while base, problems with high speed trains 20590 (202) 493–6038). sets, and an unusually high transponder operating a CMV, which is a ADDRESSES: Docket: For access to the disqualifying offense. attrition rate, had prevented it from docket to read background documents adhering to the Order’s implementation Issued on: March 11, 2004. or comments received, go to http:// schedule. Amtrak stated that it had Rose A. McMurray, dms.dot.gov at any time or to Room PL– discovered the cause of the high Associate Administrator for Policy and 401 on the plaza level of the Nassif transponder attrition rate and was Program Development. Building, 400 Seventh Street, SW., correcting it by replacing current [FR Doc. 04–6031 Filed 3–16–04; 8:45 am] Washington, DC, between 9 a.m. and 5 transponders with updated ones. As this BILLING CODE 4910–EX–P p.m., Monday through Friday, except replacement process would, however, Federal Holidays. result in further delays in ACSES SUPPLEMENTARY INFORMATION: The implementation, Amtrak repeated its DEPARTMENT OF TRANSPORTATION Order, as published on July 22, 1998, set request that FRA grant it temporary performance standards for cab signal/ relief from the Order’s requirement to Federal Railroad Administration automatic train control and ACSES enforce TSRs through the use of [Docket No. FRA 2001–9972; Formerly FRA systems, increased certain maximum temporary transponders on the NEC- Docket No. 87–2; Notice No. 16] authorized train speeds, and contained North End between Mill River safety requirements supporting Interlocking at MP 73.6 and High Street RIN 2130–AB20 improved rail service on the NEC. 63 FR Interlocking at MP 142.9. This would be Automatic Train Control (ATC) and 39343. Among other requirements, the a temporary measure to allow Amtrak to Advanced Civil Speed Enforcement Order required all trains operating on reap the significant safety benefits of System (ACSES); Northeast Corridor track controlled by Amtrak on the NEC- positive 4 train separation and (NEC) Railroads North End to be controlled by permanent civil speed restrictions as it locomotives equipped to respond to continued to update transponders and AGENCY: Federal Railroad ACSES by October 1, 1999. FRA has implement the data radio infrastructure Administration (FRA), Department of subsequently amended the Order eight needed to support ACSES’ positive train Transportation (DOT). times to reset the implementation stop override feature as well as direct ACTION: Amendment to Order of schedule and make technical changes. transfer of TSR data from the Particular Applicability requiring 64 FR 54410, October 6, 1999; 65 FR dispatching system to the onboard ACSES between New Haven, 62795, October 19, 2000; 66 FR 1718, computer. Amtrak anticipated full Connecticut, and Boston, January 9, 2001; 66 FR 34512, June 28, implementation of ACSES by the end of Massachusetts—modification of 200l; 66 FR 57771, November 16, 2001; the first quarter of 2005. temporary speed restriction 67 FR 6753, February 12, 2002; 67 FR FRA agrees that partial requirements. 14769, March 22, 2002; and 67 FR implementation of ACSES would 47884, July 22, 2002. provide significant safety benefits as SUMMARY: In 1998, FRA issued an Order The ninth amendment to this Order is work continues towards full of Particular Applicability (Order) effective upon publication instead of 30 implementation of the system. FRA is requiring all trains operating on the days after the publication date in order therefore amending the Order as Northeast Corridor (NEC) between New to realize the significant safety and follows: Haven, Connecticut, and Boston, transportation benefits afforded by the (1) Effective March 17, 2004, until no Massachusetts (NEC-North End) to be ACSES system at the earliest possible later than April 1, 2005, the requirement equipped to respond to the new time. All affected parties have been to achieve positive enforcement of TSRs Advanced Civil Speed Enforcement notified. through temporary transponders is System (ACSES). In August of 2001, the FRA is not reopening the comment suspended on the mainline track National Railroad Passenger Corporation period since the amendment to this between Mill River Interlocking (MP (Amtrak) requested that FRA Order is necessary to avoid disruption 73.6) and High Street Interlocking (MP temporarily suspend the Order’s of rail service. Under these 142.9) to allow Amtrak to achieve direct requirement to enforce temporary speed circumstances, delaying the effective loading of TSR data from its computer-

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aided dispatching center to the on-board system, including positive enforcement Abstract: This information collection computers of all trains operating of TSRs, are fully functional. provides a method of awarding through this territory. d. Amtrak must provide a minimum merchant marine medals and (2) Amtrak must provide for TSR of ten days notice to any carriers decorations to masters, officers, and compliance through the use of Northeast affected by ACSES expansion prior to its crew members of U.S. ships in Operating Rules Advisory Committee activation of the ACSES system to allow recognition of their service in areas of (NORAC) Form D or temporary speed the affected carriers sufficient danger during the operations by the restriction bulletin forms, advance opportunity to operate test trains within Armed Forces of the United States in speed signs, speed signs and resume the territory. The Regional World War II, Korea, Vietnam, and signs. Compliance will continue to be Administrator for Region 1 shall be Operation Desert Storm. monitored through efficiency tests. provided all associated safety and Annual Estimated Burden Hours: (3) Amtrak must enforce the current testing documentation to determine that 1200 hours. speed limit of 110 miles per hour on the appropriate preparations have been ADDRESSES: Send comments to the affected territory until ACSES is fully made to support expansions of ACSES. Office of Information and Regulatory implemented and all features of the Issued in Washington, DC, on March 11, Affairs, Office of Management and system, including positive enforcement 2004. Budget, 725 17th Street, NW., of TSRs, are fully functional. Allan Rutter, Washington, DC 20503, Attention (4) Amtrak must provide a minimum Administrator. MARAD Desk Officer. of ten days notice to any carriers Comments are invited on: Whether [FR Doc. 04–6035 Filed 3–16–04; 8:45 am] affected by ACSES expansion prior to its the proposed collection of information activation of the ACSES system to allow BILLING CODE 4910–06–P is necessary for the proper performance the affected carriers sufficient of the functions of the agency, including opportunity to operate test trains within DEPARTMENT OF TRANSPORTATION whether the information will have the territory. The Regional practical utility; the accuracy of the Administrator for Region 1 shall be Maritime Administration agency’s estimate of the burden of the provided all associated safety and proposed information collection; ways testing documentation to determine that Reports, Forms and Recordkeeping to enhance the quality, utility and appropriate preparations have been Requirements; Agency Information clarity of the information to be made to support expansions of ACSES. Collection Activity Under OMB Review collected; and ways to minimize the Accordingly, for the reasons stated in burden of the collection of information AGENCY: Maritime Administration, DOT. the preamble, the Final Order of on respondents, including the use of Particular Applicability published at 63 ACTION: Notice and request for automated collection techniques or FR 39343, July 22, 1998 (Order) is comments. other forms of information technology. amended as follows: A comment to OMB is best assured of 1. The authority for the Order SUMMARY: In compliance with the Paperwork Reduction Act of 1995 (44 having its full effect if OMB receives it continues to read as follows: 49 U.S.C. within 30 days of publication. 20103, 20107, 20501–20505 (1994); and U.S.C. 3501 seq.), this notice announces 49 CFR 1.49(f), (g), and (m). that the Information Collection Dated: March 12, 2004. 2. Paragraph 13 is added as follows: abstracted below has been forwarded to Joel C. Richard, 13. Amtrak Temporary Operating the Office of Management and Budget Secretary, Maritime Administration. Protocols (OMB) for review and approval. The [FR Doc. 04–5993 Filed 3–16–04; 8:45 am] Effective upon March 17, 2004, until nature of the information collection is BILLING CODE 4910–81–P no later than April 1, 2005: described as well as its expected a. The requirement that Amtrak burden. The Federal Register Notice achieve positive enforcement of with a 60-day comment period soliciting DEPARTMENT OF TRANSPORTATION temporary speed restrictions (TSRs) comments on the following collection of through temporary transponders is information was published on December National Highway Traffic Safety suspended on the mainline track 12, 2003. No comments were received. Administration between Mill River Interlocking (MP DATES: Comments must be submitted on Petition for Modification of a 73.6) and High Street Interlocking (MP or before April 16, 2004. 142.9) on the NEC-North End to allow Previously Approved Antitheft Device; FOR FURTHER INFORMATION CONTACT: General Motors Corporation Amtrak to achieve direct loading of TSR Patricia Ann Thomas, Maritime data from its computer-aided Administration, 400 7th Street SW., AGENCY: National Highway Traffic dispatching center to the on-board Washington, DC 20590. Telephone: Safety Administration (NHTSA), computers of all trains operating (202) 366–2646; FAX: (202) 493–2180, Department of Transportation (DOT). through this territory. or e-mail: ACTION: Grant of petition for b. Amtrak shall provide for TSR [email protected]. Copies modification of a previously approved compliance and roadway worker of this collection also can be obtained antitheft device. protection through the use of Northeast from that office. SUMMARY: Operating Rules Advisory Committee SUPPLEMENTARY INFORMATION: Maritime On June 16, 1986, this agency (NORAC) Form D or temporary speed Administration (MARAD). granted in full General Motors restriction bulletin forms, advance Title: Merchant Marine Medals and Corporation’s (GM) petition for speed signs, speed signs and resume Awards. exemption from the parts-marking signs. Compliance will continue to be OMB Control Number: 2133–0506. requirements of the vehicle theft monitored through efficiency tests. Type of Request: Extension of prevention standard for the Chevrolet c. Amtrak shall enforce the current currently approved collection. Corvette vehicle line. This notice grants speed limit of 110 miles per hour on the Affected Public: Masters, officers and in full GM’s petition for modification of affected territory until ACSES is fully crew members of U.S. ships. the previously approved antitheft device implemented and all features of the Forms: None. for that line. NHTSA is granting GM’s

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petition for modification because it has roof panel openings. The sounding of requirements, the agency has concluded determined, based on substantial the horn indicates unauthorized entry. that the absence of a visual or audio evidence, that the modified antitheft The VATS/PASS-Key part of the device alarm has not prevented these antitheft device described in GM’s petition to be provides a starter interrupt. The VATS/ devices from being effective protection placed on the vehicle line as standard PASS-Key consists of the ignition key, against theft. equipment is likely to be as effective in ignition lock cylinder and a VATS/ In order to ensure the reliability and reducing and deterring motor vehicle PASS-Key decoder module and is fully durability of the device, GM conducted theft as compliance with the parts- functional when the ignition is turned tests based on its own specified marking requirements. GM requested off and the key is removed from the standards. GM provided a detailed list confidential treatment for some of the ignition. Before the vehicle can be of tests conducted and believes that its information and attachments submitted operated, a key whose shank contains device is reliable and durable since the in support of its petition. In a letter the correct electrical resistance of the device complied with its specified dated February 11, 2004, the agency key must be inserted in the ignition and requirements for each test. The tests granted the petitioner’s request for recognized by the VATS/PASS-Key conducted included high and low confidential treatment of most aspects of decoder module. If a key with the temperature storage, thermal shock, its petition. incorrect electrical resistance is humidity frost, salt fog, flammability, DATES: The exemption granted by this inserted, the VATS/PASS-Key decoder altitude, drop, shock, random vibration, notice is effective beginning with model module will shut down for a period of dust, potential contaminants, connector year (MY) 2005. two to four minutes. Any attempt to retention/strain relief, terminal retention, connector insertion, crush, FOR FURTHER INFORMATION CONTACT: Ms. make further resistance comparisons Rosalind Proctor, Office of International during the module shut down period ice, immersion and tumbling. GM compared the MY 2005 device Policy, Fuel Economy and Consumer will only cause the timer to recycle to with devices which NHTSA has already Programs, NHTSA, 400 Seventh Street, zero and start again. In its petition for modification, GM determined to be as effective in SW., Washington, DC 20590. Ms. stated that for MY 2005, the Corvette reducing and deterring motor vehicle Proctor’s telephone number is (202) vehicle line will be upgraded to use its theft as would compliance with the 366–0846. Her fax number is (202) 493– new theft deterrent system. The parts-marking requirements. To 2290. modified antitheft device (MY 2005) substantiate its beliefs as to the SUPPLEMENTARY INFORMATION: On June will continue to provide protection effectiveness of the new device, GM 16, 1986, NHTSA published in the against unauthorized starting and compared the MY 2005 modified device Federal Register a notice granting a fueling of the vehicle engine. to its ‘‘PASS-Key’’-like systems. GM petition from GM for an exemption from Components of the modified antitheft indicated that the theft rates, as reported the parts-marking requirements of the device include an electronically coded by the Federal Bureau of Investigation’s vehicle theft prevention standard for the ignition key, body control module and National Crime Information Center, are Chevrolet Corvette vehicle line engine control module. GM stated that lower for GM models equipped with the beginning with the 1987 model year the antitheft device is designed to be ‘‘PASS-Key’’-like systems which have (See 51 FR 21823). On November 18, active at all times without direct exemptions from the parts-marking 2003, GM submitted a petition for intervention by the vehicle operator. No requirements of 49 CFR Part 541, than modification of its existing MY 1987 intentionally specific or discrete the theft rates for earlier models with antitheft device. GM’s submission is a security system action is necessary to similar appearance and construction complete petition, as required by 49 achieve protection. The system is fully which were parts-marked. Based on the CFR 543.9(d), in that it meets the functional (armed) immediately after the performance of the PASS-Key, PASS- general requirements contained in 49 vehicle has been turned off. Key II, and PASS-Key III systems on CFR 543.5 and the specific content GM stated that its modified antitheft other GM models, and the advanced requirements of 49 CFR 543.6. GM’s device does not provide any visible or technology utilized by the modification, petition provides a detailed description audible indication of unauthorized GM believes that the MY 2005 modified of the identity, design and location of entry by means of flashing vehicle lights antitheft device will be more effective in the components of the antitheft system or sounding of the horn. To substantiate deterring theft than the parts-marking proposed for installation beginning with its belief that an alarm system is not a requirements of 49 CFR Part 541. the 2005 model year. On January 26 and necessary feature to effectively deter the On the basis of this comparison, GM February 13, 2004, the agency contacted theft of a vehicle, GM compared the believes that the antitheft system for GM by telephone to obtain additional reduction in theft rates of Chevrolet model years 2005 and later will provide information on the proposed Corvettes using a passive theft deterrent essentially the same functions and modifications. system (‘‘VATS/PASS-Key’’) along with features as found on its MY 1987–2004 GM explained that the MY 1987 an audible/visible alarm system to the system and therefore, its modified antitheft device consisted of two basic reduction in theft rates for Chevrolet system will provide at least the same parts: An alarm system and an engine Camaro and Pontiac Firebird vehicles level of theft prevention as parts- interrupt system (identified as the equipped with a passive theft-deterrent marking. GM believes that the antitheft Vehicle Antitheft System (VATS)). The system (‘‘PASS-Key’’) without an alarm. system proposed for installation on its engine interrupt system’s name, GM finds that the lack of an alarm or MY 2005 Chevrolet Corvette line is ‘‘VATS’’, was changed to ‘‘PASS-Key’’ attention attracting device does not likely to be as effective in reducing beginning with the 1989 model year. compromise the theft deterrent thefts as compliance with the parts- The MY 1987 ‘‘VATS’’ is identical to the performance of a system such as the marking requirements of Part 541. ‘‘PASS-Key’’ system. The VATS/PASS- modified antitheft device system. Based The agency has evaluated GM’s MY Key is activated by removing the key on the declining theft rate experience of 2005 petition for modification of the from the ignition and locking the other vehicles equipped with devices exemption for the Chevrolet Corvette driver’s door. The alarm system is that do not have an audio or visual vehicle line from the parts-marking triggered by attempted unauthorized alarm for which NHTSA has already requirements of 49 CFR Part 541, and entry through the doors, rear hatch, or exempted from the parts-marking has decided to grant it. It has

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determined that the system is likely to hereby issued under Sections 9304 to DEPARTMENT OF THE TREASURY be as effective as parts-marking in 9308 of Title 31 of the United States preventing and deterring theft of these Code, to Clearwater Insurance Internal Revenue Service vehicles, and therefore qualifies for an Corporation, Stamford, CT. This new Open Meeting of the Area 3 Taxpayer exemption under 49 CFR part 543. The Certificate replaces the Certificate of Advocacy Panel (Including the States agency believes that the modified device Authority issued to the Company under of Florida, Georgia, Alabama, will continue to provide four of the five its former name. The underwriting types of performance listed in Mississippi, Louisiana, Arkansas and limitation of $48,712,000.00 established Tennessee) § 543.6(b)(3): Promoting activation; for the Company as of July 1, 2003, preventing defeat or circumventing of remains unchanged until June 30, 2004. AGENCY: Internal Revenue Service (IRS), the device by unauthorized persons; Treasury. preventing operation of the vehicle by Certificates of Authority expire on unauthorized entrants; and ensuring the June 30, each year, unless revoked prior ACTION: Notice. to that date. The Certificates are subject reliability and durability of the device. SUMMARY: An open meeting of the Area NHTSA suggests that if the to subsequent annual renewal as long as 3 Taxpayer Advocacy Panel will be manufacturer contemplates making any the Company remains qualified (31 CFR, conducted (via teleconference). The changes the effects of which might be Part 223). A list of qualified companies Taxpayer Advocacy Panel is soliciting characterized as de minimis, it should is published annually as of July 1, in the public comments, ideas, and consult the agency before preparing and Department Circular 570, which suggestions on improving customer submitting a petition to modify. outlines details as to underwriting service at the Internal Revenue Service. Authority: 49 U.S.C. 33106; delegation of limitations, areas in which licensed to DATES: The meeting will be held Friday, authority at 49 CFR 1.50. transact surety business and other April 16, 2004 from 11 a.m. EDT to Issued on: March 12, 2004. information. Federal bond-approving 12:30 p.m. EDT. Stephen R. Kratzke, officers should annotate their reference FOR FURTHER INFORMATION CONTACT: copies of the Treasury Circular 570, Associate Administrator for Rulemaking. Sallie Chavez at 1–888–912–1227, or [FR Doc. 04–6038 Filed 3–16–04; 8:45 am] 2003 Revision, at pages 39195 and 954–423–7979. 39228 to reflect this change. BILLING CODE 4910–59–P SUPPLEMENTARY INFORMATION: Notice is The Circular may be viewed and hereby given pursuant to section downloaded through the Internet at 10(a)(2) of the Federal Advisory DEPARTMENT OF THE TREASURY http://www.fms.treas.gov/c570. A hard Committee Act, 5 U.S.C. App. (1988) copy may be purchased from the Fiscal Service that an open meeting of the Area 3 Government Printing Office (GPO), Taxpayer Advocacy Panel will be held Surety Companies Acceptable on Subscription Service, Washington, DC, Friday, April 16, 2004, from 11 a.m. Federal Bonds: Name Change— telephone (202) 512–1800. When EDT to 12:30 p.m. EDT via a telephone Odyssey Reinsurance Corporation ordering the Circular from GPO, use the conference call. Individual comments following stock number: 769–004– will be limited to 5 minutes. If you AGENCY: Financial Management Service, 40671–1. would like to have the TAP consider a Fiscal Service, Department of the written statement, please call 1–888– Treasury. Questions concerning this notice may be directed to the U.S. Department of 912–1227 or 954–423–7979, or write ACTION: Notice. Sallie Chavez, TAP Office, 1000 South the Treasury, Financial Management Pine Island Rd., Suite 340, Plantation, SUMMARY: This is Supplement No. 9 to Service, Financial Accounting and FL 33324. Due to limited conference the Treasury Department Circular 570; Services Divsion, Surety Bond Branch, lines, notification of intent to participate 2003 Revision, published July 1, 2003, 3700 East-West Highway, Room 6F07, in the telephone conference call meeting at 68 FR 39186. Hyattsville, MD 20782. must be made with Sallie Chavez. Ms. FOR FURTHER INFORMATION CONTACT: Dated: March 5, 2004. Chavez can be reached at 1–888–912– Surety Bond Branch at (202) 874–6850. Jennifer Fitzmaurice, 1227 or 954–423–7979 or post SUPPLEMENTARY INFORMATION: Odyssey Acting Director, Financial Accounting and comments to the Web site: http:// Reinsurance Corporation, a Connecticut www.improveirs.org. corporation, has formally changed its Services Division, Financial Management Service. The agenda will include: Various IRS name to Clearwater Insurance Company, issues. effective December 4, 2003. The [FR Doc. 04–5929 Filed 3–16–04; 8:45 am] Dated: March 11, 2004. Company was last listed as an BILLING CODE 4810–35–M acceptable surety on Federal bonds at 68 Bernard Coston, FR 39228, July 1, 2003. Director, Taxpayer Advocacy Panel. A Certificate of Authority as an [FR Doc. 04–6025 Filed 3–16–04; 8:45 am] acceptable surety on Federal bonds, is BILLING CODE 4820–01–M

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Part II

Department of Agriculture Rural Housing Service

Notice of Availability of Funds; Multi- Family Housing, Single Family Housing; Notice

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DEPARTMENT OF AGRICULTURE Discussion of Notice Upon NOFA closing, the Administrator Part 1940, subpart L of 7 CFR contains will evaluate the responses and Rural Housing Service the ‘‘Methodology and Formulas for determine proper distribution of funds between loans and grants. Notice of Availability of Funds; Multi- Allocation of Loan and Grant Program Funds.’’ To apply for assistance under A. Section 514 Farm LH Loans. Family Housing, Single Family 1. These loans are funded in these programs or for more information, Housing accordance with 7 CFR 1940.579(a). contact the Rural Development Office AGENCY: Rural Housing Service, USDA. for your area. FY 2004 Appropriation—$42,574,374 ACTION: Notice. Available for Off-Farm Loans—$35,774,000 Multi-Family Housing (MFH) Available for On-Farm Loans—$2,000,000 National Office Reserve—$4,800,374 SUMMARY: The Rural Housing Service I. General (RHS) announces the availability of 2. Off-farm loan funds will be made A. This provides guidance on MFH housing funds for fiscal year 2004 (FY available under a NOFA being funding for the Rural Rental Housing 2004). This action is taken to comply published in this Federal Register. program (RRH) for FY 2004 (it does not with 42 U.S.C. 1490p, which requires Additional guidance is provided in the include carryover funds). Allocation that RHS publish in the Federal NOFA. Register notice of the availability of any computations have been performed in B. Section 516 Farm LH Grants. housing assistance. accordance with 7 CFR 1940.575 and 1. Grants are funded in accordance 1940.578. For FY 2004, State Directors, EFFECTIVE DATE: with 7 CFR 1940.579(b). Unobligated March 17, 2004. under the Rural Housing Assistance FOR FURTHER INFORMATION CONTACT: For prior year balances and cancellations Grants (RHAG), will have the flexibility will be added to the amount shown. information regarding this notice to transfer their initial allocations of contact Lou Paulson, Management budget authority between the Single FY 2004 Appropriation—$17,900,759 Analyst, Single Family Housing Direct Available for LH Grants for Off-Farm— Family Housing (SFH) Section 504 $13,400,759 Loan Division, telephone (202) 720– Rural Housing Grants and Section 533 1478, for single family housing (SFH) Available for Technical Assistance Grants— Housing Preservation Grant (HPG) $1,500,000 issues and Tammy S. Daniels, Loan programs. National Office Reserve—$3,000,000 Specialist, Multi-Family Housing B. MFH loan and grant levels for FY 2. Labor Housing grant funds for Off- Processing Division, telephone (202) 2004 are as follows: Farm will be made available under a 720–0021, for multi-family housing MFH Loan Programs Credit Sales— NOFA being published in this Federal (MFH) issues, U.S. Department of *$1,491,149 Register. Additional guidance is Agriculture, 1400 Independence Ave. Section 514 Farm Labor Housing (LH) provided in the NOFA. SW., Washington, DC, 20250. (The loans—*$42,574,374 C. Labor Housing Rental Assistance telephone numbers listed are not toll Section 515 Rural Rental Housing (RRH) (RA) will be held in the National Office free numbers). For information on loans—*$115,857,375 for use with LH loan and grant applying for assistance, visit our Section 521 Rental Assistance (RA) and 502(c)(5)(C) Advance—*$574,689,210 applications. RA is only available with Internet Web site at http:// a LH loan of at least 5 percent of the offices.usda.gov and select your State or Section 516 LH grants—*$17,900,759 Sections 525 Technical and Supervisory total development cost. Projects without check the blue pages in your local Assistance grants (TSA) and 509 Housing a LH loan cannot receive RA. telephone directory under ‘‘Rural Application Packaging grants—$1,024,754 Development’’ for the office serving (HAPG) (Shared between single and multi- IV. Section 515 RRH Loan Funds your area. Near the end of this Notice family housing)—(includes carryover) FY 2004 Section 515 Rural Rental Housing is a listing of Rural Development State Section 533 Housing Preservation grants allocation (Total)—$115,857,375 Directors, State Office addresses, and (HPG)—*$8,882,000 New Construction funds and set-asides— phone numbers. Section 538 Guaranteed Rural Rental $30,057,375 Housing program—*$99,410,000 SUPPLEMENTARY INFORMATION: New construction loans—$7,837,344 Processing Worker Housing Grants— Set-aside for nonprofits—$10,427,163 Programs Affected $4,970,500 Set-aside for underserved counties and * Does not include disaster or regular colonias—$5,792,868 The following programs are subject to program carryover the provisions of Executive Order 12372 Earmark for EZ, EC, or REAP Zones— II. Funds Not Allocated to States $5,000,000 that requires intergovernmental State RA designated reserve—$1,000,000 consultation with State and local A. Credit Sales Authority. For FY Rehab and repair funds and equity— officials. These programs or activities 2004, $1,491,149 will be set aside for $60,800,000 are listed in the Catalog of Federal credit sales to program and nonprogram Rehab and repair loans—$55,800,000 Domestic Assistance under Nos. buyers. Credit sale funding will not be Designated equity loan reserve— $5,000,000 10.405 Farm Labor Housing (LH) Loans and allocated by State. General Reserve—$25,000,000 Grants B. Section 538 Guaranteed Rural 10.410 Very Low to Moderate Income Rental Housing Program. Guaranteed A. New construction loan funds. New Housing Loans loan funds will be made available under construction loan funds will be made 10.411 Rural Housing Site Loans and Self- a Notice of Funding Availability available using a national NOFA being Help Housing Land Development Loans (NOFA) being published in this Federal published in this Federal Register. 10.415 Rural Rental Housing Loans Register. Additional guidance is Additional guidance is provided in the 10.417 Very Low Income Housing Repair NOFA. Loans and Grants provided in the NOFA. 10.420 Rural Self-Help Housing Technical B. National Office New Construction III. Farm Labor Housing (LH) Loans and Set-asides. The following legislatively Assistance Grants 10.427 Rural Rental Assistance Payments mandated set-asides of funds are part of 10.433 Rural Housing Preservation Grants The Administrator has the authority the National office set-aside: 10.442 Housing Application Packaging to transfer the allocation of budget 1. Nonprofit Set-aside. An amount of Grants authority between the two programs. $10,427,163 has been set aside for

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nonprofit applicants. All Nonprofit loan hardships and emergencies, RH Section 525 Supervisory and Technical proposals must be located in designated cooperatives or group homes, or RRH Assistance and Section 509 Housing places as defined in 7 CFR 1944–E. preservation. Application 2. Underserved Counties and Colonias Packaging Grants Total Available for single Set-Aside. An amount of $5,792,868 has V. Section 533 Housing Preservation And multi-family—**$2,000,000 Grants (HPG) Natural disaster funds (Section 502 loans— been set aside for loan requests to **$2,353,166 * develop units in the underserved 100 Total Available—$8,882,000 Natural disaster funds (Section 504 loans)— most needy counties or colonias as Less General Reserve—$888,200 **$14,966,367 defined in section 509(f) of the Housing Less Earmark for EZ, EC or REAP Zones— Natural disaster funds (Section 504 grants)— Act of 1949 as amended. Priority will be $894,690 **$3,670,079 given to proposals to develop units in Total Available for Distribution—$7,099,110 *Includes funds for EZ/EC and REAP colonias or tribal lands. Amount available for allocation. See communities until June 30, 2004. 3. EZ, EC or REAP Zone Earmark. An end of this Notice for HPG State ** Carryover funds are included in the amount of $5,000,000 has been allocations. Fund availability will be balance. earmarked for loan requests to develop announced in a NOFA being published C. SFH Funding Not Allocated to units in EZ or EC communities or REAP in the Federal Register. States. The following funding is not Zones until June 30, 2004. The amount of $894,690 is earmarked allocated to States by formula. Funds C. Rental Assistance (RA). Limited for EZ, EC or REAP Zones until June 30, are made available to each state on a new construction RA will be held in the 2004. case-by-case basis. National office for use with Section 515 1. Credit sale authority. Credit sale Single Family Housing (SFH) Rural Rental Housing loans. funds in the amount of $10,000,000 are D. Designated Reserves for State RA. I. General. All SFH programs are available only for nonprogram sales of An amount of $1 million of Section 515 administered through field offices. For Real Estate Owned (REO) property. loan funds has been set aside for more information or to make 2. Section 509 Compensation for matching with projects in which an application, please contact the Rural Construction Defects. $282,177 is active State sponsored RA program is Development office servicing your area. available for compensation for available. The State RA program must To locate these offices, contact the construction defects. be comparable to the RHS RA program. appropriate State Office from the 3. Section 523 Mutual and Self-Help E. Repair and Rehabilitation Loans. attached State Office listing, visit our Technical Assistance Grants. Tenant health and safety continues to be web site at http://offices.usda.gov or $42,365,092 is available for Section 523 the top priority. Repair and check the blue pages in your local Mutual and Self-Help Technical rehabilitation funds must be first telephone directory under ‘‘Rural Assistance Grants. Of these funds, targeted to RRH facilities that have Development’’ for the office serving $994,100 is earmarked for EZ, EC or physical conditions that affect the your area. REAP Zones until June 30, 2004. A health and safety of tenants and A. This notice provides SFH technical review and analysis must be subsequently made available to facilities allocations for FY 2004. Allocation completed by the Technical and that have deferred maintenance. All computations have been made in Management Assistance (T&MA) funds will be held in the National office accordance with 7 CFR 1940.563 contractor on all predevelopment, new, and will be distributed based upon through 1940.568. Information on basic and existing (refunding) grant indicated rehabilitation needs in the formula criteria, data source and weight, applications. MFH survey conducted in November administrative allocation, pooling of 4. Section 523 Mutual and Self-Help 2003. funds, and availability of the allocation Site Loans and Section 524 RH Site F. Designated Reserve for Equity are located on a chart at the end of this Loans. $2,420,714 and $5,045,000 are Loans. An amount of $5 million has notice. available for Section 523 Mutual Self- been designated for the equity loan B. The SFH levels authorized for FY Help and Section 524 RH Site loans, preservation incentive described in 7 2004 are as follows: respectively. CFR 1965–E. The $5 million will be Section 502 Guaranteed Rural Housing (RH) 5. Section 306C WWD Grants to further divided into $4 million for loans Individuals in Colonias. The objective of equity loan requests currently on the Nonsubsidized Guarantees—Purchase— the Section 306C WWD individual grant pending funding list and $1 million to **$2,531,712,184 program is to facilitate the use of facilitate the transfer of properties from Nonsubsidized Guarantees—Refinance— community water or waste disposal for-profit owners to nonprofit **$ 236,646,482 systems for the residents of the colonias corporations and public bodies. Funds Section 502 Direct RH loans along the U.S.-Mexico border. for such transfers would be authorized Very low-income subsidized loans— The total amount available to Arizona, *$594,614,642 only for for-profit owners who are Low-income subsidized loans— California, New Mexico, and Texas will currently on the pending funding list *$756,782,272 be $1,297,122 for FY 2004. This amount who agree to transfer to nonprofit Credit sales (Nonprogram)—$10,000,000 includes the carryover unobligated corporations or public bodies rather Section 504 housing repair loans— balance of $297,122 and the transferred than to remain on the pending list. If *$34,797,119 amount of $1 million from the Rural insufficient transfer requests are Section 504 housing repair grants—*/ Utilities Service (RUS) to RHS for generated to utilize the full $1 million **$30,275,770 processing individual grant set aside for nonprofit and public body Section 509 compensation for construction applications. transfers, the balance will revert to the defects—**$282,177 6. Section 525 Technical and Section 523 mutual and self-help housing Supervisory Assistance (TSA) and existing pending equity loan funding grants—*/**$42,365,092 list. Section 523 Self-Help Site Loans— Section 509 Housing Application G. General Reserve. There is one $2,420,714 Packaging Grants (HAPG). $2,000,000 is general reserve fund of $25,000,000. Section 524 RH site loans—$5,045,000 available for the TSA and HAPG Some examples of immediate allowable Section 306C Water and waste disposal programs. Funds are available on a uses include, but are not limited to, grants—**$1,297,122 limited basis for TSA grants. In

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accordance with the provisions of 7 CFR Basic formula ‘‘Administrative c. Homeownership Partnership. $130 1944.525, funding will be targeted Allocation—$0 million dollars has been set aside for nationally and then on an individual a. Refinance Funds. Refinance loan Homeownership Partnerships. These basis to States/areas with the highest funds will be distributed from the funds will be used to expand existing degree of substandard housing and National Office on a case-by-case basis. partnerships and create new persons in poverty eligible to receive b. National office general reserve. The partnerships, such as the following: Agency housing assistance. States Administrator may restrict access to this (i) Department of Treasury, should submit proposals from potential reserve for States not meeting their goals Community Development Financial applicants to the National Office for in special outreach areas. Institutions (CDFI). Funds will be review and concurrence prior to B. Section 502 Direct RH loans. available to fund leveraged loans made authorizing an application. 1. Amount Available for Allocation. in partnership with the Department of Requests should be submitted to the Treasury CDFI participants. National Office for HAPG based on Total Available—$1,351,396,914 Less Required Set Aside for (ii) Partnership initiatives established projected usage of these funds for the Underserved Counties and Colonias— to carry out the objectives of the rural quarter or as needed. HAPG requests $67,569,850 home loan partnership (RHLP). should be submitted by e-mail to Gloria EZ, EC and REAP Earmark—$48,793,635 d. Designated Reserve for Self-Help. Denson, Senior Loan Specialist, SFH Less General Reserve—$168,999,915 $150 million dollars has been set aside Direct Loan Division, (202) 720–1487. Administrator’s Reserve—$9,999,915 to assist participating Self-Help Reserve funds will be held at the Hardships & Homelessness—$2,000,000 applicants. The National office will National Office and requests from Rural Housing Demonstration Program— contribute 100 percent from the eligible States will be considered on a $2,000,000 National office reserve. States are not first-come, first-served basis. Additional Homeownership Partnership—$130,000,000 required to contribute from their Program funds for the sale of REO guidance is provided in the NOFA. properties—$25,000,000 allocated Section 502 RH funds. 7. Natural Disaster Funds. Funds are Less Designated Reserve for Self-Help— e. Underserved Counties and available until exhausted to those States $150,000,000 Colonias. An amount of $67,569,850 has with active Presidential Declarations. Basic Formula Administrative Allocation— been set aside for the 100 underserved 8. Deferred Mortgage Payment $916,033,515 counties and colonias. Demonstration. There is no FY 2004 2. Reserves. f. Empowerment Zone (EZ) and funding provided for deferred mortgage a. State Office Reserve. State Directors Enterprise Community (EC) or Rural authority or loans for deferred mortgage must maintain an adequate reserve to Economic Area Partnership (REAP) assumptions. earmark. An amount of $48,793,635 has II. State allocations. fund the following applications: (i) Hardship and homeless applicants been earmarked until June 30, 2004, for A. Section 502 Nonsubsidized loans in EZ, EC or REAP Zones. Guaranteed RH (GRH) Loans. including the direct Section 502 loan and Section 504 loan and grant g. State Office Pooling. If pooling is 1. Purchase—Amount Available for conducted within a State, it must not Allocation. programs. (ii) Rural Home Loan Partnerships take place within the first 30 calendar Total Available—Purchase—$2,531,712,184 (RHLP) and Community Development days of the first, second, or third Less National Office General Reserve— quarter. (There are no restrictions on $907,520,729 Financial Institutions (CDFI) loans. (iii) Subsequent loans for essential pooling in the fourth quarter.) Less Special Outreach Area Reserve— h. Suballocation by the State Director. $388,937,455 improvements or repairs and transfers Basic Formula—Administrative with assumptions. The State Director may suballocate to Allocation—$1,235,254,000 (iv) States will leverage with funding each area office using the methodology and formulas required by 7 CFR part a. National Office General Reserve. from other sources. (v) Areas targeted by the State 1940, subpart L. If suballocated to the The Administrator may restrict access to area level, the Rural Development this reserve for States not meeting their according to its strategic plan. b. National Office Reserves. Manager will make funds available on a goals in special outreach areas. first-come, first-served basis to all b. Special Outreach Areas. FY 2004 (i) General Reserve. The National offices at the field or area level. No field GRH funding is allocated to States in office has a general reserve of office will have its access to funds two funding streams. Seventy percent of $168,999,915 million. Of this amount, restricted without the prior written GRH funds may be used in any eligible the Administrator’s reserve is approval of the Administrator. area. Thirty percent of GRH funds are to $9,999,915 million. One of the purposes C. Section 504 Housing Loans and be used in special outreach areas. of the Administrator’s reserve will be for Grants. Section 504 grant funds are Special outreach areas for the GRH loans in Indian Country. Indian Country included in the Rural Housing program are defined as those areas is defined as land inside the boundaries Assistance Grant program (RHAG) in the within a State that are not located of Indian reservations, communities FY 2004 appropriation. within a metropolitan statistical area made up mainly of Native Americans, 1. Amount available for allocation. (MSA). Indian trust and restricted land, and c. National Office Special Area tribal allotted lands. Section 504 Loans Outreach Reserve. A special outreach (ii) Hardship and Homelessness Total Available—$34,797,119 area reserve fund has been established Reserve. $2 million has been set aside Less 5% for 100 Underserved Counties and at the National office. Funds from this for hardships and homeless. Colonias—$1,739,856 EZ, EC or REAP Zone Earmark—$1,400,000 reserve may only be used in special (iii) Rural Housing Demonstration Less General Reserve—$1,500,113 outreach areas. Program. $2 million dollars has been set Basic Formula—Administrative Allocation— 2. Refinance—Amount available for aside for innovative demonstration $30,157,150 allocation. initiatives. Section 504 Grants Total Available—Refinance—$236,646,482 (iv) Program Credit Sales. $25 million Total Available—$30,275,770 Less National office general reserve— dollars has been set aside for program Less 5% for 100 Underserved Counties and $236,646,482 sales of REO property. Colonias—$1,513,789

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Less EZ, EC or REAP Earmark—$894,690 and $1,513,789 have been set aside for REAPs for the Section 504 loan and Less General Reserve—$1,599,982 the 100 underserved counties and grant programs, respectively. Basic Formula-Administrative Allocation— colonias until June 30, 2004, for the d. General Reserve. $1.5 million for $26,267,309 Section 504 loan and grant programs, Section 504 loan hardships and $1.6 2. Reserves and Set-asides. respectively. million for Section 504 grant extreme a. State Office Reserve. State Directors hardships have been set-aside in the c. Empowerment Zone (EZ) and must maintain an adequate reserve to general reserve. For Section 504 grants, Enterprise Community (EC) or Rural handle all anticipated hardship an extreme hardship case is one applicants based upon historical data Economic Area Partnership (REAP) requiring a significant priority in and projected demand. Earmark (Loan Funds Only). $1,400,000 funding, ahead of other requests, due to b. Underserved Counties and and $894,690 have been earmarked severe health or safety hazards, or Colonias. Approximately $1,739,856 through June 30, 2004, for EZ, EC or physical needs of the applicant.

INFORMATION ON BASIC FORMULA CRITERIA, DATA SOURCE AND WEIGHT, ADMINISTRATIVE ALLOCATION, POOLING OF FUNDS, AND AVAILABILITY OF THE ALLOCATION

Section 502 nonsubsidized Section 502 direct RH Section 504 loans and Number Description guaranteed RH loans loans grants

1 ...... Basic formula criteria, data source, and See 7 CFR 1940.563(b) ..... See 7 CFR 1940.565(b) ..... See 7 CFR 1940.566(b) weight. and 1940.567(b). 2 ...... Administrative Allocation: Western Pacific Area ...... $1,000,000 ...... $1,000,000 ...... $1,000,000 loan. $500,000 grant. 3 ...... Pooling of funds: a. Mid-year pooling ...... If necessary ...... If necessary ...... If necessary. b. Year-end pooling ...... August 13, 2004 ...... August 13, 2004 ...... August 13, 2004. c. Underserved counties & colonias ...... N/A ...... June 30, 2004 ...... June 30, 2004. d. EZ, EC or REAP ...... N/A ...... June 30, 2004 ...... June 30, 2004. e. Credit sales ...... N/A ...... June 30, 2004 ...... N/A 4 ...... Availability of the allocation:. a. first quarter ...... 40 percent ...... 50 percent ...... 50 percent. b. second quarter ...... 70 percent ...... 70 percent ...... 70 percent. c. third quarter ...... 90 percent ...... 90 percent ...... 90 percent. d. fourth quarter ...... 100 percent ...... 100 percent ...... 100 percent.

1. Data derived from the 2000 U.S. office reserve and made available listed until the National office year-end Census is available on the web at http:/ administratively. The Administrator pooling date. /199.159.140.1/census. reserves the right to redistribute funds Dated: March 9, 2004. 2. Due to the absence of Census data. based upon program performance. 3. All dates are tentative and are for Arthur A. Garcia, the close of business (COB). Pooled 4. Funds will be distributed Administrator, Rural Housing Service. funds will be placed in the National cumulatively through each quarter BILLING CODE 3410–XV–P

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Dated: March 9, 2004. Arthur A. Garcia, Administrator, Rural Housing Service. [FR Doc. 04–5959 Filed 3–16–04; 8:45 am] BILLING CODE 3410–XV–C

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Part III

Securities Exchange Commission 17 CFR Parts 239, 249, 270 and 274 Disclosure Regarding Portfolio Managers of Registered Management Investment Companies; Proposed Rule

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SECURITIES AND EXCHANGE FOR FURTHER INFORMATION CONTACT: externally managed by an investment COMMISSION Sanjay Lamba, Attorney, or Paul G. adviser, to which they pay an advisory Cellupica, Assistant Director, Office of fee from fund assets. The investment 17 CFR Parts 239, 249, 270 and 274 Disclosure Regulation, Division of adviser in turn employs and [Release Nos. 33–8396; 34–49398; IC– Investment Management, (202) 942– compensates the individuals who act as 26383; File No. S7–12–04] 0721, at the Securities and Exchange portfolio managers for the fund. Our Commission, 450 Fifth Street, NW., rules require funds to disclose in their RIN 3235–AJ16 Washington, DC 20549–0506. prospectuses certain information concerning their portfolio managers. Disclosure Regarding Portfolio SUPPLEMENTARY INFORMATION: The Fund prospectuses are required to Managers of Registered Management Securities and Exchange Commission include the name, title, length of Investment Companies (‘‘Commission’’) is proposing for comment amendments to Form N–1A,1 service, and business experience of the AGENCY: Securities and Exchange Form N–2,2 and Form N–3,3 registration individuals who are primarily Commission. forms used by management investment responsible for the day-to-day 6 ACTION: Proposed rule. companies to register under the management of the fund. If a Investment Company Act of 1940 committee, team, or other group is SUMMARY: The Securities and Exchange (‘‘Investment Company Act’’) and to jointly and primarily responsible for Commission is proposing amendments offer their securities under the management of the fund, the fund must to its forms under the Securities Act of Securities Act of 1933 (‘‘Securities provide disclosure to the effect that the 1933, the Securities Exchange Act of Act’’); and amendments to Form N– fund’s investments are managed by that 1934, and the Investment Company Act CSR 4 under the Investment Company group, but need not provide the names 7 of 1940 to improve the disclosure Act and the Securities Exchange Act of of the members of the group. provided by registered management 1934 (‘‘Exchange Act’’), the form used Recently, several areas of concern investment companies regarding their by registered management investment have been identified with respect to the portfolio managers. The proposals companies to file certified shareholder disclosure that funds provide about would extend the existing requirement reports with the Commission. their portfolio managers. First, concerns that a registered management have been raised regarding the lack of investment company provide basic Table of Contents disclosure about the individual information in its prospectus regarding I. Background members of portfolio management its portfolio managers to include the II. Discussion teams.8 Some have argued that members of management teams. The A. Identification of Portfolio Management disclosure that a fund uses a team Team Members proposals would also require a management approach, without B. Disclosure Regarding Other Accounts identification of team members, can be registered management investment Managed, Potential Conflicts of Interest, company to disclose additional and Policies and Procedures to Address a convenient way to avoid disclosing information about its portfolio Conflicts who runs the fund and how long or managers, including other accounts they C. Disclosure of Portfolio Manager briefly they have been in place. Further, manage, compensation structure, and Compensation Structure the use of a management team ownership of securities in accounts they D. Disclosure of Securities Ownership of potentially permits a fund to change Portfolio Managers manage. managers frequently, without appearing E. Removal of Exclusion for Index Funds prone to manager turnover. DATES: Comments should be submitted F. Disclosure of Availability of Information Second, concerns have been raised on or before May 21, 2004. G. Amendment of Form N–CSR about potential conflicts of interest H. Compliance Date ADDRESSES: Comments may be between the interests of shareholders in submitted electronically or by paper. III. General Request for Comments IV. Paperwork Reduction Act a fund that a portfolio manager oversees, Electronic comments may be submitted V. Cost/Benefit Analysis and the interests of other clients and by: (1) electronic form on the SEC Web VI. Consideration of Burden on Competition; investment vehicles, such as hedge site (http://www.sec.gov) or (2) e-mail to Promotion of Efficiency, Compeitition, funds and pension funds, that a [email protected]. Mail paper and Captial Formation portfolio manager may also oversee.9 comments in triplicate to Jonathan G. VII. Initial Regulatory Flexibility Anaylsis For example, it has been argued that Katz, Secretary, Securities and Exchange VIII. Consideration of Impact on the Commission, 450 Fifth Street, NW., Economy IX. Statutory Authority is the issuer. A closed-end company is any management company other than an open-end Washington, DC 20549–0609. All Text of Proposed Rule and Form submissions should refer to File No. S7– company. See Section 5 of the Investment Company Amendments Act [15 U.S.C. 80a–5]. Open-end companies 12–04; this file number should be generally offer and sell new shares to the public on included on the subject line if e-mail is I. Background a continuous basis. Closed-end companies generally used. To help us process and review Registered management investment engage in traditional underwritten offerings of a your comments more efficiently, please 5 fixed number of shares and, in most cases, do not companies (‘‘funds’’) typically are offer their shares to the public on a continuous use only one method. The Commission basis. will post all comments on the 1 17 CFR 239.15A and 274.11A. 6 Item 5(a)(2) of Form N–1A; Item 9.1.c of Form Commission’s Internet Web site (http:// 2 17 CFR 239.14 and 274.11a–1. N–2. www.sec.gov). Comments are also 3 17 CFR 239.17a and 274.11b. 7 Instruction 2 to Item 5(a)(2) of Form N–1A; available for public inspection and 4 17 CFR 249.331 and 274.128. Instruction 2 to Item 9.1.c. of Form N–2. 5 Management investment companies typically 8 See, e.g., Ian McDonald, Ghost Rider: Who’s copying in the Commission’s Public issue shares representing an undivided Running Your Fund, TheStreet.com, Jan. 28, 2002; Reference Room, 450 Fifth Street, NW., proportionate interest in a changing pool of Tom Lauricella, Should Mutual-Fund Managers Be Washington, DC 20549. We do not edit securities, and include open-end and closed-end Named?—Firms List Teams, Saying Move Keeps personal identifying information from companies. See T. Lemke, G. Lins, A. Smith III, Shareholder Costs Down; Others Utilize Web Sites, Regulation of Investment Companies, Vol. I, ch. 4, Filings The Wall Street Journal, May 17, 2002, at C1. submissions. You should submit only § 4.04, at 4–5 (2002). An open-end company is a 9 See, e.g., Stephen Schurr, Two Masters Are One information that you wish to make management company that is offering for sale or has Too Many for Fund Firms, TheStreet.com, Nov. 26, available publicly. outstanding any redeemable securities of which it 2003.

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because hedge fund performance fees strong signal of his or her alignment These proposed amendments are typically are much higher than mutual with the interest of fund shareholders.13 intended to provide greater fund fees, a portfolio manager who They argue, for example, that portfolio transparency regarding portfolio manages a mutual fund and a hedge managers may have a greater incentive managers, their incentives in managing fund may have an incentive to give to keep management fees low and to a fund, and the potential conflicts of preferential treatment to hedge fund consider the tax consequences of their interest that may arise when they or the investors in allocating new investment trading activity if they themselves are advisers that employ them also manage opportunities. Other conflict of interest invested in the fund they manage. These other investment vehicles.15 issues raised by managing mutual fund advocates also claim that disclosure of II. Discussion and hedge fund businesses may include fund ownership could provide investors trading-execution priorities, and the with insight into the level of confidence A. Identification of Portfolio potential for the hedge fund to take that a manager has in the investment Management Team Members advantage of material inside information strategy of the fund. We are proposing amendments to regarding the mutual fund’s portfolio The Commission is mindful of these Forms N–1A and N–2, the registration holdings. Concerns regarding these concerns, and we have concluded that forms for mutual funds and closed-end types of conflicts of interest were noted increased transparency of information funds, that would require those funds to in the Commission’s recent staff report about fund portfolio managers, 10 identify in their prospectuses each on the hedge fund industry. including their identity, incentives, and member of a committee, team, or other Third, some have suggested that potential conflicts of interest, may assist group of persons associated with the information regarding the compensation investors in evaluating fund fund’s investment adviser that is jointly of portfolio managers should be management and making investment and primarily responsible for the day-to- disclosed.11 Advocates of this decisions. In order to address these day management of the fund’s disclosure argue that a portfolio concerns, we are proposing portfolio.16 Currently, if a committee, manager’s compensation structure can amendments that would require team, or other group is jointly and influence how the manager runs the improved disclosure regarding portfolio primarily responsible for management fund. For example, a portfolio manager’s managers. Our proposals would: of a fund, Forms N–1A and N–2 require bonuses may be linked to the amount of • Require a fund to identify in its the fund to provide disclosure that the fund assets under management, which prospectus each member of a fund’s investments are managed by a may provide an incentive for the committee, team, or other group of group, but the fund need not provide manager to focus more on bringing persons that is jointly and primarily the names of the members of the assets into the fund than on meeting the responsible for the day-to-day group.17 The proposed amendments fund’s investment objective. Concerns management of the fund’s portfolio; would require funds to state the name, have also been raised regarding • Require a fund to provide title, length of service, and business compensation bonuses based on short- information in its Statement of experience of each member of a term performance, which may create 14 Additional Information (‘‘SAI’’) portfolio management team. The incentives for a fund manager to take regarding other accounts managed by proposals would also require the fund to greater risks than usual in an effort to any of its portfolio managers, including provide a brief description of each meet short-term performance goals. a description of conflicts of interest that member’s role on the management team Finally, some have argued that it may arise in connection with 18 would be useful to fund investors to (e.g., lead member). We believe that simultaneously managing the fund and this enhanced disclosure regarding require disclosure of the securities the other accounts; holdings of portfolio managers, similar • management team members could help Require a fund to disclose in its SAI investors better evaluate the identity, to the disclosure currently required the structure of, and the method used to regarding directors’ holdings of fund background, and experience of fund determine, the compensation of each management in cases where the fund is shares.12 They have suggested that portfolio manager; managed using a team approach. disclosure of a portfolio manager’s • Require a fund to disclose in its SAI We are also proposing to amend Form holdings in a fund would provide a each portfolio manager’s ownership of N–3, the registration form for insurance securities in the fund and other company managed separate accounts 10 Implications of the Growth of Hedge Funds, accounts, including investment Staff Report to the U.S. Securities and Exchange Commission, at 83–85 (Sept. 2003). companies, managed by the portfolio 15 A fund is currently required to provide 11 See, e.g., Statement of John C. Bogle, Oversight manager, the fund’s investment adviser, portfolio manager disclosure regardless of whether Hearing on the Mutual Fund and Investment or any person controlling, controlled by, the portfolio manager is employed by the Advisory Industry Before the U.S. Senate or under common control with an investment adviser or a sub-adviser. This would continue under the proposed rules. See Section Governmental Affairs Committee, Subcommittee on investment adviser or principal Financial Management, 108th Cong., 1st. Sess. 2(a)(20)(B) of the Investment Company Act [15 (Nov. 3, 2003); Jason Zweig, The Great Fund Rip- underwriter of the fund; and U.S.C. 80a–2(a)(20)(B)] (‘‘investment adviser’’ Off, Money, Oct. 1, 2003, at 51; Jason Burton, Ten • Require a closed-end fund to includes any person who provides investment Things Mutual Funds Aren’t Telling You, CBS provide disclosure regarding its advice to an investment company under a contract with an investment adviser to the company). Marketwatch.com, Aug. 1, 2003. portfolio managers in its reports on 12 See, e.g., Michael Maiello, Is Your Fund 16 Proposed Item 5(a)(2) and Instruction 2 to Item Manager Any Good? What the Ads Won’t Tell You, Form N–CSR. 5(a)(2) of Form N–1A; proposed Item 9.1.c and FORBES, Feb. 2, 2004, at 100; Karen Damato, With Instruction to Item 9.1.c of Form N–2. Mutual Funds, Is the Investor No. 1—A Few 13 See, e.g., Martha Graybow, Fund Watchers 17 Instruction 2 to Item 5(a)(2) of Form N–1A; Touchstones Can Assist In Judging Whose Interests Want Managers to ‘Eat Own Cooking’, Reuters News Instruction 2 to Item 9.1.c of Form N–2. Carry The Most Weight With Managers, The Wall Service, July 18, 2003. 18 Proposed Instruction 2 to Item 5(a)(2) of Form Street Journal, Sept. 5, 2003, at C1. See also 14 The SAI is part of a fund’s registration N–1A; proposed Instruction to Item 9.1.c of Form Investment Company Act Release No. 24816 (Jan. 2, statement and contains information about a fund in N–2. The proposed amendments would also delete 2001) [66 FR 3734 (Jan. 16, 2001)]; Item 22(b)(5) of addition to that contained in the prospectus. The current Instructions 3 and 4 to Item 5(a)(2) of Form Schedule 14A; Item 12(b)(4) of Form N–1A; Item SAI is required to be delivered to investors upon N–1A, which provide additional guidance as to the 18.7 of Form N–2; Item 20(f) of Form N–3 (requiring request and is available on the Commission’s disclosure obligations of funds for which day-to-day disclosure of dollar range of each director’s Electronic Data Gathering, Analysis, and Retrieval management responsibilities are shared between a ownership in each fund that he or she oversees). System. portfolio management team and an individual.

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that issue variable annuity contracts, to portfolio manager may be subject as a strategy of the fund and the investment require disclosure regarding portfolio result of managing the fund and other strategy of the other accounts managed managers. The required disclosure portfolios, such as hedge funds and by the portfolio manager and conflicts would be similar to the disclosure that other registered investment companies. in allocation of investment would be required by Forms N–1A and If a committee, team, or other group that opportunities between the fund and N–2, including disclosure regarding the includes the portfolio manager is jointly such other accounts. In addition, the members of portfolio management and primarily responsible for the day-to- fund would be required to include a teams.19 Currently, Form N–3 does not day management of an account, the fund description of the policies and require disclosure about portfolio would be required to include that procedures used by the fund or the managers. account in responding to the proposed fund’s adviser to address any such We request comment generally on the disclosure requirement.21 conflicts. In this regard, we note that we proposed disclosure requirements We are proposing to require that this recently adopted new rules that require regarding members of portfolio disclosure, and the other new disclosure investment advisers to implement management teams and the proposed that we are proposing with respect to policies and procedures that address amendments to Form N–3 and portfolio managers, be located in the conflicts arising from management of specifically on the following issues: SAI. If the information were included in multiple funds and accounts, such as • Should we require identification the prospectus, it might tend to obscure the allocation of investment and disclosure with respect to all of the other, more basic information that is key opportunities and the allocation of members of a portfolio management to an investment decision, such as aggregated trades.27 In order to mitigate team or only certain members, e.g., the investment objectives and strategies, the burden for a fund of preparing lead member? risks, and fees and charges. However, descriptions of its policies and • Are the proposed disclosure disclosure in the SAI will be readily procedures, the proposals would permit requirements regarding members of accessible to investors who desire this a fund to include a copy of the policies portfolio management teams information, because funds are required and procedures used to address appropriate? Should all of the proposed to provide an SAI promptly to any conflicts of interest, rather than a 22 disclosure requirements be required investor who requests one. We note description of the policies and with respect to every member of a that we are also proposing amendments procedures.28 to encourage funds to provide greater portfolio management team? Is ‘‘jointly We request comment generally on the access to this information in the SAI.23 and primarily responsible’’ the proposals regarding other accounts appropriate standard to use in The proposals would require a fund to disclose the number of other accounts managed by a fund’s portfolio manager, connection with portfolio management and in particular on the following teams or should we use a different managed by a portfolio manager, and the total assets in the accounts, within issues: standard? • • each of the following categories: Are our proposed disclosure Should we require any additional requirements with respect to other information to be disclosed concerning registered investment companies; other investment companies; other pooled accounts managed by a portfolio portfolio management teams and their manager appropriate? Is there any members, such as information about the investment vehicles; and other 24 additional information about these other team’s structure and decision-making accounts. For each such category, the fund would also be required to disclose accounts that we should require to be process? disclosed? For example, should we • Is the fund prospectus the the number of accounts and the total assets in the accounts with respect to require funds to identify some or all of appropriate location for the proposed the other accounts managed by their disclosure regarding members of which the advisory fee is based on 25 portfolio managers? portfolio management teams, or should account performance. The proposals would also require the • this disclosure be provided in other Are our proposed disclosure fund to describe any conflicts of interest locations, e.g., SAI, shareholder reports, requirements with respect to conflicts of that may arise in connection with the or Form N–CSR? interest that may arise in connection portfolio manager’s management of the • Is the proposal to require managed with managing a fund and managing fund’s investments, on the one hand, separate accounts issuing variable other accounts appropriate? Is there any and the investments of the other annuities to provide prospectus additional information that we should accounts, on the other.26 This disclosure regarding their portfolio require with respect to these potential description would include, for example, managers appropriate? conflicts of interest? Should we require conflicts between the investment disclosure with respect to actual B. Disclosure Regarding Other Accounts conflicts of interest that occurred as a Managed, Potential Conflicts of Interest, 21 Proposed Instruction 2 to Item 15(a) of Form N– result of managing a fund and other and Policies and Procedures To Address 1A; proposed Instruction 2 to Item 21.1 of Form N– accounts? If so, where? 2; proposed Instruction 2 to Item 22(a) of Form N– Conflicts 3. • In the case of a fund with a We are proposing to require a fund to 22 Instruction 3 to Item 1(b)(1) of Form N–1A; portfolio management team, should we provide disclosure in its SAI regarding General Instructions to ‘‘Part B: Statement of require the proposed disclosure Additional Information’’ and Item 33.6 of Form N– other accounts for which the fund’s 2; Item 37(d) of Form N–3. regarding other accounts managed by a portfolio manager is primarily 23 See Section II.F. ‘‘Disclosure of Availability of portfolio manager with respect to every responsible for the day-to-day portfolio Information,’’ infra. management.20 This disclosure is 24 Proposed Item 15(a)(2) of Form N–1A; 27 See Investment Company Act Release No. designed to enable investors to assess proposed Item 21.1.b of Form N–2; proposed Item 26299 (Dec. 17, 2003) [68 FR 74714, 74716 (Dec. 24, 22(a)(ii) of Form N–3. 2003)] (adopting rule 206(4)–7 under the the conflicts of interest to which a 25 Proposed Item 15(a)(3) of Form N–1A; Investment Advisers Act of 1940 and rule 38a–1 proposed Item 21.1.c of Form N–2; proposed Item under the Investment Company Act). 19 Proposed Item 6(e) of Form N–3. 22(a)(iii) of Form N–3. 28 Proposed Instruction 3 to Item 15(a) of Form N– 20 Proposed Item 15(a) of Form N–1A; proposed 26 Proposed Item 15(a)(4) of Form N–1A; 1A; proposed Instruction 3 to Item 21.1 of Form N– Item 21.1 of Form N–2; proposed Item 22(a) of Form proposed Item 21.1.d of Form N–2; proposed Item 2; proposed Instruction 3 to Item 22(a) of Form N– N–3. 22(a)(iv) of Form N–3. 3.

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member of the team or only certain team on fund pre-or after-tax performance We request comment generally on the members, e.g., the lead member? over a certain time period, and whether proposed requirement to disclose the • Is the SAI the appropriate location compensation is based on the value of structure of, and the method used to for the proposed disclosure regarding assets held in the fund’s portfolio.32 determine, the compensation of other accounts managed by a portfolio This description would be required to portfolio managers, and in particular on manager, or should this disclosure be clearly disclose any differences between the following issues: provided in other locations, e.g., the method used to determine the • Is our proposed requirement that a prospectus, shareholder reports, or portfolio manager’s compensation with fund disclose the structure of, and the Form N–CSR? respect to the fund and other accounts, method used to determine, the • Is disclosure of the potential e.g., if the portfolio manager receives compensation of each portfolio manager conflicts in this area sufficient or should part of an advisory fee that is based on appropriate? Is there any additional the Commission prohibit portfolio performance with respect to some information about portfolio manager managers of registered management accounts but not the fund, this would be compensation that we should require to investment companies from managing required to be disclosed.33 be disclosed? Should we require certain types of accounts? We are not proposing to require disclosure of the actual amount of disclosure of the value of compensation compensation paid to a portfolio C. Disclosure of Portfolio Manager paid to a portfolio manager.34 Some manager? Compensation Structure have suggested that the amount of • In the case of a fund with a We are proposing to require a fund to compensation received by portfolio portfolio management team, should we provide disclosure in its SAI regarding managers should be disclosed, just as require the proposed disclosure the structure of, and the method used to operating companies are required to regarding portfolio manager determine, the compensation of its disclose executive compensation.35 compensation with respect to every portfolio managers.29 This disclosure However, the most direct mutual fund member of the team or only certain team may help investors better understand a analogue to the compensation of an members, e.g., the lead member? portfolio manager’s incentives in operating company’s executive officers • Is the SAI the appropriate location running a fund and may also shed light is the compensation of the investment for the proposed disclosure regarding on possible conflicts of interest that adviser. The advisory fee, which is the portfolio manager compensation, or could arise when a portfolio manager amount paid by fund shareholders for should this disclosure be provided in manages other accounts. portfolio management services, is other locations, e.g., prospectus, The proposals would require a currently required to be fully disclosed, shareholder reports, or Form N–CSR? description of the structure of, and the including as part of the fee table of the D. Disclosure of Securities Ownership of method used to determine, the 36 fund’s prospectus. Individual Portfolio Managers compensation received by a fund’s portfolio managers typically are portfolio manager from the fund, its employees of a fund’s investment We are proposing to require a fund to investment adviser, or any other source adviser and are compensated by the disclose in its SAI the ownership of with respect to management of the fund adviser. For that reason, information securities of each of its portfolio and any other account included by the about the compensation of a fund’s managers in the fund and in other fund in response to the proposed portfolio managers would be useful to accounts, including investment disclosure requirement described above investors primarily because it would companies, managed by the fund’s regarding other accounts managed by help them to assess the managers’ investment adviser or the portfolio the portfolio manager.30 For purposes of incentives and whether their interests manager.37 This disclosure could help this disclosure, compensation would are aligned with shareholders, not investors to assess the extent to which include, without limitation, salary, because it would help them better the portfolio manager’s interests are bonus, deferred compensation, and understand the amount being paid from aligned with theirs, as well as the level pension and retirement plans and fund assets for management services. of confidence that a manager has in the arrangements, whether the investment strategy of the fund. In compensation is cash or non-cash.31 For 32 Proposed Item 15(b) of Form N–1A; proposed addition, this disclosure could assist each type of compensation (e.g., salary, Item 21.2 of Form N–2; proposed Item 22(b) of Form fund investors in assessing potential bonus, deferred compensation, N–3. conflicts of interest between their 33 Proposed Instruction 3 to Item 15(b) of Form interests and the interests of other retirement plans and arrangements), the N–1A; proposed Instruction 3 to Item 21.2 of Form fund would be required to include a N–2; proposed Instruction 3 to Item 22(b) of Form clients or investment vehicles in which description of the criteria on which that N–3. the manager has an interest. type of compensation is based, for 34 Id. The proposed disclosure requirement example, whether compensation is 35 See, e.g., Russel Kinnel, Fund Investors Should would apply to securities owned Demand Equality, Morningstar.com, Aug. 6, 2001. beneficially or of record in: (i) the fund; fixed, whether compensation is based Cf. Item 402 of Regulation S–K [17 CFR 229.402] (requiring disclosure of all compensation paid to (ii) other accounts that the fund 29 Proposed Item 15(b) of Form N–1A; proposed certain named executive officers, including the included in response to the proposed Item 21.2 of Form N–2; proposed Item 22(b) of Form registrant’s chief executive officer and the most disclosure requirement described above N–3. highly compensated officers other than the chief regarding other accounts managed by 30 See Section II.B, ‘‘Disclosure Regarding Other executive officer). the portfolio manager; 38 and (iii) any Accounts Managed,’’ supra (describing proposal to 36 See Item 3 and Instruction 3(a) to Item 3 of require disclosure regarding other accounts for Form N–1A, Item 3.1 and Instruction 7.a to Item 3.1 which the fund’s portfolio manager is primarily of Form N–2, and Item 3(a) and Instruction 13 to 37 Proposed Item 15(c) of Form N–1A; proposed responsible for day-to-day portfolio management); Item 3(a) of Form N–3 (disclosure of amount of Item 21.3 of Form N–2; proposed Item 22(c) of Form proposed Instruction 3 to Item 15(b) of Form N–1A; advisory fee); Item 5(a)(1)(ii) of Form N–1A and N–3. Cf. Item 12(b)(4) of Form N–1A; Item 18.7 of proposed Instruction 3 to Item 21.2 of Form N–2; Item 9.1.b.(3) of Form N–2 (requiring description of Form N–2; Item 20(f) of Form N–3 (requiring proposed Instruction 3 to Item 22(b) of Form N–3. investment adviser’s compensation); Item 14(a)(3) disclosure of director’s beneficial ownership of 31 Proposed Instruction 2 to Item 15(b) of Form of Form N–1A, Item 20.1.c of Form N–2, and Item equity securities in funds overseen by director in N–1A; proposed Instruction 2 to Item 21.2 of Form 21(a)(iii) of Form N–3 (requiring disclosure in a fund complex). N–2; proposed Instruction 2 to Item 22(b) of Form fund’s SAI regarding method of calculating the 38 See Section II.B, ‘‘Disclosure Regarding Other N–3. advisory fee payable to the fund). Accounts Managed,’’ supra.

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other account, including an investment We are proposing to require or an update to a fund’s registration company, managed by an investment disclosure of the dollar range of statement that discloses a new portfolio adviser of the fund, or by any person securities owned by portfolio managers, manager, information with respect to directly or indirectly controlling, similar to the disclosure required for any newly identified portfolio manager controlled by, or under common control fund directors’ ownership of equity would be required to be provided as of with an investment adviser or principal securities in the funds they oversee.44 the most recent practicable date.49 The underwriter of the fund.39 With respect Under our proposals, funds would be date as of which the information is to managed separate accounts issuing required to disclose portfolio managers’ provided would be required to be variable annuity contracts, securities ownership of securities using the disclosed. In effect, this would mean subject to disclosure would also include following dollar ranges: none, $1– that a fund would be required to securities in any investment company or $10,000, $10,001–$50,000, $50,001– disclose changes to this information account managed or sponsored by the $100,000, $100,001–$500,000, with respect to a previously identified sponsoring insurance company, or by $500,001–$1,000,000, or over portfolio manager once a year, as part of any person directly or indirectly $1,000,000.45 Disclosure of the dollar its post-effective amendment that is an controlling, controlled by, or under range of securities owned by a portfolio annual update to its registration common control with the sponsoring manager, rather than precise dollar statement.50 A fund would not be insurance company.40 This disclosure holdings, could provide shareholders required to update its SAI during the would apply to securities owned by with significant information to use in year for each change in any of the each portfolio manager and his evaluating whether a manager’s interests required information regarding a immediate family members. For are aligned with their own, while previously identified portfolio manager, purposes of this disclosure, ‘‘immediate protecting managers’ legitimate privacy such as changes in the securities that a family member’’ would mean a person’s interests.46 The maximum range portfolio manager or his or her spouse; child residing in the person’s proposed (over $1,000,000) is intended immediate family members own. The household (including step and adoptive to reflect a level of investment that costs of requiring a fund to update its children); and any dependent of the would be significant. It is also intended SAI under these circumstances could person, as defined in section 152 of the to be high enough to permit investors to outweigh the benefits to investors. Internal Revenue Code.41 The proposals compare the relative stakes of the We request comment generally on the would deem a person to be a ‘‘beneficial manager in different accounts. If, for proposed requirement to disclose the owner’’ of a security if he or she is a example, we used a maximum range of ownership of securities of portfolio ‘‘beneficial owner’’ under either rule over $100,000, an investment of managers and in particular on the 13d–3 under the Exchange Act, which $100,001 and an investment of following issues: focuses on a person’s voting and $5,000,000 would be reflected as the • Is our proposed requirement that a 47 investment power, or rule 16–1(a)(2) same level of investment. This might fund disclose the ownership of under the Exchange Act, which focuses not provide sufficient information for an securities of each portfolio manager on a person’s economic interests in a investor to compare a portfolio with respect to each account managed security.42 manager’s stakes in the fund managed by the portfolio manager as well as his Our proposals would require the fund and other accounts managed, such as ownership in other accounts managed to provide the securities ownership hedge funds. by the investment adviser (or any information in a tabular format, Under our proposals, the required person controlling, controlled by, or including: (1) The name of the portfolio information about a portfolio manager’s under common control with an manager; (2) the account in which the ownership of securities, as well as the investment adviser or principal portfolio manager or immediate family information regarding other accounts underwriter of the fund) appropriate? Is member owns securities; (3) the title of managed and compensation structure, the group of accounts that are covered the class of securities owned; and (4) the would be required to be provided as of appropriate, too broad, or too narrow? Is the end of the fund’s most recently there any additional information about dollar range of securities owned. The 48 information in the table would be completed fiscal year. However, in the the ownership of securities of portfolio required to be provided on an aggregate case of an initial registration statement managers that should be required to be basis for each portfolio manager and his disclosed? 2; proposed Instruction 3 to Item 22(c) of Form N– • immediate family members.43 Should we require disclosure of the 3. dollar range of securities owned by the 44 See Item 12(b)(4) of Form N–1A; Item 18.7 of 39 Proposed Item 15(c) of Form N–1A; proposed Form N–2; Item 20(f) of Form N–3. portfolio manager or would disclosure Item 21.3 of Form N–2; proposed Item 22(c) of Form 45 Proposed Instruction 5 to Item 15(c) of Form N– of the actual value be more appropriate? N–3. 1A; proposed Instruction 5 to Item 21.3 of Form N– If a dollar range is appropriate, what Where a portfolio manager owns shares in one or 2; proposed Instruction 5 to Item 22(c) of Form N– should the required ranges be? Are the more series of a mutual fund that issues two or 3. proposed ranges appropriate? Would a more series of preferred or special stock each of 46 Cf. Investment Company Act Release No. 24816 which is preferred over all other series in respect (Jan. 2, 2001) [66 FR 3734, 3741 (Jan. 16, 2001)] higher maximum range better of assets specifically allocated to that series, the (explaining reasons for requiring disclosure of a differentiate between interests in portfolio manager’s securities ownership would be director’s holdings of securities using dollar ranges different accounts (e.g., a $1,000,001 disclosed by series and not in the aggregate for the rather than an exact dollar amount). interest versus a much larger interest, mutual fund. 47 Cf. Instruction 4 to Item 12(b)(4) of Form N– 40 Proposed Item 22(c)(iii) of Form N–3. 1A; Instruction 4 to Item 18.7 of Form N–2; e.g., $25,000,000)? Or would it be 41 Proposed Instruction 4 to Item 15(c) of Form N– Instruction 4 to Item 20(f) of Form N–3 (requiring 1A; proposed Instruction 4 to Item 21.3 of Form N– disclosure of directors’ equity securities ownership 49 This would include an update to a mutual 2; proposed Instruction 4 to Item 22(c) of Form N– using the following dollar ranges: none, $1– fund’s registration statement that adds a new series 3. $10,000, $10,001–$50,000, $50,001–$100,000, or to the fund. 42 Proposed Instruction 2 to Item 15(c) of Form N– over $100,000). 50 In the case of a change in portfolio manager, 1A; proposed Instruction 2 to Item 21.3 of Form N– 48 Proposed Instruction 1 to each of Items 15(a), however, a fund would be required to update its 2; proposed Instruction 2 to Item 22(c) of Form N– (b) and (c) of Form N–1A; proposed Instruction 1 registration statement to disclose the change and 3; 17 CFR 240.13d–3; 17 CFR 240.16a–1(a)(2). to each of Items 21.1, 21.2, and 21.3 of Form N– provide information about the new manager as 43 Proposed Instruction 3 to Item 15(c) of Form N– 2; proposed Instruction 1 to each of Items 22(a), (b), necessary to comply with its obligations under the 1A; proposed Instruction 3 to Item 21.3 of Form N– and (c) of Form N–3. Securities Act.

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sufficient for the highest maximum • Should we require this securities of interest are important to investors in range to begin at a lower level (e.g., over ownership information, as well as index funds, as they are for fund $100,000)? information regarding other accounts investors generally. Conflicts of interest • Should we also or instead require a managed and compensation structure may arise, for example, in determining fund to disclose the percentage of a discussed above, to be provided as of trading execution priorities when a portfolio manager’s net worth that is the end of the fund’s most recently portfolio manager for an index fund also invested in securities of the fund or completed fiscal year, or should this manages an actively-managed fund that other accounts? If so, what should be information be required as of another invests in some of the same securities as included in the calculation of a portfolio date, e.g., most recent calendar year end the index fund. In addition, it can be manager’s net worth (e.g., net worth of or most recent practicable date prior to difficult to determine whether a fund immediate family members)? filing a new registration statement or an tracks a designated index sufficiently • What is the most effective means for update to an existing registration closely to qualify for the exclusion. As disclosing the relative magnitudes of a statement? Is updating this information a result, we are proposing to remove the portfolio manager’s interest in each of once a year for previously identified exclusion of index funds from portfolio the accounts in which he owns managers, as proposed, sufficient or manager disclosure. securities? For example, should we should it be updated more frequently? If We request comment on the proposed require a fund to disclose, for each more frequent updates should be removal of the exclusion for index funds account listed in the table, the required, how frequent should they be? from providing portfolio manager percentage that the value of the In the case of an initial registration disclosure and specifically on the manager’s interest in the account statement, or an update to a fund’s following issues: represents of the aggregate value of the registration statement that discloses a • Should we remove the exclusion for manager’s interest in all accounts listed new portfolio manager, should we index funds? Should portfolio managers in the table? of index funds be subject to all of the • require information with respect to any Should we require that the newly identified portfolio manager to be proposed disclosure requirements disclosure of securities owned provided as of the most recent regarding portfolio managers or only differentiate between securities that a practicable date or some other date, e.g., some of the proposed requirements? portfolio manager is required to own as most recent calendar-or fiscal year-end? • Is the fund prospectus the a condition of employment and appropriate location for the disclosure E. Removal of Exclusion for Index securities that are owned voluntarily? regarding the name, title, length of • Funds Are there any types of securities to service, and business experience of a which the proposed disclosure We are proposing to remove the portfolio manager of index funds? requirement should not apply, e.g., current provision in Form N–1A that Should this disclosure be provided in should we limit the disclosure to equity excludes a fund that has as its other locations, e.g., SAI or Form N– securities? investment objective replication of the • CSR? Should disclosure be required with performance of an index from the • Should we also remove the respect to securities beneficially owned requirement to identify and provide provision excluding money market under either the definition in rule 13d– disclosure regarding its portfolio funds from the requirement to identify 3 under the Exchange Act or the managers.51 Portfolio manager and provide disclosure regarding their definition in rule 16a–1(a)(2) under the disclosure was originally intended to portfolio managers? Exchange Act, or is one definition more permit investors to assess the appropriate for purposes of this background and experience of portfolio F. Disclosure of Availability of disclosure requirement? Should the managers, and to evaluate the extent of Information disclosure requirement apply to record a manager’s responsibility for the In order to assist investors in finding ownership of securities? • previous investment success (or lack the additional information about Should we require disclosure with thereof) of the fund before making an portfolio managers that would be respect to securities owned by investment decision.52 Index funds required in the SAI under our proposals, immediate family members of portfolio were excluded from the requirement we are proposing to require a fund to managers? If so, should we broaden the because the portfolio management of state in its prospectus that the SAI definition of ‘‘immediate family such funds is, to some extent, provides additional information about member’’ to include, for example, the mechanical.53 portfolio managers’ compensation, other portfolio’s manager’s parents, siblings, Our current proposals, however, accounts managed by the portfolio in-laws, and children not residing with require disclosure regarding portfolio managers, and the portfolio managers’ the manager? Should we limit the managers not in order to help investors ownership of securities in the fund and definition to, for example, the portfolio assess the portfolio manager’s other accounts managed by the manager’s spouse? • contribution to the fund’s investment investment adviser or the portfolio In the case of a fund with a success, but rather to shed light on the managers.54 This disclosure would be portfolio management team, should we manager’s alignment with investors’ required to appear adjacent to the require the proposed disclosure interests and on potential conflicts of disclosure identifying the portfolio regarding ownership of securities of interest. Concerns about the alignment managers. portfolio managers with respect to every of portfolio managers and their conflicts We are also proposing to require that member of the team or only certain team the back cover page of a mutual fund’s members? 51 • Instruction 1 to Item 5(a)(2) of Form N–1A. Is the SAI the appropriate location 52 See Investment Company Act Release No. 54 Proposed Item 5(a)(2) of Form N–1A; proposed for the proposed disclosure regarding 17294 (Jan. 8, 1990) [55 FR 1460, 1467 (Jan. 16, Item 9.1.c of Form N–2; proposed Item 6(e) of Form securities ownership of portfolio 1990)] (proposing requirement in Form N–1A for N–3. With respect to managed separate accounts managers, or should this disclosure be portfolio manager disclosure). registered on Form N–3, registrants would also be 53 See Investment Company Act Release No. required to disclose that the SAI provides provided in other locations, e.g., 19382 (Apr. 6, 1993) [58 FR 19050, 19052 (Apr. 15, additional information about portfolio managers’ prospectus, shareholder reports, or 1993)] (adopting requirement in Form N–1A for securities ownership in other accounts managed or Form N–CSR? portfolio manager disclosure). sponsored by the sponsoring insurance company.

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prospectus state whether the fund G. Amendment of Form N–CSR • Is the proposal to require closed- makes available its SAI and annual and Because closed-end funds do not offer end funds to provide disclosure semi-annual reports, free of charge, on their shares continuously, and are regarding their portfolio managers in or through its Web site at a specified therefore generally not required to reports on Form N–CSR appropriate? Internet address.55 If a mutual fund does maintain an updated SAI to meet their Should a closed-end fund be required to not make its SAI and shareholder obligations under the Securities Act of disclose changes in its portfolio reports available in this manner, the 1933,59 we are proposing to require managers in its semi-annual reports on fund would be required to disclose the closed-end funds to provide disclosure Form N–CSR? Should disclosure of reasons why it does not do so regarding their portfolio managers in changes in a closed-end fund’s portfolio (including, where applicable, that the their annual reports on Form N–CSR.60 managers be required on a more fund does not have an Internet Web frequent basis? If so, where? This would include the basic • site). We are also proposing information (name, title, length of Should we require a closed-end amendments to Forms N–2 and N–3 that service, and business experience), as fund to provide the basic information would require similar disclosure on the well as the disclosure that we are about a portfolio manager in its annual front cover page of the prospectus for proposing regarding other accounts reports on Form N–CSR as of the date closed-end funds and insurance managed by a portfolio manager, of filing of the report or some other date, company managed separate accounts compensation structure, and ownership e.g., most recent practicable date or that issue variable annuity contracts.56 of securities.61 A closed-end fund would most recent fiscal year end? Should In addition, the proposed amendments be required to disclose any change in its disclosure in the annual report to Forms N–2 and N–3 would require portfolio managers, and to provide all of regarding other accounts managed, compensation structure, and securities that the front cover page of the the required portfolio manager ownership be required as of the end of prospectus include a statement disclosure for any newly identified the fund’s most recently completed explaining how to obtain the fund’s portfolio manager, in its semi-annual fiscal year, or should this information be shareholder reports, and a toll-free (or reports on Form N–CSR.62 required as of another date, e.g., most collect) telephone number for investors The disclosure in Form N–CSR with respect to the name, title, length of recent practicable date or most recent to call to request the fund’s SAI, annual calendar year end? Should this and semi-annual reports, and other service, and business experience of a portfolio manager would be required to disclosure with respect to any newly information, and to make shareholder identified portfolio manager in an inquiries. They would also change from be current as of the date of filing of the report, and the disclosure regarding annual report on Form N–CSR be optional to mandatory disclosure of the required as of the most recent Commission’s Internet Web site address. other accounts managed, compensation structure, and securities ownership practicable date, or as of another date, These requirements are similar to e.g., most recent fiscal year end? existing requirements of Form N–1A.57 generally would be required to be • current as of the end of the fund’s most Should a closed-end fund be These proposals are intended to recently completed fiscal year.63 In the required to provide all of the required encourage funds to provide greater case of a newly identified portfolio portfolio manager disclosure for any access for investors to the SAI, manager in an annual or semi-annual newly identified portfolio manager in its including the additional disclosure report, however, this disclosure would semi-annual reports on Form N–CSR? regarding portfolio managers that we are be required to be current as of the most Should the basic information about a proposing, and also to fund shareholder recent practicable date.64 This would portfolio manager in semi-annual reports. Modernizing the disclosure result in basic information about a reports on Form N–CSR be required as system under the Federal securities laws closed-end fund’s portfolio manager in of the date of filing of the report, or involves recognizing the importance of Form N–CSR that is current on the date some other date, e.g., most recent the Internet in fostering prompt and of filing, and would make the date with practicable date or end of the most more widespread dissemination of respect to which other disclosure about recent fiscal half-year? Should other information.58 We believe that mutual a portfolio manager is provided disclosure regarding portfolio managers fund disclosure should be more readily consistent with the requirements for the in semi-annual reports on Form N–CSR available to investors in a variety of SAI in Forms N–1A, N–2, and N–3. be required as of the most recent locations to facilitate investor access to We request comment on the proposed practicable date, or as of another date, that information. We also believe that it amendments to Form N–CSR regarding e.g., most recently completed fiscal half- is important for funds to make investors portfolio managers and specifically on year or most recent calendar year end? aware of the different sources that the following issues: Should a closed-end fund be required to provide access to information about a update semi-annually the information fund. 59 Pursuant to rule 8b–16(b) under the Investment about each of its portfolio managers in Company Act [17 CFR 270.8b–16(b)], closed-end its annual report on Form N–CSR? We request comment on the proposed funds are not required to file amendments to their requirements regarding availability of registration statements (including their SAIs) in H. Compliance Date information. order to comply with their Investment Company Act registration obligations, provided that they If we adopt the proposed disclosure include specified information in their annual requirements, we expect to require all 55 Proposed Item 1(b)(1) of Form N–1A. reports to shareholders. new registration statements and annual 56 Proposed Item 1.1.d of Form N–2; proposed 60 Proposed Item 8 of Form N–CSR. reports on Form N–CSR, and all post- Item 1(a)(vi) of Form N–3. 61 Proposed Item 8(a) of Form N–CSR. effective amendments that are annual 57 See Items 1(b)(1) and 1(b)(3) of Form N–1A. 62 Proposed Item 8(b) of Form N–CSR. updates to effective registration 58 See Securities Act Release No. 8128 (Sept. 5, 63 Proposed Instruction 1 to Item 8(a)(1), proposed 2002) [67 FR 58480 (Sept. 16, 2002)] (adopting Instruction 1 to Item 8(a)(2), proposed Instruction statements, filed on or after the effective requirement for an operating company to disclose 1 to Item 8(a)(3), and proposed Instruction 1 to Item date of the amendments to comply with in its annual report on Form 10–K whether it makes 8(a)(4) of Form N–CSR. the proposed amendments. We would 64 available free of charge on or through its Web site Proposed Instruction 1 to Item 8(a)(1), proposed also expect to require post-effective its annual reports on Form 10–K, quarterly reports Instruction 1 to Item 8(a)(2), proposed Instruction on Form 10–Q, current reports on Form 8–K, and 1 to Item 8(a)(3), proposed Instruction 1 to Item amendments that add a new series, filed amendments). 8(a)(4), and proposed Item 8(b) of Form N–CSR. on or after the effective date, to comply

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with the proposals with respect to the closed-end funds in reports on Form N– by 4 hours. Thus, the incremental hour new series. The Commission requests CSR. burden resulting from the proposed comment on these proposed compliance amendments relating to portfolio Form N–1A dates. manager disclosure would be 30,998 Form N–1A, including the proposed hours ((10 hours × 483 portfolios) + (4 III. General Request for Comments amendments, contains collection of hours × 6,542 portfolios). If the The Commission requests comment information requirements. The likely proposed amendments to Form N–1A on the amendments proposed in this respondents to this information are adopted, the total annual hour release, whether any further changes to collection are open-end funds burden for all funds for preparation and our rules or forms are necessary or registering with the Commission. filing of initial registration statements appropriate to implement the objectives Compliance with the disclosure and post-effective amendments to Form of our proposed amendments, and on requirements of Form N–1A is N–1A would be 1,142,296 hours (30,998 other matters that might have an effect mandatory. Responses to the disclosure hours + 1,111,298 hours). on the proposals contained in this requirements are not confidential. Form N–2 release. The current hour burden for preparing an initial registration statement on Form Form N–2, including the proposed IV. Paperwork Reduction Act N–1A is 812.5 hours per portfolio, and amendments, contains collection of Certain provisions of the proposed the current annual hour burden for information requirements. The likely amendments contain ‘‘collection of preparing post-effective amendments on respondents to this information information’’ requirements within the Form N–1A is 104.5 hours per portfolio. collection are closed-end funds meaning of the Paperwork Reduction The Commission estimates that, on an registering with the Commission. annual basis, registrants file initial Act of 1995 [44 U.S.C. 3501, et seq.], Compliance with the disclosure registration statements on Form N–1A and the Commission is submitting the requirements of Form N–2 is mandatory. covering 483 portfolios, and file post- proposed collections of information to Responses to the disclosure effective amendments on Form N–1A the Office of Management and Budget requirements are not confidential. covering 6,542 portfolios. An additional (‘‘OMB’’) for review in accordance with The current hour burden for preparing burden of 35,218 hours is expected to 44 U.S.C. 3507(d) and 5 CFR 1320.11. an initial registration statement on Form result from the Commission’s recent The titles for the collections of N–2 is 548.2 hours per fund, and the proposed rules relating to frequent information are: (1) ‘‘Form N–1A under current annual hour burden for purchases and redemptions of fund the Investment Company Act of 1940 preparing post-effective amendments on shares and selective disclosure of and Securities Act of 1933, Registration Form N–2 is 107.2 hours per fund. The portfolio holdings, disclosure of sales Commission estimates that, on an Statement of Open-End Management load breakpoints, and disclosure of sales Investment Companies’’; (2) ‘‘Form N–2 annual basis, 234 closed-end funds file loads and revenue sharing in connection initial registration statements on Form under the Investment Company Act of with proposed mutual fund 1940 and Securities Act of 1933, N–2, and 38 closed-end funds file post- confirmation requirements and point of effective amendments on Form N–2. Registration Statement of Closed-End sale disclosure.65 Thus, the Commission Management Investment Companies’’; Thus, the Commission estimates that the estimates that the current total annual current total annual hour burden for the (3) ‘‘Form N–3—Registration Statement hour burden for the preparation and of Separate Accounts Organized as preparation and filing of Form N–2 is filing of Form N–1A would be 1,111,298 67 Management Investment Companies’’; 66 132,352 hours. hours. We estimate that the proposed and (4) ‘‘Form N–CSR—Certified We estimate that the proposed amendments would increase the hour Shareholder Report of Registered amendments would increase the hour burden per filing of an initial Management Investment Companies.’’ burden per portfolio per filing of an registration statement on Form N–2 by An agency may not conduct or sponsor, initial registration statement by 10 hours 10 hours and would increase the hour and a person is not required to respond and would increase the hour burden per burden per filing of a post-effective to, a collection of information unless it portfolio per filing of a post-effective displays a currently valid OMB control amendment to a registration statement amendment to a registration statement number. on Form N–2 by 4 hours. Thus, the Form N–1A (OMB Control No. 3235– 65 See Investment Company Act Release No. incremental hour burden resulting from 0307), Form N–2 (OMB Control No. 26287 (Dec. 11, 2003) [68 FR 70402 (Dec. 17, 2003)] the proposed amendments relating to 3235–0026), and Form N–3 (OMB (disclosure of frequent purchases and redemptions portfolio manager disclosure would be of fund shares and selective disclosure of portfolio × Control No. 3235–0316) were adopted 2,492 hours ((10 hours 234 funds) + holdings); Investment Company Act Release No. × pursuant to Section 8(a) of the 26298 (Dec. 17, 2003) [68 FR 74732 (Dec. 24, 2003)] (4 hours 38 funds)). If the proposed Investment Company Act [15 U.S.C. (disclosure of sales load breakpoints); Investment amendments to Form N–2 are adopted, 80a–8(a)] and Section 5 of the Securities Company Act Release No. 26341 (Jan. 29, 2004) [69 the total annual hour burden for all FR 6438 (Feb. 10, 2004)] (disclosure of sales loads funds for preparation and filing of Act [15 U.S.C. 77e]. Form N–CSR (OMB and revenue sharing). Control No. 3235–0570) was adopted 66 This estimate is based on the following initial registration statements and post- pursuant to Section 30 of the Investment calculation: (812.5 hours × 483 portfolios) + (104.5 effective amendments on Form N–2 × Company Act [15 U.S.C. 80a–29] and hours 6,542 portfolios) = 1,076,080 hours. would be 134,844 hours (2,492 hours + Additional annual hour burdens of 30,998 hours 132,352 hours). Sections 13 and 15(d) of the Exchange resulting from the proposed rules relating to Act [15 U.S.C. 78m and 78o(d)]. frequent purchases and redemptions and selective Form N–3 We are proposing amendments to disclosure, 2,252 hours resulting from the proposed rules relating to sales load breakpoint disclosure, Form N–3, including the proposed Forms N–1A, N–2, and N–3 to require and 1,968 hours resulting from the proposed rules amendments, contains collection of funds to provide improved disclosure relating to disclosure of sales loads and revenue information requirements. The likely regarding their portfolio managers in sharing in connection with the proposals for new fund prospectuses and SAIs. The mutual fund confirmation and point of sale disclosure, result in a total annual hour burden of 67 This estimate is based on the following proposals also would amend Form N– 1,111,298 hours (1,076,080 hours + 30,998 hours + calculation: (548.2 hours × 234 funds) + (107.2 CSR to require similar disclosure for 2,252 hours + 1,968 hours). hours × 38 funds) = 132,352 hours.

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respondents to this information The current total annual hour burden Office of Management and Budget, collection are separate accounts, for preparing reports on Form N–CSR is Attention: Desk Officer for the organized as management investment 142,498 hours. A net increase of 121 Securities and Exchange Commission, companies offering variable annuities, hours is expected to result from the Office of Information and Regulatory registering with the Commission on Commission’s final rule relating to Affairs, Room 10102, New Executive Form N–3. Compliance with the disclosure regarding nominating Office Building, Washington, DC 20503, disclosure requirements of Form N–3 is committee functions and and should send a copy to Jonathan G. mandatory. Responses to the disclosure communications between security Katz, Secretary, Securities and Exchange requirements are not confidential. holders and boards of directors.69 Thus, Commission, 450 5th Street, NW., The current total annual hour burden the Commission estimates that the Washington, DC 20549–0609, with for preparing registration statements on current total annual hour burden for the reference to File No. S7–12–04. Form N–3 is 33,934 hours. An preparation and filing of Form N–CSR Requests for materials submitted to additional burden of 728 hours is would be 142,619 hours. OMB by the Commission with regard to expected to result from the We estimate that 733 closed-end this collection of information should be Commission’s recent proposed rules funds registered on Form N–2 file in writing, refer to File No. S7–12–04, relating to frequent purchases and reports on Form N–CSR.70 We estimate and be submitted to the Securities and redemptions of fund shares and that the hour burden associated with the Exchange Commission, Office of Filing selective disclosure of portfolio requirements of this proposal would and Information Services, 450 Fifth holdings.68 Thus, we estimate that the increase the burden of filing Form N– Street, NW., Washington, DC 20549– current total annual hour burden for the CSR for closed-end funds by 4 hours per 0609. OMB is required to make a preparation and filing of Form N–3 is annual report on Form N–CSR, and by decision concerning the collection of 34,662 hours (33,934 hours + 728 2 hours per semi-annual report on Form information between 30 and 60 days hours). N–CSR. Thus, the incremental hour after publication of this release. The Commission estimates that, on an burden resulting from the proposed Consequently, a comment to OMB is annual basis, initial registration amendments relating to portfolio best assured of having its full effect if statements covering 3 portfolios are manager disclosure would be 4,398 OMB receives it within 30 days after filed on Form N–3 and post-effective hours ((4 hours × 733 closed-end funds) publication of this Release. × amendments covering 35 portfolios are + (2 hours 733 closed-end funds)). If V. Cost/Benefit Analysis filed on Form N–3. We estimate that the the proposed amendments to Form N– The Commission is sensitive to the proposed amendments would increase CSR are adopted, the total annual hour costs and benefits imposed by its rules. the hour burden per portfolio per filing burden for all funds for preparation and Our proposals would require mutual of an initial registration statement on filing of reports on Form N–CSR would funds to provide enhanced disclosure Form N–3 by 10 hours and would be 147,017 hours (4,398 hours + 142,619 about their portfolio managers. increase the hour burden per portfolio hours). Specifically, the proposals would: per filing of a post-effective amendment Request for Comments • Require a fund to identify in its to a registration statement on Form N– We request your comments on the prospectus each member of a 3 by 4 hours. Thus, the incremental committee, team, or other group of hour burden resulting from the accuracy of our estimates. Pursuant to 44 U.S.C. 3506(c)(2)(B), the Commission persons that is jointly and primarily proposed amendments relating to responsible for the day-to-day portfolio manager disclosure would be solicits comments to: (i) Evaluate × whether the proposed collection of management of the fund’s portfolio; 170 hours ((10 hours 3 portfolios) + (4 • Require a fund to provide × information is necessary for the proper hours 35 portfolios). If the proposed information in its SAI regarding other performance of the functions of the amendments to Form N–3 are adopted, accounts managed by any of its portfolio agency, including whether the the total annual hour burden for all managers, including a description of information will have practical utility; funds for preparation and filing of conflicts of interest that may arise in (ii) evaluate the accuracy of the initial registration statements and post- connection with simultaneously Commission’s estimate of burden of the effective amendments on Form N–3 managing the fund and the other proposed collection of information; (iii) would be 34,832 hours (170 hours + accounts; 34,662 hours). determine whether there are ways to • Require a fund to disclose in its SAI enhance the quality, utility, and clarity Form N–CSR the structure of, and the method used to of the information to be collected; and determine, the compensation of each Form N–CSR, including the (iv) evaluate whether there are ways to portfolio manager; amendments, contains collection of minimize the burden of the collection of • Require a fund to disclose in its SAI information requirements. The information on those who are to each portfolio manager’s ownership of respondents to this information respond, including through the use of securities in the fund and other collection would be closed-end funds automated collection techniques or accounts, including investment subject to rule 30e–1 under the other forms of information technology. companies, managed by the portfolio Investment Company Act registering Persons submitting comments on the manager, the fund’s investment adviser, with the Commission on Form N–2. collection of information requirements or any person controlling, controlled by, Compliance with the disclosure should direct the comments to the or under common control with an requirements of Form N–CSR is investment adviser or principal 69 mandatory. Responses to the disclosure See Investment Company Act Release No. underwriter of the fund; and 26262 (Nov. 24, 2003) [68 FR 66992 (Nov. 28, 2003)] • requirements are not confidential. (disclosure regarding nominating committee Require a closed-end fund to functions and communications between security provide parallel disclosure regarding its 68 See Investment Company Act Release No. holders and boards of directors). portfolio managers in its reports on 26287 (Dec. 11, 2003) [68 FR 70402 (Dec. 17, 2003)] 70 The estimate of the number of closed-end funds Form N–CSR. (disclosure of frequent purchases and redemptions registered on Form N–2 is based on the Commission of fund shares and selective disclosure of portfolio staff’s analysis of reports filed on Form N–SAR in These proposed amendments are holdings). 2003. intended to provide greater

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transparency regarding portfolio as well as any data quantifying those We expect that the external costs of managers, their incentives in managing benefits. providing the additional disclosure a fund, and the potential conflicts of relating to a fund’s portfolio managers, B. Costs interest that may arise when they or the including other accounts they manage, adviser that employs them also manages The proposals would impose new compensation structure, and ownership other investment vehicles. requirements on funds to provide of securities in investment companies or enhanced disclosure regarding their accounts they manage, would be A. Benefits portfolio managers. We estimate that minimal, because this disclosure would The enhanced disclosure regarding complying with these proposed new be required in a fund’s SAI (and in the portfolio managers that would be disclosure requirements would entail a case of a closed-end fund, on Form N– required under our proposals would relatively small financial burden. The CSR also). The SAI is typically not benefit investors in several ways. First, information that would be required typeset, and is only required to be enhanced disclosure regarding portfolio regarding a fund’s portfolio managers provided to shareholders upon request. managers who are members of should be readily available to a fund’s Similarly, because the disclosure in management teams would help investment adviser. We note that our Form N–CSR proposed for closed-end investors better evaluate the identity, recently proposed code of ethics rules funds would not be required to be background, and experience of fund for investment advisers would require delivered to shareholders, we estimate management in cases where the fund is portfolio managers to report to the that the external costs of this disclosure managed using a team approach. investment adviser information on their on Form N–CSR will be minimal as Second, requiring a fund to provide securities holdings and transactions on well. disclosure regarding other accounts for a quarterly basis, including information We request comment on the nature which its portfolio managers are about shares of investment companies and magnitude of our estimates of the primarily responsible for day-to-day managed by the adviser and certain of costs of the additional disclosure that portfolio management would enable its affiliates.71 Therefore, we expect that would be required if our proposals were investors to assess the conflicts of the cost of compiling and reporting this adopted. information should be limited. interest to which a portfolio manager C. Request for Comments may be subject as a result of managing These costs may include both internal the fund and other portfolios, such as costs (for attorneys and other non-legal We request comments on all aspects hedge funds. Third, requiring a fund to staff of a fund, such as computer of this cost-benefit analysis, including provide disclosure regarding the programmers, to prepare and review the identification of any additional costs or structure of, and method used to required disclosure) and external costs benefits of, or suggested alternatives to, determine, the compensation of its (for printing and typesetting of the the proposed amendments. Commenters portfolio managers will help investors disclosure). For purposes of the are requested to provide empirical data better understand a portfolio manager’s Paperwork Reduction Act, we have and other factual support for their views incentives in running a fund, and would estimated that the proposed new to the extent possible. also shed light on possible conflicts of disclosure requirements would add VI. Consideration of Burden on interest that may arise when a portfolio 38,058 hours to the burden of Competition; Promotion of Efficiency, manager manages other accounts. completing Forms N–1A, N–2, N–3 and Competition, and Capital Formation Fourth, requiring a fund to disclose the N–CSR.72 We estimate that this ownership of securities of each of its additional burden would equal total Section 23(a)(2) of the Exchange Act portfolio managers in the fund and in internal costs of $2,986,792 annually, or requires us, when adopting rules under other accounts, including investment approximately $786 per fund.73 the Exchange Act, to consider the companies, managed by the fund’s impact that any new rule would have on 74 investment adviser or the portfolio 71 See Investment Company Act Release No. competition. Section 23(a)(2) also manager should help investors to assess 26337 (Jan. 20, 2004) [66 FR 4040 (Jan. 27, 2004)] prohibits us from adopting any rule that the extent to which the portfolio (proposing rule 204A–1(b)(1) under the Investment would impose a burden on competition Advisers Act of 1940). not necessary or appropriate in manager’s interests are aligned with 72 This represents 30,998 additional hours for furtherance of the purposes of the theirs, as well as the level of confidence Form N–1A, 2,492 additional hours for Form N–2, that a manager has in the investment 170 additional hours for Form N–3, and 4,398 Exchange Act. In addition, Section 2(c) strategy of the fund. In addition, we additional hours for Form N–CSR. of the Investment Company Act, Section 73 believe that requiring this disclosure These internal cost estimates are based on a 2(b) of the Securities Act, and Section Commission estimate that approximately 3,800 3(f) of the Exchange Act require the would assist fund investors in assessing funds would be subject to the proposed potential conflicts of interest between amendments and an estimated hourly wage rate of Commission, when engaging in their interests, and the interests of other $78.48. This estimated wage rate is a blended rate, rulemaking that requires it to consider clients or investment vehicles in which based on published hourly wage rates for or determine whether an action is compliance attorneys ($74.22) and programmers necessary or appropriate in the public the manager has an interest. Finally, ($42.05) in New York City, and the estimate that requiring a fund to state in its professional and non-professional staff will divide interest, to consider, in addition to the prospectus that the SAI provides time equally on compliance with the disclosure protection of investors, whether the additional information about portfolio requirements, yielding a weighted wage rate of action will promote efficiency, $58.135 (($74.22 × .50) + ($42.05 × .50)) = $58.135). competition, and capital formation.75 managers, and whether the SAI is See Securities Industry Association, Report on available on or through the fund’s Web Management & Professional Earnings in the The proposed amendments are site, would assist investors in accessing Securities Industry 2001 (Oct. 2001) (for most intended to provide greater the additional information about current rate for compliance attorneys in New York transparency for fund shareholders City); Securities Industry Association, Report on regarding the identity, incentives, and portfolio managers that would be Management & Professional Earnings in the required in the SAI under our proposals. Securities Industry 2002 (Sep. 2002) (for most current rate for programmers in New York City). obtain the total per hour internal cost of $78.48 × We seek comment on the benefits of This weighted wage rate was then adjusted upward ($58.135 1.35 = $78.48). the proposed amendments (and any by 35% for overhead, reflecting the costs of 74 15 U.S.C. 78w(a)(2). alternatives suggested by commenters) supervision, space, and administrative support, to 75 15 U.S.C. 77(b), 78c(f), and 80a–2(c).

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potential conflicts of interest of a fund’s incentives in managing the fund, and The Commission estimates some one- portfolio managers. These changes may potential conflicts of interest. time formatting and ongoing costs and improve efficiency. The enhanced burdens that would be imposed on all B. Legal Basis disclosure requirements may enable funds, including funds that are small shareholders to make a more informed The Commission is proposing entities. We note, however, that in many assessment as to whether the interests of amendments to Forms N–1A, N–2, and cases mutual funds and closed-end fund management are aligned with N–3 pursuant to authority set forth in funds currently provide disclosure in shareholders, which could promote Sections 5, 6, 7, 10, and 19(a) of the their prospectuses about their portfolio more efficient allocation of investments Securities Act [15 U.S.C. 77e, 77f, 77g, managers, including their names, titles, by investors. These proposals may also 77j, and 77s(a)], and Sections 8, 24(a), length of service, and business improve competition, as enhanced 30, and 38 of the Investment Company experience. For purposes of the transparency regarding a fund’s Act [15 U.S.C. 80a–8, 80a–24(a), 80a–29, Paperwork Reduction Act, we have portfolio managers may encourage and 80a–37]. The Commission is estimated that the proposed new investors to consider more carefully the adopting amendments to Form N–CSR disclosure requirements would increase background, incentives, and potential pursuant to authority set forth in the hour burden of filings on Forms N– conflicts of interest of the portfolio sections 10(b), 13, 15(d), 23(a), and 36 1A, N–2, N–3, and N–CSR by 38,058 managers of the funds in which they are of the Exchange Act [15 U.S.C. 78j(b), hours annually. We estimate that this invested, or in which they are 78m, 78o(d), 78w(a), and 78mm] and additional burden would increase total considering investing. Finally, the sections 8, 24(a), 30, and 38 of the internal costs per fund, including funds proposed amendments will have no Investment Company Act [15 U.S.C. that are small entities, by approximately effect on capital formation. 80a–8, 80a–24(a), 80a–29, and 80a–37]. $786 per fund annually.79 Although, as noted above, we believe C. Small Entities Subject to the Rule We expect that the external costs of that the proposed amendments would providing the additional disclosure For purposes of the Regulatory benefit investors, the magnitude of the relating to a fund’s portfolio managers, Flexibility Act, an investment company effect of the proposed amendments on including other accounts they manage, is a small entity if it, together with other efficiency and competition, and the compensation structure, and ownership investment companies in the same extent to which they would be offset by of securities in accounts they manage, group of related investment companies, the costs of the proposals, are difficult would be minimal, because this has net assets of $50 million or less as to quantify. We note that most funds are disclosure would be required in a fund’s currently required to provide disclosure of the end of its most recent fiscal 76 SAI (and in the case of a closed-end in their prospectuses regarding the year. Approximately 145 mutual funds registered on Form N–1A and fund, on Form N–CSR also). The SAI is identity and background of their typically not typeset, and is only portfolio managers. approximately 70 closed-end funds registered on Form N–2 meet this required to be provided to shareholders We request comment on whether the upon request. Similarly, because the proposed amendments, if adopted, definition.77 We estimate that few, if any, registered separate accounts disclosure in Form N–CSR proposed for would promote efficiency, competition, closed-end funds would not be required and capital formation. We also request registered on Form N–3 are small entities.78 to be delivered to shareholders, we comment on any anti-competitive estimate that the external costs of this effects of the proposed amendments. D. Reporting, Recordkeeping, and Other disclosure on Form N–CSR will be Commenters are requested to provide Compliance Requirements minimal as well. empirical data and other factual support The proposed amendments would The Commission solicits comment on for their views if possible. require a fund to identify and provide the effect the proposed amendments VII. Initial Regulatory Flexibility basic information in its prospectus would have on small entities. Analysis regarding each member of a team E. Duplicative, Overlapping or This Initial Regulatory Flexibility responsible for managing the fund’s Conflicting Federal Rules portfolio. In addition, a fund would be Analysis (‘‘Analysis’’) has been There are no rules that duplicate, prepared in accordance with 5 U.S.C. required to provide additional disclosure in its SAI about its portfolio overlap, or conflict with the proposed 603. It relates to the Commission’s amendments. proposed amendments to Forms N–1A, managers, including other accounts they N–2, and N–3 under the Securities Act manage, compensation structure, and F. Significant Alternatives and the Investment Company Act, and ownership of securities in accounts they The Regulatory Flexibility Act directs to Form N–CSR under the Investment manage. A closed-end fund would also us to consider significant alternatives Company Act and the Exchange Act, be required to provide this disclosure in that would accomplish our stated that would require funds to provide its reports on Form N–CSR. objective, while minimizing any improved disclosure about their significant adverse impact on small 76 portfolio managers. 17 CFR 270.0–10. issuers. In connection with the 77 This estimate is based on analysis by the A. Reasons for, and Objectives of, Division of Investment Management staff of proposed amendments, the Commission Proposed Amendments information from databases compiled by third-party considered the following alternatives: (i) information providers, including Morningstar, Inc., The establishment of differing Sections I and II of this Release and Lipper. compliance or reporting requirements or describe the reasons for and objectives 78 This estimate is based on figures compiled by Division of Investment Management staff regarding timetables that take into account the of the proposed form amendments. As separate accounts registered on Form N–3. In resources available to small entities; (ii) we discuss in detail above, these determining whether an insurance company the clarification, consolidation, or proposals are designed to increase the separate account is a small entity for purposes of simplification of compliance and transparency of the information that a the Regulatory Flexibility Act, the assets of insurance company separate accounts are reporting requirements under the fund provides regarding its portfolio aggregated with the assets of their sponsoring managers, in order to better help insurance companies. Rule 0–10(b) under the 79 These figures are based on an estimated hourly investors evaluate their background, Investment Company Act [17 CFR 270.0–10(b)]. wage rate of $78.48. See supra note 73.

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proposed amendments for small amendments and the likely impact of pursuant to authority set forth in entities; (iii) the use of performance the proposals on small entities. sections 10(b), 13, 15(d), 23(a), and 36 rather than design standards; and (iv) an Commenters are asked to describe the of the Exchange Act [15 U.S.C. 78j(b), exemption from coverage of the nature of any impact and provide 78m, 78o(d), 78w(a), and 78mm] and proposed amendments, or any part empirical data supporting the extent of sections 8, 24(a), 30, and 38 of the thereof, for small entities. the impact. These comments will be Investment Company Act [15 U.S.C. The Commission believes at the considered in the preparation of the 80a–8, 80a–24(a), 80a–29, and 80a–37]. present time that special compliance or Final Regulatory Flexibility Analysis, if List of Subjects reporting requirements for small the proposed amendments are adopted, entities, or an exemption from coverage and will be placed in the same public 17 CFR Parts 239 and 249 for small entities, would not be file as comments on the proposed Reporting and recordkeeping appropriate or consistent with investor amendments themselves. Comments requirements, Securities. protection. The proposed amendments should be submitted in triplicate to would provide investors with greater Jonathan G. Katz, Secretary, Securities 17 CFR Parts 270 and 274 transparency of information regarding and Exchange Commission, 450 Fifth Investment companies, Reporting and fund portfolio managers, including their Street, NW., Washington, DC 20549– recordkeeping requirements, Securities. compensation structure, other accounts 0609. Comments also may be submitted that they manage, and their ownership electronically at the following E-mail Text of Proposed Rule and Form of securities in the fund and in other address: [email protected]. All Amendments accounts managed by the fund’s comment letters should refer to File No. For the reasons set out in the investment adviser or the portfolio S7–12–04; this file number should be preamble, the Commission proposes to manager. This increased transparency included on the subject line if E-mail is amend Title 17, Chapter II, of the Code would allow investors to better assess used. Comment letters will be available of Federal Regulations as follows. portfolio managers’ incentives, for public inspection and copying in the alignment with shareholders’ interests, Commission’s Public Reference Room, PART 239—FORMS PRESCRIBED and potential conflicts of interest. 450 Fifth Street, NW., Washington, DC UNDER THE SECURITIES ACT OF 1933 Different disclosure requirements for 20549–0102. Electronically submitted 1. The authority citation for Part 239 funds that are small entities may create comment letters also will be posted on continues to read in part as follows: the risk that investors in these funds the Commission’s Internet Web site Authority: 15 U.S.C. 77f, 77g, 77h, 77j, 77s, would be less able to evaluate the (http://www.sec.gov).80 portfolio management of these funds, 77z–2, 77sss, 78c, 78l, 78m, 78n, 78o(d), 78u–5, 78w(a), 78ll(d), 79e, 79f, 79g, 79j, 79l, and less able to make informed choices VIII. Consideration of Impact on the Economy 79m, 79n, 79q, 79t, 80a–8, 80a–24, 80a–26, among funds. We believe it is important 80a–29, 80a–30, and 80a–37, unless for the disclosure that would be For purposes of the Small Business otherwise noted. required by the proposed amendments Enforcement Fairness Act of 1996,81 a to be provided to investors in all funds, rule is ‘‘major’’ if it results or is likely PART 249—FORMS, SECURITIES not just funds that are not considered to result in: EXCHANGE ACT OF 1934 small entities. • An annual effect on the economy of 2. The authority citation for part 249 We have endeavored through the $100 million or more; continues to read, in part, as follows: proposed amendments to minimize the • A major increase in costs or prices regulatory burden on all funds, for consumers or individual industries; Authority: 15 U.S.C. 78a et seq. and 7201 including small entities, while meeting or et seq.; and 18 U.S.C. 1350, unless otherwise our regulatory objectives. Small entities • Significant adverse effects on noted. should benefit from the Commission’s competition, investment, or innovation. PART 270—RULES AND reasoned approach to the proposed The Commission requests comment on REGULATIONS, INVESTMENT amendments to the same degree as other the potential impact of the proposed COMPANY ACT OF 1940 investment companies. Further amendments on the U.S. economy on an clarification, consolidation, or annual basis. Commenters are requested 3. The authority citation for part 270 simplification of the proposals for funds to provide empirical data to support continues to read, in part, as follows: that are small entities would be their views. Authority: 15 U.S.C. 80a–1 et seq., 80a– inconsistent with the Commission’s 34(d), 80a–37, and 80a–39, unless otherwise concern for investor protection. Finally, IX. Statutory Authority noted. we do not consider using performance The Commission is proposing § 270.30a–2 [Amended] rather than design standards to be amendments to Forms N–1A, N–2, and consistent with our statutory mandate of N–3 pursuant to authority set forth in 4. Section 270.30a–2 is amended by: investor protection in the present sections 5, 6, 7, 10, and 19(a) of the a. Revising the reference ‘‘Item context. Based on our past experience, Securities Act [15 U.S.C. 77e, 77f, 77g, 11(a)(2)’’ in paragraph (a) to read ‘‘Item we believe that the proposed disclosure 77j, and 77s(a)] and sections 8, 24(a), 30, 12(a)(2)’’; and b. Revising the reference ‘‘Item 11(b)’’ would be more useful to investors if and 38 of the Investment Company Act in paragraph (b) to read ‘‘Item 12(b)’’. there were enumerated informational [15 U.S.C. 80a–8, 80a–24(a), 80a–29, requirements. and 80a–37]. The Commission is PART 274—FORMS PRESCRIBED proposing amendments to Form N–CSR G. Solicitation of Comments UNDER THE INVESTMENT COMPANY ACT OF 1940 The Commission encourages the 80 We do not edit personal identifying submission of written comments with information, such as names or electronic mail 5. The authority citation for Part 274 respect to any aspect of this Analysis. addresses, from hard copy or electronic continues to read in part as follows: submissions. You should submit only information Comment is specifically requested on that you wish to make available publicly. Authority: 15 U.S.C. 77f, 77g, 77h, 77j, 77s, the number of small entities that would 81 Pub. L. No. 104–21, Title II, 110 Stat. 857 78c(b), 78l, 78m, 78n, 78o(d), 80a–8, 80a–24, be affected by the proposed (1996). 80a–26, and 80a–29, unless otherwise noted.

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Note: The text of Forms N–1A, N–2, N–3, the references ‘‘Item 21(b)(1)’’ and ‘‘Item of the Fund, if any, who are primarily and N–CSR do not, and these amendments 21(c)(1)’’ to read ‘‘Item 22(b)(1)’’ and responsible for the day-to-day will not, appear in the Code of Federal ‘‘Item 22(c)(1)’’, respectively; and management of the Fund’s portfolio Regulations. r. In Instruction 2(a)(ii) to paragraph (‘‘Portfolio Manager’’). Also state each 6. Form N–1A (referenced in (d)(1) of newly redesignated Item 22, Portfolio Manager’s business experience §§ 239.15A and 274.11A) is amended revising the reference ‘‘Item 21(d)(1)’’ to during the past 5 years. Include a by: read ‘‘Item 22(d)(1)’’. statement, adjacent to the foregoing a. Revising Item 1(b)(1) and The additions and revisions are to disclosure, that the SAI provides Instruction 1 to Item 1(b)(1); read as follows: additional information about the Portfolio Manager’s(s’) compensation, b. Revising Item 5(a)(2) and Form N–1A Instructions 1 and 2 to Item 5(a)(2) and other accounts managed by the Portfolio deleting Instructions 3 and 4 to Item * * * * * Manager(s), and the Portfolio 5(a)(2); Item 1. Front and Back Cover Pages Manager’s(s’) ownership of securities in c. Redesignating Items 15 through 29 the Fund and other accounts managed as Items 16 through 30; * * * * * by the Fund’s investment adviser(s) or d. Adding new Item 15; (b) Back Cover Page. Include the the Portfolio Manager(s). e. In paragraph B.2(b) of the General following information, in plain English Instructions: Instructions, revising the phrase under rule 421(d) under the Securities 1. This requirement does not apply to ‘‘(except Items 1, 2, 3, and 8), B, and C Act, on the outside back cover page of a Money Market Fund. (except Items 22(e) and (i)–(k))’’ to read the prospectus: 2. If a committee, team, or other group ‘‘(except Items 1, 2, 3, and 8), B, and C (1) A statement that the SAI includes of persons associated with an (except Items 23(e) and (i)–(k))’’; additional information about the Fund, investment adviser of the Fund is jointly f. In Item 2(c)(2)(iii), revising the and a statement to the following effect: and primarily responsible for the day-to- phrase ‘‘Instruction 5 to Item 21(b)(7)’’ Additional information about the day management of the Fund’s portfolio, to read ‘‘Instruction 5 to Item 22(b)(7)’’; Fund’s investments is available in the information in response to this Item is g. In Instruction 2(a) to Item 2(c)(2), Fund’s annual and semi-annual reports required for each member of such revising the references ‘‘Item 20(a)’’, to shareholders. In the Fund’s annual committee, team, or other group. For Item 20(b)(1)’’, and ‘‘Items 20(b)(2) and report, you will find a discussion of the each such member, provide a brief (3)’’ to read ‘‘Item 21(a)’’, Item 21(b)(1)’’, market conditions and investment description of the person’s role on the and ‘‘Items 21(b)(2) and (3)’’, strategies that significantly affected the committee, team, or other group (e.g., respectively; Fund’s performance during its last fiscal lead member). h. In Instruction 2(b) to Item 2(c)(2), year. * * * * * revising the phrase ‘‘Instruction 6 to Explain that the SAI and the Fund’s Item 15. Portfolio Managers Item 21(b)(7)’’ to read ‘‘Instruction 6 to annual and semi-annual reports are Item 22(b)(7)’’; available, without charge, upon request, (a) Other Accounts Managed. If a i. In Instruction 2(d) to Item 2(c)(2), and explain how shareholders in the Portfolio Manager identified in response revising the references ‘‘Item 20(b)(2)’’ Fund may make inquiries to the Fund. to Item 5(a)(2) is primarily responsible and ‘‘Item 20’’ to read ‘‘Item 21(b)(2)’’ Provide a toll-free (or collect) telephone for the day-to-day management of the and ‘‘Item 21’’, respectively; number for investors to call: To request portfolio of any other account, provide j. In Instruction 4 to Item 2(c)(2), the SAI; to request the Fund’s annual the following information: report; to request the Fund’s semi- (1) The Portfolio Manager’s name; revising the phrase ‘‘Instruction 11 to (2) The number of other accounts annual report; to request other Item 21(b)(7)’’ to read ‘‘Instruction 11 to managed within each of the following information about the Fund; and to Item 22(b)(7)’’; categories and the total assets in the make shareholder inquiries. Also, state k. In Instruction to paragraph (a) of accounts managed within each category: newly redesignated Item 18, revising the whether the Fund makes available its (A) Registered investment companies; reference ‘‘Item 17(a)’’ to read ‘‘Item SAI and annual and semi-annual (B) Other investment companies; 18(a)’’; reports, free of charge, on or through the (C) Other pooled investment vehicles; l. In Instruction 4 to paragraph (c) of Fund’s Web site at a specified Internet and newly redesignated Item 18 and address. If the Fund does not make its (D) Other accounts. paragraph (k) of newly redesignated SAI and shareholder reports available in (3) For each of the categories in Item 23, revising the reference ‘‘Item this manner, disclose the reasons why it paragraph (a)(2) of this Item, the number 21’’ to read ‘‘Item 22’’; does not do so (including, where of accounts and the total assets in the m. In Instruction 1 to paragraph (c) of applicable, that the Fund does not have accounts with respect to which the newly redesignated Item 20, revising the an Internet Web site). advisory fee is based on the reference ‘‘Item 29’’ to read ‘‘Item 30’’; Instructions: performance of the account; and n. In paragraph (b) of newly 1. A Fund may indicate, if applicable, (4) A description of any conflicts of redesignated Item 27, revising the that the SAI, annual and semi-annual interest that may arise in connection reference ‘‘Item 19’’ to read ‘‘Item 20’’; reports, and other information are with the Portfolio Manager’s o. In Instruction 2 to paragraph (c) of available by E-mail request. management of the Fund’s investments, newly redesignated Item 27, revising the * * * * * on the one hand, and the investments of reference ‘‘Item 19(c)’’ to read ‘‘Item the other accounts included in response 20(c)’’; Item 5. Management, Organization, and to paragraph (a)(2) of this Item, on the p. In paragraph (b)(7)(ii)(B) of newly Capital Structure other. This description would include, redesignated Item 22, revising the (a) * * * for example, conflicts between the reference ‘‘Item 20(b)(1)’’ to read ‘‘Item (2) Portfolio Manager. State the name, investment strategy of the Fund and the 21(b)(1)’’; title, and length of service of the person investment strategy of other accounts q. In Instruction to paragraph (c)(1)(ii) or persons employed by or associated managed by the Portfolio Manager and of newly redesignated Item 22, revising with the Fund or an investment adviser conflicts in allocation of investment

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opportunities between the Fund and Portfolio Manager identified in response determine, any compensation received other accounts managed by the Portfolio to Item 5(a)(2). For each type of by the Portfolio Manager from the Fund, Manager. Include a description of the compensation (e.g., salary, bonus, the Fund’s investment adviser, or any policies and procedures used by the deferred compensation, retirement plans other source with respect to Fund or the Fund’s adviser to address and arrangements), include a management of the Fund and any other any such conflicts. description of the criteria on which that accounts included in the response to Instructions: type of compensation is based, for paragraph (a)(2) of this Item. This 1. Information should be provided as example, whether compensation is description should clearly disclose any of the end of the Fund’s most recently fixed, whether compensation is based differences between the method used to completed fiscal year, except that, in the on Fund pre- or after-tax performance determine the Portfolio Manager’s case of an initial registration statement over a certain time period, and whether compensation with respect to the Fund or an update to the Fund’s registration compensation is based on the value of and other accounts, e.g., if the Portfolio statement that discloses a new Portfolio assets held in the Fund’s portfolio. Manager receives part of an advisory fee Manager, information with respect to Instructions: that is based on performance with any newly identified Portfolio Manager 1. Information should be provided as respect to some accounts but not the should be provided as of the most recent of the end of the Fund’s most recently Fund, this should be disclosed. practicable date. Disclose the date as of completed fiscal year, except that, in the (c) Ownership of Securities. For each which the information is provided. case of an initial registration statement Portfolio Manager identified in response 2. If a committee, team, or other group or an update to the Fund’s registration to Item 5(a)(2), furnish the information of persons that includes the Portfolio statement that discloses a new Portfolio required by the following table as to Manager is jointly and primarily Manager, information with respect to each class of securities owned responsible for the day-to-day any newly identified Portfolio Manager beneficially or of record by the Portfolio management of the portfolio of an should be provided as of the most recent Manager or his immediate family account, the account should be included practicable date. Disclose the date as of members in: in responding to paragraph (a) of this which the information is provided. (i) The Fund; Item. 2. Compensation includes, without (ii) Accounts included in the response 3. A Fund may satisfy the requirement limitation, salary, bonus, deferred to paragraph (a)(2) of this Item; and to provide a description of the policies compensation, and pension and (iii) Any other account, including an and procedures used by it or the adviser retirement plans and arrangements, investment company, managed by an to address conflicts of interest by whether the compensation is cash or investment adviser of the Fund, or by including a copy of the policies and non-cash. The value of compensation is any person directly or indirectly procedures themselves. not required to be disclosed under this controlling, controlled by, or under (b) Compensation. Describe the Item. common control with an investment structure of, and the method used to 3. Include a description of the adviser or principal underwriter of the determine, the compensation of each structure of, and the method used to Fund:

(1) (2) (3) (4)

Name of Portfolio Manager Investment Company or Account Title of Class Dollar Range of Securities in the Investment Company or Account

Instructions: adoptive children); and any dependent ‘‘Items 4.1 or 23’’ to read ‘‘Items 4.1 or (1) Information should be provided as of the person, as defined in section 152 24’’; of the end of the Fund’s most recently of the Internal Revenue Code (26 U.S.C. g. In paragraph F of the General completed fiscal year, except that, in the 152). Instructions, revising the reference case of an initial registration statement (5) In disclosing the dollar range of ‘‘Items 4.2, 8.6.c or 23’’ to read ‘‘Items or an update to the Fund’s registration securities owned by a Portfolio Manager 4.2, 8.6.c or 24’’; statement that discloses a new Portfolio and his immediate family members in h. In paragraph F of the General Manager, information with respect to column (4), use the following ranges: Instructions, revising the reference any newly identified Portfolio Manager none, $1–$10,000, $10,001–$50,000, ‘‘Items 4.1, 4.2, 8.6.c or 23’’ to read should be provided as of the most recent $50,001–$100,000, $100,001-$500,000, ‘‘Items 4.1, 4.2, 8.6.c or 24’’; practicable date. Specify the valuation $500,001-$1,000,000, or over i. In paragraph F of the General date by footnote or otherwise. $1,000,000. Instructions, revising the reference (2) An individual is a ‘‘beneficial * * * * * ‘‘Item 24.1’’ to read ‘‘Item 25.1’’; owner’’ of a security if he is a 7. Form N–2 (referenced in §§ 239.14 j. In paragraph G.3 of the General ‘‘beneficial owner’’ under either rule and 274.11a–1) is amended by: Instructions, revising the reference 13d–3 or rule 16a–1(a)(2) under the a. Revising Item 1.1.d; ‘‘Items 24.2.h, 24.2.l, 24.2.n, and 24.2.o’’ Exchange Act (17 CFR 240.13.d–3 or b. Revising Item 9.1.c and the to read ‘‘Items 25.2.h, 25.2.l, 25.2.n, and 240.16a–1(a)(2)). Instructions to Item 9.1.c; 25.2.o’’; (3) Provide the information required c. Redesignating Items 21 through 33 k. In the first paragraph of General by the table on an aggregate basis for as Items 22 through 34; Instructions for Part B: Statement of each Portfolio Manager and his d. Adding new Item 21; Additional Information, revising the immediate family members. e. In paragraph E.3 of the General reference ‘‘Item 33.6’’ to read ‘‘Item (4) For purposes of this Item, the term Instructions, revising the reference 34.6’’; ‘‘immediate family member’’ means a ‘‘Item 33.4’’ to read ‘‘Item 34.4’’; l. In Instruction 6 to Item 1.1.g, person’s spouse; child residing in the f. In paragraph F of the General revising the reference ‘‘Item 26’’ to read person’s household (including step and Instructions, revising the reference ‘‘Item 27’’;

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m. In Instruction 3 to Item 8.6.c, c. Portfolio Management: The name, Manager and conflicts in allocation of revising the reference ‘‘Item 23’’ to read title, and length of service of the person investment opportunities between the ‘‘Item 24’’; or persons employed by or associated Registrant and other accounts managed n. In Instruction 2 to Item 10.6, with the Registrant or an investment by the Portfolio Manager. Include a revising the reference ‘‘Item 24.2.n’’ to adviser of the Registrant, if any, who are description of the policies and read ‘‘Item 25.2n’’; primarily responsible for the day-to-day procedures used by the Registrant or the o. In newly redesignated Item 24.1.b, management of the Registrant’s portfolio Registrant’s adviser to address any such revising the reference ‘‘Item 23’’ to read (‘‘Portfolio Manager’’). Also state each conflicts. ‘‘Item 24’’; Portfolio Manager’s business experience Instructions: p. In newly redesignated Item 25.2.o, during the past 5 years. Include a 1. Information should be provided as revising the reference ‘‘Items 8.6 or 23’’ statement, adjacent to the foregoing of the end of the Registrant’s most to read ‘‘Items 8.6 or 24’’; and disclosure, that the SAI provides recently completed fiscal year, except q. In Instruction 2 to newly additional information about the that, in the case of an initial registration redesignated Item 25, revising the Portfolio Manager’s(s’) compensation, statement or an update to the reference ‘‘Items 8.6 or 23’’ to read other accounts managed by the Portfolio Registrant’s registration statement that ‘‘Items 8.6 or 24’’. Manager(s), and the Portfolio discloses a new Portfolio Manager, The additions and revisions are to Manager’s(s’) ownership of securities in information with respect to any newly read as follows: the Registrant and other accounts identified Portfolio Manager should be Form N–2 managed by the Registrant’s investment provided as of the most recent adviser(s) or the Portfolio Manager(s). practicable date. Disclose the date as of * * * * * Instruction: which the information is provided. Item 1. Outside Front Cover If a committee, team, or other group 2. If a committee, team, or other group of persons associated with an of persons that includes the Portfolio 1. * * * Manager is jointly and primarily d. A statement that (A) the prospectus investment adviser of the Registrant is jointly and primarily responsible for the responsible for the day-to-day sets forth concisely the information management of the portfolio of an about the Registrant that a prospective day-to-day management of the Registrant’s portfolio, information in account, the account should be included investor ought to know before investing; in responding to Item 21.1. (B) the prospectus should be retained response to this Item is required for each member of such committee, team, 3. A Registrant may satisfy the for future reference; and (C) additional requirement to provide a description of information about the Registrant has or other group. For each such member, provide a brief description of the the policies and procedures used by it been filed with the Commission and is or the adviser to address conflicts of available upon written or oral request person’s role on the committee, team, or other group (e.g., lead member). interest by including a copy of the and without charge (This statement policies and procedures themselves. should explain how to obtain the SAI, * * * * * 2. Compensation: Describe the whether any of it has been incorporated Item 21. Portfolio Managers structure of, and the method used to by reference into the prospectus, and determine, the compensation of each where the table of contents of the SAI 1. Other Accounts Managed: If a Portfolio Manager identified in response Portfolio Manager identified in response appears in the prospectus. This to Item 9.1.c. For each type of statement should also explain how to to Item 9.1.c is primarily responsible for the day-to-day management of the compensation (e.g., salary, bonus, obtain the Registrant’s annual and semi- deferred compensation, retirement plans annual reports to shareholders. Provide portfolio of any other account, provide the following information: and arrangements), include a a toll-free (or collect) telephone number description of the criteria on which that for investors to call: To request the SAI; a. The Portfolio Manager’s name; b. The number of other accounts type of compensation is based, for to request the Registrant’s annual report; managed within each of the following example, whether compensation is to request the Registrant’s semi-annual categories and the total assets in the fixed, whether compensation is based report; to request other information accounts managed within each category: on the Registrant’s pre- or after-tax about the Registrant; and to make (1) Registered investment companies; performance over a certain time period, shareholder inquiries. Also state (2) Other investment companies; and whether compensation is based on whether the Registrant makes available (3) Other pooled investment vehicles; the value of assets held in the its SAI and annual and semi-annual and Registrant’s portfolio. reports, free of charge, on or through the (4) Other accounts. Instructions: Registrant’s Web site at a specified c. For each of the categories in Item 1. Information should be provided as Internet address. If the Registrant does 21.1.b., the number of accounts and the of the end of the Registrant’s most not make its SAI and shareholder total assets in the accounts with respect recently completed fiscal year, except reports available in this manner, to which the advisory fee is based on that, in the case of an initial registration disclose the reasons why it does not do the performance of the account; and statement or an update to the so (including, where applicable, that the d. A description of any conflicts of Registrant’s registration statement that Registrant does not have an Internet interest that may arise in connection discloses a new Portfolio Manager, Web site.) Also include the information with the Portfolio Manager’s information with respect to any newly that the Commission maintains an management of the Registrant’s identified Portfolio Manager should be Internet Web site (http://www.sec.gov) investments, on the one hand, and the provided as of the most recent that contains the SAI, material investments of the other accounts practicable date. Disclose the date as of incorporated by reference, and other included in response to Item 21.1b., on which the information is provided. information regarding registrants.); the other. This description would 2. Compensation includes, without * * * * * include, for example, conflicts between limitation, salary, bonus, deferred the investment strategy of the Registrant compensation, and pension and Item 9. Management and the investment strategy of other retirement plans and arrangements, 1. * * * accounts managed by the Portfolio whether the compensation is cash or

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non-cash. The value of compensation is determine the Portfolio Manager’s Manager or his immediate family not required to be disclosed under this compensation with respect to the members in: Item. Registrant and other accounts, e.g., if the a. The Registrant; 3. Include a description of the Portfolio Manager receives part of an structure of, and the method used to advisory fee that is based on b. Accounts included in the response determine, any compensation received performance with respect to some to Item 21.1.b.; by the Portfolio Manager from the accounts but not the Registrant, this c. Any other account, including an Registrant, the Registrant’s investment should be disclosed. investment company, managed by an adviser, or any other source with respect 3. Ownership of Securities: For each investment adviser of the Registrant, or to management of the Registrant and Portfolio Manager identified in response by any person directly or indirectly any other accounts included in the to Item 9.1.c, furnish the information controlling, controlled by, or under response to Item 21.1.b. This required by the following table as to common control with an investment description should clearly disclose any each class of securities owned adviser or principal underwriter of the differences between the method used to beneficially or of record by the Portfolio Registrant:

(1) (2) (3) (4)

Name of Portfolio Investment Company or Account Title of Class Dollar Range of Securities in the Manager Investment Company or Account

Instructions: e. In paragraph G of the General prospectus. This statement should also 1. Information should be provided as Instructions, revising the reference explain how to obtain the Registrant’s of the end of the Registrant’s most ‘‘Items 4(a) or 27’’ to read ‘‘Items 4(a) or annual and semi-annual reports to recently completed fiscal year, except 28’’; shareholders. Provide a toll-free (or that, in the case of an initial registration f. In paragraph G(2) of the General collect) telephone number for investors statement or an update to the Instructions, revising the reference to call: to request the SAI; to request the Registrant’s registration statement that ‘‘Item 28(a)’’ to read ‘‘Items 29(a)’’; Registrant’s annual report; to request the discloses a new Portfolio Manager, g. In paragraph H(3) of the General Registrant’s semi-annual report; to information with respect to any newly Instructions, revising the reference request other information about the identified Portfolio Manager should be ‘‘Item 28(b)(5), (12), (13), and (14)’’ to Registrant; and to make shareholder provided as of the most recent read ‘‘Items 29(b)(5), (12), (13), and inquiries. Also state whether the practicable date. Specify the valuation (14)’’; Registrant makes available its SAI and date by footnote or otherwise. h. In Instruction 3(d) of Item 4(b), annual and semi-annual reports, free of 2. An individual is a ‘‘beneficial revising the reference ‘‘Item 27’’ to read charge, on or through the Registrant’s owner’’ of a security if he is a ‘‘Item 28’’; Web site at a specified Internet address. ‘‘beneficial owner’’ under either rule i. In Instruction 2 of Item 9, revising If the Registrant does not make its SAI 13d–3 or rule 16a–1(a)(2) under the the reference ‘‘Item 26’’ to read ‘‘Item and shareholder reports available in this Exchange Act (17 CFR 240.13.d–3 or 27’’; manner, disclose the reasons why it 240.16a–1(a)(2)). j. In newly redesignated Item does not do so (including, where 3. Provide the information required by 29(b)(14), revising the reference ‘‘Item applicable, that the Registrant does not the table on an aggregate basis for each 27’’ to read ‘‘Item 28’’; and have an Internet Web site.) Also include Portfolio Manager and his immediate k. In Instruction 2 of newly the information that the Commission family members. redesignated Item 29, revising the maintains an Internet Web site (http:// 4. For purposes of this Item, the term reference ‘‘Item 27’’ to read ‘‘Item 28’’. www.sec.gov) that contains the SAI, ‘‘immediate family member’’ means a The additions and revisions are to material incorporated by reference, and person’s spouse; child residing in the read as follows: other information regarding registrants.); person’s household (including step and Form N–3 * * * * * adoptive children); and any dependent * * * * * Item 6. Management of the person, as defined in section 152 of the Internal Revenue Code (26 U.S.C. Item 1. Cover Page * * * * * (e) the name, title, and length of 152). (a) * * * service of the person or persons 5. In disclosing the dollar range of (vi) a statement or statements that (A) employed by or associated with the securities owned by a Portfolio Manager the prospectus sets forth information Registrant or an investment adviser of and his immediate family members in about the Registrant that a prospective the Registrant, if any, who are primarily column (4), use the following ranges: investor ought to know before investing; responsible for the day-to-day none, $1–$10,000, $10,001–$50,000, (B) the prospectus should be retained management of the Registrant’s portfolio $50,001–$100,000, $100,001–$500,000, for future reference; and (C) additional (‘‘Portfolio Manager’’). Also state each $500,001–$1,000,000, or over information about the Registrant has Portfolio Manager’s business experience $1,000,000. been filed with the Commission and is during the past 5 years. Include a * * * * * available upon written or oral request statement, adjacent to the foregoing 8. Form N–3 (referenced in §§ 239.17a and without charge (This statement disclosure, that the SAI provides and 274.11b) is amended by: should explain how to obtain the additional information about the a. Revising Item 1(a)(vi); Statement of Additional Information Portfolio Manager’s(s’) compensation, b. Adding new Item 6(e); (‘‘SAI’’), whether any of it has been other accounts managed by the Portfolio c. Redesignating Items 22 through 37 incorporated by reference into the Manager(s), and the Portfolio as Items 23 through 38; prospectus, and where the table of Manager’s(s’) ownership of securities in d. Adding new Item 22; contents of the SAI appears in the the Registrant and other accounts

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managed or sponsored by the Insurance strategy of the Registrant and the recently completed fiscal year, except Company, the Registrant’s investment investment strategy of other accounts that, in the case of an initial registration adviser(s), or the Portfolio Manager(s). managed by the Portfolio Manager and statement or an update to the Instructions: conflicts in allocation of investment Registrant’s registration statement that opportunities between the Registrant discloses a new Portfolio Manager, 1. This requirement does not apply to and other accounts managed by the information with respect to any newly a Registrant that holds itself out as a Portfolio Manager. Include a description identified Portfolio Manager should be money market fund and meets the of the policies and procedures used by provided as of the most recent maturity, quality, and diversification the Registrant or the Registrant’s adviser practicable date. Disclose the date as of requirements of rule 2a–7 [17 CFR to address any such conflicts. which the information is provided. 270.2a–7]. 2. If a committee, team, or other group Instructions: 2. Compensation includes, without of persons associated with an 1. Information should be provided as limitation, salary, bonus, deferred investment adviser of the Registrant is of the end of the Registrant’s most compensation, and pension and jointly and primarily responsible for the recently completed fiscal year, except retirement plans and arrangements, day-to-day management of the that, in the case of an initial registration whether the compensation is cash or Registrant’s portfolio, information in statement or an update to the non-cash. The value of compensation is response to this Item is required for Registrant’s registration statement that not required to be disclosed under this each member of such committee, team, discloses a new Portfolio Manager, Item. or other group. For each such member, information with respect to any newly 3. Include a description of the provide a brief description of the identified Portfolio Manager should be structure of, and the method used to person’s role on the committee, team, or provided as of the most recent determine, any compensation received other group (e.g., lead member). practicable date. Disclose the date as of by the Portfolio Manager from the which the information is provided. * * * * * Registrant, the Registrant’s investment 2. If a committee, team, or other group adviser, or any other source with respect Item 22. Portfolio Managers of persons that includes the Portfolio to management of the Registrant and Manager is jointly and primarily (a) If a Portfolio Manager identified in any other accounts included in the responsible for the day-to-day response to Item 6(e) is primarily response to paragraph (a)(ii) of this Item. management of the portfolio of an responsible for the day-to-day This description should clearly disclose account, the account should be included management of the portfolio of any any differences between the method in responding to paragraph (a) of this other account, provide the following used to determine the Portfolio Item. information: Manager’s compensation with respect to (i) The Portfolio Manager’s name; 3. A Registrant may satisfy the the Registrant and other accounts, e.g., (ii) The number of other accounts requirement to provide a description of if the Portfolio Manager receives part of managed within each of the following the policies and procedures used by it an advisory fee that is based on categories and the total assets in the or the adviser to address conflicts of performance with respect to some accounts managed within each category: interest by including a copy of the accounts but not the Registrant, this (A) Registered investment companies; policies and procedures themselves. should be disclosed. (b) Describe the structure of, and the (B) Other investment companies; (c) For each Portfolio Manager method used to determine, the (C) Other pooled investment vehicles; identified in response to Item 6(e), compensation of each Portfolio Manager and furnish the information required by the identified in response to Item 6(e). For (D) Other accounts. following table as to each class of (iii) For each of the categories in each type of compensation (e.g., salary, securities owned beneficially or of paragraph (a)(ii) of this Item, the bonus, deferred compensation, record by the Portfolio Manager or his number of accounts and the total assets retirement plans and arrangements), immediate family members in: in the accounts with respect to which include a description of the criteria on the advisory fee is based on the which that type of compensation is (i) The Registrant; performance of the account; and based, for example, whether (ii) Accounts included in the response (iv) A description of any conflicts of compensation is fixed, whether to paragraph (a)(ii) of this Item; and interest that may arise in connection compensation is based on the (iii) Any other account, including an with the Portfolio Manager’s Registrant’s pre- or after-tax investment company, managed or management of the Registrant’s performance over a certain time period, sponsored by the Insurance Company or investments, on the one hand, and the and whether compensation is based on an investment adviser of the Registrant, investments of the other accounts the value of assets held in the or by any person directly or indirectly included in response to paragraph (a)(ii) Registrant’s portfolio. controlling, controlled by, or under of this Item, on the other. This Instructions: common control with the Insurance description would include, for example, 1. Information should be provided as Company or an investment adviser or conflicts between the investment of the end of the Registrant’s most principal underwriter of the Registrant:

(1) (2) (3) (4)

Name of Portfolio Manager Investment Company or Account Title of Class Dollar Range of Securities in the Investment Company or Account

Instructions: that, in the case of an initial registration information with respect to any newly 1. Information should be provided as statement or an update to the identified Portfolio Manager should be of the end of the Registrant’s most Registrant’s registration statement that provided as of the most recent recently completed fiscal year, except discloses a new Portfolio Manager,

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practicable date. Specify the valuation jointly and primarily responsible for the 3. A registrant may satisfy the date by footnote or otherwise. day-to-day management of the requirement to provide a description of 2. An individual is a ‘‘beneficial registrant’s portfolio, information in the policies and procedures used by it owner’’ of a security if he is a response to this Item is required for or the adviser to address conflicts of ‘‘beneficial owner’’ under either rule each member of such committee, team, interest by including a copy of the 13d–3 or rule 16a–1(a)(2) under the or other group. For each such member, policies and procedures themselves. Exchange Act (17 CFR 240.13.d–3 or provide a brief description of the (3) Describe the structure of, and the 240.16a–1(a)(2)). person’s role on the committee, team, or method used to determine, the 3. Provide the information required by other group (e.g., lead member). compensation of each Portfolio Manager the table on an aggregate basis for each (2) If a Portfolio Manager identified in identified in response to paragraph Portfolio Manager and his immediate response to paragraph (a)(1) of this Item (a)(1) of this Item. For each type of family members. is primarily responsible for the day-to- compensation (e.g., salary, bonus, 4. For purposes of this Item, the term day management of the portfolio of any deferred compensation, retirement plans ‘‘immediate family member’’ means a other account, provide the following and arrangements), include a person’s spouse; child residing in the information: description of the criteria on which that person’s household (including step and (i) The Portfolio Manager’s name; type of compensation is based, for adoptive children); and any dependent (ii) The number of other accounts example, whether compensation is of the person, as defined in section 152 managed within each of the following fixed, whether compensation is based of the Internal Revenue Code (26 U.S.C. categories and the total assets in the on the registrant’s pre- or after-tax 152). accounts managed within each category: performance over a certain time period, 5. In disclosing the dollar range of (A) Registered investment companies; and whether compensation is based on securities owned by a Portfolio Manager (B) Other investment companies; the value of assets held in the and his immediate family members in (C) Other pooled investment vehicles; registrant’s portfolio. column (4), use the following ranges: and Instructions to paragraph (a)(3): none, $1–$10,000, $10,001–$50,000, (D) Other accounts. 1. Information should be provided as $50,001–$100,000, $100,001–$500,000, (iii)For each of the categories in of the end of the registrant’s most $500,001–$1,000,000, or over paragraph (a)(2)(ii) of this Item, the recently completed fiscal year, except $1,000,000. number of accounts and the total assets that, in the case of any newly identified * * * * * in the accounts with respect to which Portfolio Manager, information should 9. Form N–CSR (referenced in the advisory fee is based on the be provided as of the most recent §§ 249.331 and 274.128) is amended by: performance of the account; and practicable date. Disclose the date as of a. Revising the reference ‘‘11(a)(1)’’ in (iv) A description of any conflicts of which the information is provided. General Instruction D and paragraphs (c) interest that may arise in connection 2. Compensation includes, without and (f)(1) of Item 2 to read ‘‘12(a)(1)’’; with the Portfolio Manager’s limitation, salary, bonus, deferred b. Redesignating Items 8 through 11 as management of the registrant’s compensation, and pension and Items 9 through 12; and investments, on the one hand, and the retirement plans and arrangements, c. Adding new Item 8. investments of the other accounts whether the compensation is cash or The additions and revisions are to included in response to paragraph non-cash. The value of compensation is read as follows: (a)(2)(ii) of this Item, on the other. This not required to be disclosed under this Form N–CSR description would include, for example, Item. * * * * * conflicts between the investment 3. Include a description of the strategy of the registrant and the structure of, and the method used to Item 8. Portfolio Managers of Closed- investment strategy of other accounts determine, any compensation received End Management Investment managed by the Portfolio Manager and by the Portfolio Manager from the Companies. conflicts in allocation of investment registrant, the registrant’s investment (a) If the registrant is a closed-end opportunities between the registrant and adviser, or any other source with respect management investment company that other accounts managed by the Portfolio to management of the registrant and any is filing an annual report on this Form Manager. Include a description of the other accounts included in the response N–CSR, provide the following policies and procedures used by the to paragraph (a)(2)(ii) of this Item. This information: registrant or the registrant’s adviser to description should clearly disclose any (1) State the name, title, and length of address any such conflicts. differences between the method used to service of the person or persons Instructions to paragraph (a)(2): determine the Portfolio Manager’s employed by or associated with the 1. Information should be provided as compensation with respect to the registrant or an investment adviser of of the end of the registrant’s most registrant and other accounts, e.g., if the the registrant, if any, who are primarily recently completed fiscal year, except Portfolio Manager receives part of an responsible for the day-to-day that, in the case of any newly identified advisory fee that is based on management of the registrant’s portfolio Portfolio Manager, information should performance with respect to some (‘‘Portfolio Manager’’). Also state each be provided as of the most recent accounts but not the registrant, this Portfolio Manager’s business experience practicable date. Disclose the date as of should be disclosed. during the past 5 years. which the information is provided. (4) For each Portfolio Manager Instructions to paragraph (a)(1): 2. If a committee, team, or other group identified in response to paragraph 1. Information should be provided as of persons that includes the Portfolio (a)(1) of this Item, furnish the of the date of filing of the report. Manager is jointly and primarily information required by the following Disclose the date as of which the responsible for the day-to-day table as to each class of securities information is provided. management of the portfolio of an owned beneficially or of record by the 2. If a committee, team, or other group account, the account should be included Portfolio Manager or his immediate of persons associated with an in responding to paragraph (a)(2) of this family members in: investment adviser of the registrant is Item. (i) The registrant;

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(ii) Accounts included in the response investment adviser of the registrant, or common control with an investment to paragraph (a)(2)(ii) of this Item; by any person directly or indirectly adviser or principal underwriter of the (iii) Any other account, including an controlling, controlled by, or under registrant: investment company, managed by an

(1) (2) (3) (4)

Name of Portfolio Manager Investment Company or Account Title of Class Dollar Range of Securities in the Investment Company or Account

Instructions to paragraph (a)(4): person’s spouse; child residing in the Item in the registrant’s most recent 1. Information should be provided as person’s household (including step and annual report on Form N–CSR. In of the end of the registrant’s most adoptive children); and any dependent addition, for any newly identified recently completed fiscal year, except of the person, as defined in section 152 Portfolio Manager, provide the that, in the case of any newly identified of the Internal Revenue Code (26 U.S.C. information required by paragraph (a)(1) Portfolio Manager, information should 152). of this Item as of the date of filing of the be provided as of the most recent 5. In disclosing the dollar range of report and the information required by practicable date. Specify the valuation securities owned by a Portfolio Manager paragraphs (a)(2), (a)(3), and (a)(4) of date by footnote or otherwise. and his immediate family members in this Item as of the most recent 2. An individual is a ‘‘beneficial column (4), use the following ranges: practicable date. owner’’ of a security if he is a none, $1–$10,000, $10,001–$50,000, ‘‘beneficial owner’’ under either rule $50,001–$100,000, $100,001–$500,000, * * * * * 13d–3 or rule 16a–1(a)(2) under the $500,001–$1,000,000, or over Dated: March 11, 2004. Exchange Act (17 CFR 240.13.d–3 or $1,000,000. By the Commission. 240.16a–1(a)(2)). (b) If the registrant is a closed-end J. Lynn Taylor, 3. Provide the information required by management investment company that the table on an aggregate basis for each is filing a report on this Form N–CSR Assistant Secretary. Portfolio Manager and his immediate other than an annual report, disclose [FR Doc. 04–5951 Filed 3–16–04; 8:45 am] family members. any change, as of the date of filing, in BILLING CODE 8010–01–P 4. For purposes of this Item, the term any of the Portfolio Managers identified ‘‘immediate family member’’ means a in response to paragraph (a)(1) of this

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Part IV

Environmental Protection Agency Pesticides; Fees and Decision Times for Registration Applications; Notice

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ENVIRONMENTAL PROTECTION assist you and others in determining associated tolerance actions. Under that AGENCY whether this action might apply to system, fees will be charged for covered certain entities. To determine whether applications received on or after March [OPP–2004–0060; FRL–7348–2] you or your business may be affected by 23, 2004, and for certain pending Pesticides; Fees and Decision Times this action, you should carefully applications received before that date. for Registration Applications examine the provisions in Unit V. of EPA is required to make a determination this document. If you have any on the application within the decision AGENCY: Environmental Protection questions regarding the applicability of times specified. The fee system is Agency (EPA). this action to a particular entity, consult authorized until September 30, 2010, ACTION: Notice. the person listed under FOR FURTHER although the decision times under the INFORMATION CONTACT. system do not apply to applications SUMMARY: EPA is publishing a list of received after September 30, 2008. pesticide registration service fees and B. How Can I Get Copies of this Under new section 33(b)(3) of FIFRA, decision times applicable to specified Document and Other Related EPA is required to publish a schedule of pesticide applications and tolerance Information? the fees and decision times for review actions. This notice further provides 1. Docket. EPA has established an of a covered application, which initial guidance on submission of the official public docket for this action schedule is to be the same as that required fees. The registration service under docket identification (ID) number published in the Congressional Record fees will be used to supplement funding OPP–2004–0060. The official public of September 17, 2003, pages 11631 for expeditious review of the specified docket consists of the documents through 11633. Today’s notice publishes applications and their associated specifically referenced in this action, that schedule, reformatted for clarity tolerance actions. This fee schedule any public comments received, and and understanding. becomes effective on March 23, 2004, other information related to this action. The fee schedules in this notice for all covered applications received on Although a part of the official docket, establish fees and decision times for 5 or after that date, and for certain the public docket does not include years; however, under section 33(b)(6) pending applications received before Confidential Business Information (CBI) of FIFRA, the fee amounts will be that date. Applications not covered by or other information whose disclosure is increased as of October 1, 2005 by 5%. the fee schedule are not subject to the restricted by statute. The official public Furthermore, in FY 2009, the fees will fee requirement or the decision review docket is the collection of materials that be reduced by 40% and in FY 2010, the times. The publication of this fee is available for public viewing at the fees will be reduced by 70%. EPA will schedule is required by section 33(b)(3) Public Information and Records issue appropriate notices in the Federal of the Federal Insecticide, Fungicide Integrity Branch (PIRIB), Rm. 119, Register publishing revised schedules. Crystal Mall #2, 1921 Jefferson Davis and Rodenticide Act (FIFRA), as III. Transition Provisions amended by the Consolidated Hwy., Arlington, VA. This docket Appropriations Act of 2004. facility is open from 8:30 a.m. to 4 p.m., A. New Applications Received on or FOR FURTHER INFORMATION CONTACT: Jean Monday through Friday, excluding legal After March 23, 2004 M. Frane, Field and External Affairs holidays. The docket telephone number Under section 33(b)(1) of FIFRA, the Division (7506C), Office of Pesticide is (703) 305–5805. fees apply to each new application (or Programs, Environmental Protection 2. Electronic access. You may access other action specified in this notice) Agency, 1200 Pennsylvania Ave., NW., this Federal Register document received by EPA on or after March 23, Washington, DC 20460–0001; telephone electronically through the EPA Internet 2004. If accompanied by a petition for number: (703) 305–5944; fax number: under the ‘‘Federal Register’’ listings at tolerance, no tolerance fee under 40 CFR (703) 305–5884; e-mail address: http://www.epa.gov/fedrgstr/. An 180.33 is required. [email protected]. electronic version of the public docket is available through EPA’s electronic B. Pending Applications Received SUPPLEMENTARY INFORMATION: public docket and comment system, Before March 23, 2004 I. General Information EPA Dockets. You may use EPA Dockets 1. Application for a new active at http://www.epa.gov/edocket/ to view ingredient. (i) Applications for new A. Does this Action Apply to Me? public comments, access the index covered active ingredients received by You may be affected by this action if listing of the contents of the official EPA before March 23, 2004, but that are you register pesticide products, or public docket, and to access those not on the FY 2003 OPP Registration engage in animal or crop production, documents in the public docket that are Division Work Plan are subject to the food processing, or public health available electronically. Although not fees in the tables in this notice. Any fee activities that use pesticides. Potentially all docket materials may be available previously paid in conjunction with the affected entities include, but are not electronically, you may still access any submission of a petition under section limited to: of the publicly available docket 408(m) of the Federal Food, Drug and • Crop production (NAICS 111) materials through the docket facility Cosmetic Act and 40 CFR 180.33 will be • Animal production (NAICS 112) identified in Unit I.B.1. Once in the credited toward the registration service • Food processing (NAICS 3110) system, select ‘‘search,’’ then key in the fee specified in this notice. Readers may • Pesticide manufacturers (NAICS appropriate docket ID number. access the Registration Division 32532) workplan at ww.epa.gov/opprd001/ II. Background This listing is not intended to be workplan. exhaustive, but rather provides a guide The Consolidated Appropriations Act (ii) Applications for a new active for readers regarding entities likely to be of 2004, signed by President Bush on ingredient received by EPA before affected by this action. Other types of January 23, 2004, established a new March 23, 2004, and that are on the FY entities not listed in this unit could also section 33 of FIFRA, which establishes 2003 OPP Work Plan are not required to be affected. The North American a registration service fee system for pay the fee in the tables in this notice. Industrial Classification System applications for specified pesticide 2. All other pending applications. (NAICS) codes have been provided to registration, amended registration, and Pending applications other than those

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for a new active ingredient, i.e., all After receiving EPA’s according to the type of application applications for existing active acknowledgment of the application and being submitted, the use patterns ingredients, are not required to pay a its unique identification number, the involved, or, in some cases, upon the fee. applicant may submit payment of the type of pesticide that is the subject of fee to the address provided in the the application. The categories of fee IV. How to Pay Fees acknowledgment. All payments would differ by Division. Further guidance will Fees apply to covered applications be in United States currency by check, be issued on the various categories in and must be submitted. The majority of bank draft, or money order drawn to the this fee schedule to improve covered actions are new applications or order of the Environmental Protection descriptions and facilitate proper requests; the remainder are applications Agency, and would be required to identification for the application submitted before March 23, 2004. EPA include the unique identifying number process. Not all application types are is considering different procedures for assigned to the application. covered by, or subject to, the fee system. each. The Treasury Department is currently Because applications and fees are sent upgrading its system for accepting B. Fee Schedule and Decision Review to different addresses, there is potential electronic payment, and will not accept Times for confusion and delay if clear new electronic fund transactions at this The table in the Congressional Record procedures for submission, time. When this situation is resolved, is presented as a single table for all categorization, and verification are not EPA will issue guidance regarding Divisions and actions. In issuing today’s established. EPA intends that the submission of payments via electronic notice, EPA has reformatted the payment and verification of payment fund transfer. information to be more user-friendly. process be as expeditious as possible so EPA has divided the single table from that Agency review may begin (or B. Required Fees for New Active the Congressional Record into 11 tables, continue). To facilitate this process, Ingredients Not on the FY 03 Work Plan organized by OPP Division and by type EPA is issuing the following guidance Applications for new active of application or pesticide subject to the regarding submission of covered ingredients submitted prior to March 23, fee. Unit VI. presents fee tables for the applications and associated fee 2004, and not on OPP’s FY 2003 Work Registration Division (RD) (5 tables), payments and waiver requests. Plan are subject to fees. EPA would Unit VII. presents fee tables for the A. Required Fees for New Covered identify all such applications. EPA Antimicrobials Division (AD) (3 tables), Applications would assign each of the applications to and Unit VIII. presents fee tables for the the appropriate fee category, and Biopesticides and Pollution Prevention The Agency is considering a two-step calculate the fee that is due. The amount Division (BPPD) (3 tables). process for new covered applications. of fee due would be calculated by Under section 33(f)(4) of FIFRA, the Under this process an application will identifying the appropriate fee amount decision review period for many first be submitted to the Agency and in the Fee Schedule and subtracting any applications commences within 21 days screened. EPA will then notify the previously submitted tolerance fees of EPA’s receipt of the application and applicant of the categorization of the from that amount. This amount may be fee. For the initial stages of application and the correct fee to be further reduced in proportion to the implementation, however, EPA intends transmitted to the Agency’s lockbox. amount of work that has been done on to exercise flexibility in terms of when Applications (or other type of request) the action prior to March 23, 2004. EPA’s review begins in relationship to would be submitted to the Agency, at EPA intends to notify each affected its receipt of the fee. the address given in Unit IX. The applicant, and provide instructions for applicant would identify the category submitting payment. number (1 through 90) that he believes C. How to Read the Tables applies to the action, explain why that V. Elements of the Fee Schedule 1. Each table consists of the following category applies, and specify the This unit explains how EPA has columns: amount of fee due for that particular organized the fee schedule required by • Column A numbers the fee action. These notations would be made the statute and how to read the fee categories. There are 90 categories in the comments section of the schedule tables, and provides a key to spread across the 3 Divisions. There are application form (EPA Form 8570–1), or the terminology published with the 37 RD categories, 20 AD categories and in a submittal letter. If the applicant is table in the Congressional Record. EPA’s 33 BPPD categories. For tracking applying for a fee waiver, the applicant organization and presentation of the fee purposes, OPP has numbered the 90 would provide sufficient documentation schedule information does not affect the categories in sequential order, beginning as described in section 33(b)(7) of categories of registration service fees, or with RD categories, followed by AD and FIFRA. The applicant would not send the structure or procedures for BPPD categories. This is a change from payment at the time of application. submitting applications or petitions for the sequence of the Congressional Upon receipt of application, EPA tolerance. Record. The categories are prefaced with would screen the application to a letter designation indicating which A. The Congressional Record Fee determine that the category is correct, Division of OPP is responsible for Schedule and would assign a unique applications in that category (R= identification number to each covered The fee schedule published in the Registration Division, A=Antimicrobials pesticide registration application for Congressional Record of September 17, Division, B=Biopesticides and Pollution which payment is expected. Within 3 2003, identifies the registration service Prevention Division). business days, EPA would notify the fees and decision times and is organized • Column A-1 cross-references the applicant of the unique identification according to the organizational units of Congressional Record category number number together with instructions for the Office of Pesticide Programs (OPP) for convenience. However, EPA will be submitting payment. This information within the Environmental Protection using the categories as numbered in would always be sent by mail and by Agency (EPA). Thereafter, the categories Column A in its tracking systems. either e-mail or fax at the applicant’s within the organizational unit sections • Column B describes the categories request. of the table are further categorized of action. The key in this unit is

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unchanged from that published in the GW—Ground Water Footnote 4—Example: Stacking PIP Congressional Record. Me-too product—A new product traits within a crop using traditional • Columns C through G list the registration of an already registered breeding techniques. decision times in months for each type active ingredient. of action for Fiscal Years 2004 PHI—Pre-Harvest Interval VI. Registration Division (RD) Fee (beginning on March 23, 2004) though PPE—Personal Protective Equipment Schedules 2008. The decision review periods in REI—Restricted Entry Interval the tables are based upon EPA fiscal The Registration Division of OPP is SAP—FIFRA Scientific Advisory responsible for the processing of years (FY), which run from October 1 Panel through September 30. pesticide applications and associated SW—Surface Water • Column H lists the registration tolerance petitions for pesticides that service fee for the action. 3. The following footnotes apply to are termed ‘‘conventional chemicals,’’ 2. The tables use a number of the tables: excluding pesticides intended for abbreviations and acronyms, statutory Footnote 1—All uses (food and non- antimicrobial uses. The term citations and other terminology that food) included in any original ‘‘conventional chemical’’ is a term of art may be unfamiliar to registrants and the application or petition for a new active that is intended to distinguish synthetic public. The following terms are defined ingredient or a first food use are covered chemicals from those that are of in footnotes to the Congressional Record by the base fee for that application. naturally occurring or non-synthetic table: Footnote 2—EPA-initiated origin, synthetic chemicals that are amendments shall not be charged fees. EUP—Experimental Use Permit (EUP) identical to naturally occurring Fast-track—An application that Footnote 3—Example: Transfer of chemicals and microbial pesticides. qualifies for expedited processing under existing PIP by traditional breeding, section 3(c)(3)(B)(i)(I) of FIFRA. such as from field corn to sweet corn.

TABLE 1.—REGISTRATION DIVISION: NEW ACTIVE INGREDIENTS

A A1 B C D E F G H

EPA No. CR No. Action Decision Time (months) Fee ($)

FY04 FY05 FY06 FY07 FY08

R1 56 Food use1 38 34 24 24 24 475,000

R2 57 Food use, reduced risk1 32 26 21 21 21 475,000

R3 58 Food use 38 34 24 24 24 525,000 Experimental Use Permit request submitted si- multaneously with application for registration1 (decision time for EUP and temporary tolerance same as #R4)

R4 59 Food use 32 28 18 18 18 350,000 Experimental Use Permit, with temporary toler- ance, submitted before application for registra- tion ($300K credited toward new AI registration)

R5 60 Food use 28 24 14 14 14 175,000 Submitted after an EUP1 (decision time begins after EUP and temporary tolerance are granted)

R6 61 Non-food use, outdoor1 32 28 21 21 21 330,000

R7 62 Non-food use, outdoor1 26 22 18 18 18 330,000 Reduced risk

R8 63 Non-food use, outdoor1 32 28 21 21 21 365,000 Experimental Use Permit request submitted si- multaneously with application for registration (decision time for EUP same as #R9)

R9 64 Non-food use, outdoor 27 23 16 16 16 245,000 Experimental Use Permit submitted before appli- cation for registration ($210K credited toward new AI registration)

R10 65 Non-food use, outdoor 24 20 12 12 12 120,000 Submitted after an EUP1 (decision time begins after EUP has been grant- ed)

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TABLE 1.—REGISTRATION DIVISION: NEW ACTIVE INGREDIENTS—Continued

A A1 B C D E F G H

R11 66 Non-food use, indoor1 30 26 20 20 20 190,000

R12 67 Non-food use, indoor1 26 22 17 17 17 190,000 Reduced risk

TABLE 2.—REGISTRATION DIVISION: NEW USES

A A1 B C D E F G H

EPA No. CR No. Action Decision Time (months) Fee ($)

FY04 FY05 FY06 FY07 FY08

R13 68 First food use 30 24 21 21 21 150,000 Indoor food/food handling1

R14 69 Additional food use 30 24 21 15 15 35,000 Indoor food/food handling

R15 70 First food use1 32 26 21 21 21 200,000

R16 71 First food use 28 22 18 18 18 200,000 Reduced risk1

R17 72 Each additional new food use 38 30 22 15 15 50,000

R18 73 Each additional new food use 36 28 20 12 12 50,000 Reduced risk

R19 74 Additional new food uses, bundled, 6 or more 38 30 22 15 15 300,000

R20 75 Additional new food uses, bundled, 6 or more 36 28 20 12 12 300,000 Reduced risk

R21 76 New food use 35 27 19 12 12 37,000 Experimental Use Permit and temporary toler- ance (no credit toward new use registration)

R22 77 New food use 8 8 6 6 6 15,000 Experimental Use Permit, crop destruct basis

R23 78 New use 28 24 20 15 15 20,000 Non-food, outdoor

R24 79 New use 26 22 18 12 12 20,000 Non-food, outdoor Reduced risk

R25 80 New use 8 8 6 6 6 15,000 Non-food, outdoor Experimental Use Permit (no credit toward new use registration)

R26 81 New use 24 18 12 12 12 10,000 Non-food, indoor

R27 82 New use 22 16 9 9 9 10,000 Non-food, indoor Reduced risk

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TABLE 3.—IMPORT TOLERANCES

A A1 B C D E F G H

EPA No. CR No. Action Decision Time (months) Fee ($)

FY04 FY05 FY06 FY07 FY08

R28 83 Import tolerance 38 30 21 21 21 250,000 New active ingredient or first food use1

R29 84 Import tolerance 38 30 22 15 15 50,000 Additional new food use

TABLE 4.—REGISTRATION DIVISION: NEW PRODUCTS

A A1 B C D E F G H

EPA No. CR No. Action Decision Time (months) Fee ($)

FY04 FY05 FY06 FY07 FY08

R30 85 New product 3 3 3 3 3 1,000 Me-too product Fast track

R31 86 New product 10 8 6 6 6 4,000 Non-fast track (includes reviews of product chemistry, acute toxicity, public health pest ef- ficacy)

R32 87 New product 16 14 12 12 12 10,000 Non-fast track, new physical form (excludes se- lective citations)

R33 88 New manufacturing use product 24 18 12 12 12 15,000 Old AI Selective citation

TABLE 5.—REGISTRATION DIVISION: AMENDMENTS TO REGISTRATION

A A1 B C D E F G H

EPA No. CR No. Action Decision Time (months) Fee ($)

FY04 FY05 FY06 FY07 FY08

R34 89 Non-fast-track (includes changes to pre- 6 5 4 4 4 3,000 cautionary label statements, source changes to an unregistered source)2

R35 90 Non-fast track (changes to REI, PPE, PHI rate 20 16 12 8 8 10,000 and number of applications, add aerial appli- cation, modify GW/SW advisory statement2

R36 91 Non-fast track, isomers 22 20 18 18 18 240,000

R37 92 Cancer reassessment, applicant-initiated 22 20 18 18 18 150,000

VII. Antimicrobials Division (AD) Fee intended for antimicrobial uses, that is, selected set of conventional chemicals Schedules uses that are defined under section intended for other uses, including most The Antimicrobials Division of OPP is 2(mm)(1)(A) of FIFRA, including wood preservatives and antifoulants. responsible for the processing of products for use against bacteria, The Antimicrobials Division fee tables pesticide applications and associated protozoa, non-agricultural fungi, and use the same terminology as listed in tolerances for conventional chemicals viruses. AD is also responsible for a Unit V.

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TABLE 6.—ANTIMICROBIALS DIVISION: NEW ACTIVE INGREDIENTS

A A1 B C D E F G H

EPA No. CR No. Action Decision Time (months) Fee ($)

FY04 FY05 FY06 FY07 FY08

A38 36 Food use, with exemption1 35 24 24 24 24 90,000

A39 37 Food use, with tolerance1 35 24 24 24 24 150,000

A40 38 Non-food use, outdoor FIFRA section 3(h) decision times 75,000 FIFRA section 2(mm) uses 1

A41 39 Non-food use, outdoor, other uses1 31 21 21 21 21 150,0000

A42 40 Non-food use, indoor FIFRA section 3(h) decision times 50,000 FIFRA section 2(mm) uses 1

A43 41 Non-food use, indoor, other uses1 29 20 20 20 20 75,000

TABLE 7.—ANTIMICROBIALS DIVISION: NEW USES

A A1 B C D E F G H

EPA No. CR No. Action Decision Time (months) Fee ($)

FY04 FY05 FY06 FY07 FY08

A44 42 New use 29 21 21 21 21 25,000 First food use, with exemption1

A45 43 New use 29 21 21 21 21 75,000 First food use, with tolerance1

A46 44 New food use, with exemption 24 15 15 15 15 10,000

A47 45 New food use, with tolerance 24 15 15 15 15 25,000

A48 46 New use FIFRA section 3(h) decision times 15,000 Non-food, outdoor FIFRA section 2(mm) uses

A49 47 New use, non-food, outdoor, other uses 24 15 15 15 15 25,000

A50 48 New use FIFRA section 3(h) decision times 10,000 Non-food, indoor FIFRA section 2(mm) uses

A51 49 New use 20 12 12 12 12 10,000 Non-food, indoor Other uses

A52 50 Experimental Use Permit 9 9 9 9 9 5,000

TABLE 8.—ANTIMICROBIALS DIVISION: NEW PRODUCTS AND AMENDMENTS

A A1 B C D E F G H

EPA No. CR No. Action Decision Time (months) Fee ($)

FY04 FY05 FY06 FY07 FY08

A53 51 New product, me-too, fast track 3 3 3 3 3 1,000

A54 52 New product, non-fast track, FIFRA section FIFRA section 3(h) decision times 4,000 2(mm) uses

A55 53 New product, non-fast track, other uses 8 6 6 6 6 4,000

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TABLE 8.—ANTIMICROBIALS DIVISION: NEW PRODUCTS AND AMENDMENTS—Continued

A A1 B C D E F G H

A56 54 New manufacturing use product, old AI, selec- 24 18 12 12 12 15,000 tive citation

A57 55 Amendment, non-fast track2 6 4 4 4 4 3,000

VIII. Biopesticides and Pollution pesticide applications for biochemical lepidopteran pheromones (SCLPs), and Prevention Division (BPPD) Fee pesticides, microbial pesticides, and plant-incorporated protectants (PIPs). Schedules plant-incorporated protectants (PIPs). Within each table, the types of The fee tables for BPPD tables are application are the same as those in The Biopesticides and Pollution presented by type of pesticide rather other divisions and use the same Prevention Division of OPP is than by type of action: Microbial and terminology as in Unit V. responsible for the processing of biochemical pesticides, straight chain

TABLE 9.—BPPD: MICROBIAL AND BIOCHEMICAL PESTICIDES

A A1 B C D E F G H

EPA No. CR No. Action Decision Time (months) Fee ($)

FY04 FY05 FY06 FY07 FY08

B58 3 New AI 18 18 18 18 18 40,000 Food use, with tolerance1

B59 4 New AI 16 16 16 16 16 25,000 Food use, with exemption1

B60 5 New AI 12 12 12 12 12 15,000 Non-food use1

B61 6 Experimental Use Permit 9 9 9 9 9 10,000 Food use, with temporary tolerance exemption

B62 7 Experimental Use Permit, Non-food use 6 6 6 6 6 5,000

B63 8 New use 12 12 12 12 12 10,000 First food use, with exemption

B64 9 New use 18 18 18 18 18 15,000 First food use, with tolerance1

B65 10 New use, non-food 6 6 6 6 6 5,000

B66 11 New product 3 3 3 3 3 1,000 Me-too Fast-track

B67 12 New product 6 6 4 4 4 4,000 Non-fast-track

B68 13 Amendment2 6 6 4 4 4 4,000 Non-fast-track

TABLE 10.—BPPD: STRAIGHT CHAIN LEPIDOPTERAN PHEROMONES (SCLPS)

A A1 B C D E F G H

EPA No. CR No. Action Decision Time (months) Fee ($)

FY04 FY05 FY06 FY07 FY08

B69 14 New AI 6 6 6 6 6 2,000 Food or non-food use1

B70 15 Experimental Use Permit 6 6 6 6 6 1,000 New AI or new use

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TABLE 10.—BPPD: STRAIGHT CHAIN LEPIDOPTERAN PHEROMONES (SCLPS)—Continued

A A1 B C D E F G H

B71 16 New product 3 3 3 3 3 1,000 Me-too Fast-track

B72 17 New product, non-fast-track 6 6 4 4 4 1,000

B73 18 Amendment, non-fast-track2 6 6 4 4 4 1,000

TABLE 11.—BPPD: PLANT-INCORPORATED PROTECTANTS (PIPS)

A A1 B C D E F G H

EPA No. CR No. Action Decision Time (months) Fee ($)

FY FY FY FY FY 04 05 06 07 08

B74 19 Experimental Use Permit 12 12 6 6 6 75,000 Non food/feed or crop destruct No Scientific Advisory Panel review required (if submitted before new AI package, $25 K credit toward new AI registration)

B75 20 Experimental Use Permit, with temporary toler- 12 12 9 9 9 100,000 ance or exemption No Scientific Advisory Panel review required (if submitted before new AI package, $50K cred- it toward new AI registration)

B76 21 Experimental Use Permit 15 15 12 12 12 125,000 New AI Non-food/feed or crop destruct Scientific Advisory Panel review required (if submitted before new AI package, $75K cred- it toward new AI registration)

B77 22 Experimental Use Permit 18 18 15 15 15 150,000 New AI Set temporary tolerance or exemption Scientific Advisory Panel review required (if submitted before new AI package, $100K credit toward new AI registration)

B78 23 Register new AI 18 18 12 12 12 125,000 Non-food/feed No Scientific Advisory Panel review required

B79 24 Register new AI 24 24 18 18 18 225,000 Non-food/feed Scientific Advisory Panel review required

B80 25 Register new AI 18 18 12 12 12 200,000 Temporary tolerance or exemption exists No Scientific Advisory Panel review required

B81 26 Register new AI 24 24 18 18 18 300,000 Temporary tolerance or exemption exists Scientific Advisory Panel review required

B82 27 Register new AI 21 21 15 15 15 250,000 Set tolerance or exemption No Scientific Advisory Panel review required

B83 28 Register new AI 21 21 15 15 15 300,000 Experimental Use Permit request Set tolerance or exemption No Scientific Advisory Panel review required

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TABLE 11.—BPPD: PLANT-INCORPORATED PROTECTANTS (PIPS)—Continued

A A1 B C D E F G H

B84 29 Register new AI 24 24 21 21 21 350,000 Set tolerance or exemption Scientific Advisory Panel review required

B85 30 Register new AI 24 24 21 21 21 400,000 With Experimental Use Permit request Set tolerance or exemption Scientific Advisory Panel review required

B86 31 Experimental Use Permit 6 6 6 6 6 10,000 Food use Amendment2

B87 32 New use3 9 9 9 9 9 30,000

B88 33 New product4 12 12 9 9 9 25,000

B89 34 Amendment, seed production to commercial reg- 15 15 12 9 9 50,000 istration

B90 35 Amendment, non-fast-track2 (except #B89 6 6 6 6 6 10,000 above)

IX. Addresses Office of Pesticide Programs List of Subjects Environmental Protection Agency New covered applications should be Environmental protection, identified in the title line with the mail Room 266A, Crystal Mall #2 Administrative practice and procedures, code (REGFEE). 1921 Jefferson Davis Hwy. Arlington, VA 22202–4501 Pesticides and pests. A. By USPS Mail Couriers and delivery personnel must Dated: March 11, 2004. Document Processing Desk (REGFEE) present a valid picture identification Office of Pesticide Programs (7504C) card to gain access to the building. Susan B. Hazen, Environmental Protection Agency Hours of operation for the Document Acting Assistant Administrator, Office of 1200 Pennsylvania Ave., NW. Prevention, Pesticides and Toxic Substances. Washington, DC 20460–0001 Processing Desk are 8 a.m. to 4:30 p.m., Monday through Friday, excluding [FR Doc. 04–6001 Filed 3–16–04; 8:45 am] B. By Courier Federal holidays. BILLING CODE 6560–50–S Document Processing Desk (REGFEE)

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Reader Aids Federal Register Vol. 69, No. 52 Wednesday, March 17, 2004

CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING MARCH

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. 783...... 9744 Presidential Documents 3 CFR 906...... 10135 Executive orders and proclamations 741–6000 Proclamations: 1230...... 9924 The United States Government Manual 741–6000 6867 (Amended by 1427...... 12053 Proc. 7757) ...... 9515 Other Services Proposed Rules: 7757...... 9515 16...... 10354 Electronic and on-line services (voice) 741–6020 7758...... 10131 319...... 9976 Privacy Act Compilation 741–6064 7759...... 10593 457...... 11342 Public Laws Update Service (numbers, dates, etc.) 741–6043 7760...... 11483 1000...... 9763 TTY for the deaf-and-hard-of-hearing 741–6086 7761...... 11485 1001...... 9763 7762...... 11489 1005...... 9763 Executive Orders: ELECTRONIC RESEARCH 1006...... 9763 12170 (See Notice of 1007...... 9763 World Wide Web March 10, 2004)...... 12051 1030...... 9763 12957 (See Notice of 1032...... 9763 Full text of the daily Federal Register, CFR and other publications March 10, 2004)...... 12051 is located at: http://www.access.gpo.gov/nara 1033...... 9763 12959 (See Notice of 1124...... 9763 Federal Register information and research tools, including Public March 10, 2004)...... 12051 1126...... 9763 Inspection List, indexes, and links to GPO Access are located at: 13059 (See Notice of 1131...... 9763 http://www.archives.gov/federallregister/ March 10, 2004)...... 12051 8 CFR E-mail 13288 (Continued by Notice of March 2, 214...... 11287 FEDREGTOC-L (Federal Register Table of Contents LISTSERV) is 2004) ...... 10313 Proposed Rules: an open e-mail service that provides subscribers with a digital 13322 (Superseded by 208...... 10620 form of the Federal Register Table of Contents. The digital form EO 13332)...... 10891 212...... 10620 of the Federal Register Table of Contents includes HTML and 13331...... 9911 1003...... 10627 PDF links to the full text of each document. 13332...... 10891 1208...... 10627 To join or leave, go to http://listserv.access.gpo.gov and select Administrative Orders: 1212...... 10627 Online mailing list archives, FEDREGTOC-L, Join or leave the list Memorandums: 1240...... 10627 (orchange settings); then follow the instructions. Memorandum of March 1, 2004 ...... 10133 9 CFR PENS (Public Law Electronic Notification Service) is an e-mail Memorandum of March 71...... 10137 service that notifies subscribers of recently enacted laws. 3, 2004 ...... 10597 78...... 9747 To subscribe, go to http://listserv.gsa.gov/archives/publaws-l.html Memorandum of March 93...... 9749 and select Join or leave the list (or change settings); then follow 5, 2004 ...... 11489 93...... 10633 the instructions. Notices: 94...... 10633 FEDREGTOC-L and PENS are mailing lists only. We cannot Notice of March 2, 95...... 10633 respond to specific inquiries. 2004 ...... 10313 Notice of March 8, 10 CFR Reference questions. Send questions and comments about the 2004 ...... 11491 Proposed Rules: Federal Register system to: [email protected] Notice of March 10, 71...... 12088 The Federal Register staff cannot interpret specific documents or 2004 ...... 12051 regulations. Presidential 11 CFR Determinations: Proposed Rules: FEDERAL REGISTER PAGES AND DATE, MARCH No. 2004–23 of 100...... 11736 February 25, 2004 ...... 9915 102...... 11736 9515–9742...... 1 No. 2004–24 of 104...... 11736 9743–9910...... 2 February 25, 2004 ...... 9917 106...... 11736 9911–10130...... 3 No. 2004–25 of 114...... 11736 February 26, 2004 ...... 10595 10131–10312...... 4 12 CFR 10313–10594...... 5 5 CFR 220...... 10601 10595–10900...... 8 300...... 10152 229...... 10602 10901–11286...... 9 890...... 9919 609...... 10901 11287–11502...... 10 1201...... 11503 611...... 10901 11503–11788...... 11 612...... 10901 11789–12052...... 12 7 CFR 614...... 10901 12053–12264...... 15 301...... 10599 615...... 10901 12265–12538...... 16 319...... 9743 617...... 10901 12539–12780...... 17 330...... 12265 741...... 9926 400...... 9519 795...... 12265 457...... 9519 Proposed Rules: 701...... 10300 303...... 12571

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324...... 12571 703...... 12218 943...... 9983 20...... 10185 14 CFR 21 CFR 32 CFR 39 CFR 21...... 10315 314...... 11309 806b...... 12540 111...... 11532, 11534 520...... 9753, 9946 241...... 11536 25...... 12526 33 CFR 29...... 10315 522...... 11506, 12271 Proposed Rules: 39 ...... 9520, 9521, 9523, 9526, 558...... 9947, 12067 66...... 12541 3001...... 11353 9750, 9927, 9930, 9932, 803...... 11310 100...... 12073 9934, 9936, 9941, 10317, 806...... 11310 117 .....9547, 9549, 9550, 9551, 40 CFR 10319, 10321, 10913, 10914, 807...... 11310 10158, 10159, 10160, 10615, 52 ...... 10161, 11798, 12074 10915, 10917, 10919, 10921, 814...... 11310 12074, 12541 62 ....9554, 9949, 10165, 11537 11290, 11293, 11296, 11297, 820...... 11310 165 ...... 9552, 9948, 10616, 63...... 10512 11299, 11303, 11305, 11308, 864...... 12271 11314, 12542 69...... 10332, 12199 11504, 11789, 12057, 12060, 870...... 10615 Proposed Rules: 70...... 9557, 10167 12061, 12063, 12064, 12065 882...... 10331 100...... 9984, 11564 81...... 11798 71 ...... 10103, 10324, 10325, 1005...... 11310 117 ...... 9562, 10182, 10183, 82...... 9754, 11946 10326, 10327, 10328, 10329, Proposed Rules: 11351, 12601 180 ...... 9954, 9958, 11317, 10330, 10331, 10603, 10604, 101...... 9559 147...... 12098 12542 10605, 10606, 10608, 10609, 314...... 9982 402...... 9774 262...... 11801 10610, 10611, 10612, 11480, 876...... 12598 34 CFR 271 ...... 10171, 11322, 11801, 11712, 11791, 11793, 11794, 888...... 10390 12544 5b...... 12246 11795, 11797, 11943 Proposed Rules: 22 CFR 222...... 12234 95...... 10612 1...... 11826 600...... 12274 97...... 10614 302...... 12273 52 ...... 9776, 11577, 11580, 649...... 12274 Proposed Rules: 12103, 12293 668...... 12274 39 ...... 10179, 10357, 10360, 23 CFR 60...... 12398, 12603 674...... 12274 10362, 10364, 10364, 10366, 658...... 11994 62 ...... 9564, 9987, 10186 675...... 12274 10369, 10370, 10372, 10374, Proposed Rules: 63...... 12603 676...... 12274 10375, 10378, 10379, 10381, 658...... 11997 72...... 12398 682...... 12274 10383, 10385, 10387, 10636, 75...... 12398 685...... 12274 10638, 10641, 10939, 11346, 24 CFR 82...... 11358 690...... 12274 11547, 11549, 11550, 11552, 141...... 9781 21...... 11314 693...... 12274 11554, 11556, 11558, 11821, 24...... 11314 142...... 9781 12580, 12582, 12585, 12587, 200...... 10106, 11494 Proposed Rules: 271...... 10187 106...... 11276 12589, 12592, 12594, 12596 203...... 11500 300 ...... 9988, 10646, 12604, 71...... 10389, 11825 Proposed Rules: 36 CFR 12606, 12608 5...... 10126 16 CFR Proposed Rules: 41 CFR 570...... 10126 1220...... 12100 304...... 9943 60-3...... 10152 990...... 11349 1222...... 12100 102-39...... 11539 Proposed Rules: 3284...... 9740 1223...... 12100 316...... 11776 302-17...... 12079 25 CFR 1224...... 12100 17 CFR 1225...... 12100 44 CFR Proposed Rules: 1226...... 12100 64...... 9755 210...... 9722, 11244 30...... 10181 1227...... 12100 65 ...... 10923, 12081, 12084 211...... 12067 37...... 10181 1228...... 12100 67...... 10924, 10927 228...... 9722 39...... 10181 1229...... 12100 229...... 9722 42...... 10181 1230...... 12100 Proposed Rules: 239...... 11244 44...... 10181 1231...... 12100 67...... 10941 240...... 9722 47...... 10181 1232...... 12100 45 CFR 249...... 9722, 11244 243...... 11784 1233...... 12100 270...... 9722, 11244 2400...... 11813 26 CFR 1234...... 12100 274...... 9722, 11244 1235...... 12100 Proposed Rules: Proposed Rules: 1 ...... 9529, 11507, 12069 1236...... 12100 Ch. XII...... 10188 200...... 11126 Proposed Rules: 1237...... 12100 Ch. XXV...... 10188 230...... 11126 1 .....9560, 9771, 11560, 11561, 1238...... 12100 74...... 10951 239...... 12752 12091, 12291 1240...... 12100 87...... 10951 240...... 11126 1242...... 12100 92...... 10951 28 CFR 242...... 11126 1244...... 12100 96...... 10951 249...... 11126, 12752 50...... 10152 1246...... 12100 270 ...... 9726, 11762, 12752 46 CFR 274...... 12752 29 CFR 37 CFR 67...... 10174 1607...... 10152 201...... 11515 310...... 9758 18 CFR 4022...... 12072 270...... 11515 Proposed Rules: 330...... 12539 4044...... 12072 Proposed Rules: 67...... 11582 385...... 12539 Proposed Rules: 1...... 9986 221...... 11582 2...... 11234 2...... 9986 19 CFR 37...... 11234 10...... 9986 47 CFR 12...... 12267 1926...... 12098 11...... 9986 15...... 12547 122...... 10151 2550...... 9900 201...... 11566 36...... 12548 54...... 11326, 12087 20 CFR 30 CFR 38 CFR 73...... 11540, 12277 Proposed Rules: 920...... 11512 1...... 11531 76...... 12547 667...... 11234 946...... 11314 36...... 10618 Proposed Rules: 670...... 11234 Proposed Rules: Proposed Rules: 15...... 12612 701...... 12218 920...... 11562 19...... 10185 73 ....9790, 9791, 12296, 12618

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48 CFR 1833...... 11828 175...... 9565 635...... 10936 1817...... 9963 176...... 9565 648 ...... 9970, 10174, 10177, 49 CFR 177...... 9565 10937 Proposed Rules: 193...... 11330 178...... 9565 660...... 11064 23...... 10118 229...... 12532 659...... 11218 679 ...... 11545, 11819, 12569, 52...... 10118 375...... 10570 12570 1827...... 11828 541...... 9964 50 CFR Proposed Rules: 1828...... 11828 571 ...... 10928, 11337, 11815 17 ...... 10335, 12278, 12553 17...... 10956, 12619 1829...... 11828 Proposed Rules: 216...... 9759 20...... 12105 1830...... 11828 172...... 9565 223...... 11540 622...... 10189 1831...... 11828 173...... 9565 229...... 9760, 11817 660...... 11361 1832...... 11828 174...... 9565 622...... 9969 679...... 10190

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REMINDERS McDonnell Douglas; by 3-26-04; published 2-10- by 3-22-04; published The items in this list were published 2-11-04 04 [FR 04-02802] 2-20-04 [FR 04-03599] editorially compiled as an aid COURT SERVICES AND National oil and hazardous to Federal Register users. COMMENTS DUE NEXT OFFENDER SUPERVISION substances contingency plan— Inclusion or exclusion from WEEK AGENCY FOR THE this list has no legal DISTRICT OF COLUMBIA National priorities list significance. Semi-annual agenda; Open for update; comments due AGRICULTURE comments until further by 3-22-04; published DEPARTMENT notice; published 12-22-03 2-20-04 [FR 04-03598] RULES GOING INTO Animal and Plant Health [FR 03-25121] Superfund program: EFFECT MARCH 17, 2004 Inspection Service DEFENSE DEPARTMENT National oil and hazardous Genetically engineered substances contingency organisms; importation, Federal Acquisition Regulation plan— ENERGY DEPARTMENT (FAR): interstate movement, and National priorities list Federal Energy Regulatory Definitions clause; Commission environmental release; update; comments due comments due by 3-23-04; comments due by 3-22- Outer Continental Shelf Lands by 3-25-04; published published 1-23-04 [FR 04- 04; published 1-21-04 [FR 2-24-04 [FR 04-03824] Act: 01411] 04-01152] Service reporting EQUAL EMPLOYMENT Plant-related quarantine, ENERGY DEPARTMENT OPPORTUNITY COMMISSION requirements; CFR part domestic: removed; published 3-17- Federal Energy Regulatory Federal sector equal 04 Oriental Fruit Fly; comments Commission employment opportunity: due by 3-22-04; published Electric rate and corporate Complaint processing data ENVIRONMENTAL 1-20-04 [FR 04-01067] regulation filings: posting; comments due by PROTECTION AGENCY AGRICULTURE Virginia Electric & Power 3-26-04; published 1-26- Hazardous waste program DEPARTMENT Co. et al.; Open for 04 [FR 04-01505] authorizations: Forest Service comments until further FEDERAL Arizona; published 3-17-04 Alaska National Interest Lands notice; published 10-1-03 COMMUNICATIONS FEDERAL Conservation Act; Title VIII [FR 03-24818] COMMISSION COMMUNICATIONS implementation (subsistence Natural Gas Policy Act: Digital television stations; table COMMISSION priority): Interstate natural gas of assignments: Television broadcasting: Fish and shellfish; pipelines— New Mexico; comments due Digital cable products; subsistence taking; Business practice by 3-22-04; published 2- commercial availability of comments due by 3-26- standards; comments 10-04 [FR 04-02835] navigation devices and 04; published 2-3-04 [FR due by 3-26-04; GENERAL SERVICES compatibility between 04-02098] published 2-25-04 [FR ADMINISTRATION cable systems and AGRICULTURE 04-04095] Federal Acquisition Regulation consumer electronics DEPARTMENT ENVIRONMENTAL (FAR): equipment; published 3- Rural Utilities Service PROTECTION AGENCY Definitions clause; 17-04 comments due by 3-22- Grants: Air programs; approval and HOMELAND SECURITY promulgation; State plans 04; published 1-21-04 [FR DEPARTMENT Technical Assistance and 04-01152] Training Grants Program; for designated facilities and Coast Guard HEALTH AND HUMAN clarification; comments pollutants: SERVICES DEPARTMENT Drawbridge operations: due by 3-22-04; published California; comments due by Louisiana; published 3-1-04 1-22-04 [FR 04-01274] 3-26-04; published 2-25- Centers for Medicare & 04 [FR 04-04128] Medicaid Services Navigation aids: COMMERCE DEPARTMENT Air quality planning purposes; Medicare: Alternatives to incandescent National Oceanic and designation of areas: Long-term care hospitals; lights and standards for Atmospheric Administration new lights in private aids; California; comments due by prospective payment International fisheries correction; published 3-17- 3-24-04; published 2-23- system; annual payment regulations: 04 04 [FR 04-03823] rate updates and policy Antarctic marine living changes; comments due MERIT SYSTEMS Environmental statements; resources conservation by 3-23-04; published 1- PROTECTION BOARD availability, etc.: and management; 30-04 [FR 04-01886] Practice and procedure: environmental impact Coastal nonpoint pollution HEALTH AND HUMAN Boston and Seattle field statement; meetings; control program— SERVICES DEPARTMENT offices closure; published comments due by 3-22- Minnesota and Texas; Food and Drug 3-11-04 04; published 2-5-04 [FR Open for comments Administration until further notice; TRANSPORTATION 04-02534] Reports and guidance published 10-16-03 [FR DEPARTMENT CORPORATION FOR documents; availability, etc.: 03-26087] Federal Aviation NATIONAL AND Evaluating safety of Administration COMMUNITY SERVICE Pesticides; tolerances in food, antimicrobial new animal animal feeds, and raw Airworthiness directives: Foster Grandparent Progam; drugs with regard to their agricultural commodities: Aerospatiale; published 2- amendments; comments due microbiological effects on Sulfuryl fluoride; comments 11-04 by 3-26-04; published 2-10- bacteria of human health 04 [FR 04-02801] due by 3-23-04; published concern; Open for Airbus; published 2-11-04 1-23-04 [FR 04-01540] comments until further Boeing; published 2-11-04 Retired Senior Volunteer Program; amendments; Superfund program: notice; published 10-27-03 Bombardier; published 2-11- comments due by 3-26-04; National oil and hazardous [FR 03-27113] 04 published 2-10-04 [FR 04- substances contingency HOMELAND SECURITY Dassault; published 2-11-04 02803] plan— DEPARTMENT Dornier; published 2-11-04 Senior Companion Program; National priorities list Coast Guard Fokker; published 2-11-04 amendments; comments due update; comments due Anchorage regulations:

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Madeline Island, WI; Definitions clause; BAE Systems (Operations) available online at http:// comments due by 3-23- comments due by 3-22- Ltd.; comments due by 3- www.archives.gov/ 04; published 12-24-03 04; published 1-21-04 [FR 26-04; published 2-25-04 federal—register/public—laws/ [FR 03-31728] 04-01152] [FR 04-04048] public—laws.html. Maryland; Open for NUCLEAR REGULATORY Bell; comments due by 3- comments until further COMMISSION 22-04; published 1-21-04 The text of laws is not notice; published 1-14-04 Production and utilization [FR 04-01172] published in the Federal [FR 04-00749] facilities; domestic licensing: Boeing; comments due by Register but may be ordered in ‘‘slip law’’ (individual Ports and waterways safety: Light-water cooled nuclear 3-22-04; published 2-6-04 pamphlet) form from the Mississippi Canyon 474, power plants; construction [FR 04-02479] Superintendent of Documents, Outer Continental Shelf and inspection of Empresa Brasileira de U.S. Government Printing Gulf of Mexico; safety components and testing Aeronautica S.A. Office, Washington, DC 20402 zone; comments due by pumps and valves; (EMBRAER); comments (phone, 202–512–1808). The 3-22-04; published 1-20- industry codes and due by 3-22-04; published text will also be made 04 [FR 04-01141] standards; comments due 2-19-04 [FR 04-03494] available on the Internet from Outer Continental Shelf by 3-22-04; published 1-7- Glasflugel; comments due GPO Access at http:// Facility, Gulf of Mexico for 04 [FR 04-00314] by 3-22-04; published 2- www.gpoaccess.gov/plaws/ Garden Banks; safety PERSONNEL MANAGEMENT 17-04 [FR 04-03352] index.html. Some laws may zone; comments due by OFFICE Gulfstream; comments due not yet be available. 3-22-04; published 1-20- Human Resources by 3-25-04; published 2-9- 04 [FR 04-01137] Management System; 04 [FR 04-02679] H.R. 3915/P.L. 108–205 HOMELAND SECURITY establishment; comments Schempp-Hirth Flugzeugbau DEPARTMENT To provide for an additional due by 3-22-04; published GmbH; comments due by Human Resources 2-20-04 [FR 04-03670] temporary extension of 3-25-04; published 2-17- programs under the Small Management System; Notification and Federal 04 [FR 04-03353] establishment; comments Employee Antidiscrimination Business Act and the Small Airworthiness standards: due by 3-22-04; published and Retaliation Act of 2002; Business Investment Act of 2-20-04 [FR 04-03670] Title II implementation; Special conditions— 1958 through April 2, 2004, and for other purposes. (Mar. INTERIOR DEPARTMENT comments due by 3-22-04; Avidyne Corp., Inc.; 15, 2004; 118 Stat. 553) Fish and Wildlife Service published 1-22-04 [FR 04- comments due by 3-26- 04; published 2-25-04 Alaska National Interest Lands 01338] S. 714/P.L. 108–206 [FR 04-04177] Conservation Act; Title VIII Presidential Management To provide for the conveyance implementation (subsistence Fellows Program; Class D and E airspace; of a small parcel of Bureau of priority): modification; comments due comments due by 3-22-04; Land Management land in Fish and shellfish; by 3-26-04; published 1-26- published 2-19-04 [FR 04- 04 [FR 04-01589] 03630] Douglas County, Oregon, to subsistence taking; the county to improve POSTAL SERVICE Class E airspace; comments comments due by 3-26- management of and 04; published 2-3-04 [FR Domestic Mail Manual: due by 3-23-04; published 2-19-04 [FR 04-03632] recreational access to the 04-02098] Machinable parcel testing Oregon Dunes National Endangered and threatened changes; comments due TREASURY DEPARTMENT Recreation Area, and for other species: by 3-22-04; published 2- Internal Revenue Service purposes. (Mar. 15, 2004; 118 Critical habitat 20-04 [FR 04-03657] Estate and gift taxes: Stat. 554) designations— SMALL BUSINESS Gross estate; election to Last List March 4, 2004 California tiger ADMINISTRATION value on alternate salamander; comments Disaster loan areas: valuation date; comments due by 3-22-04; Maine; Open for comments due by 3-23-04; published published 1-22-04 [FR until further notice; 12-24-03 [FR 03-31615] Public Laws Electronic 04-01296] published 2-17-04 [FR 04- TREASURY DEPARTMENT Notification Service Preble’s meadow jumping 03374] (PENS) mouse; comments due by Small business investment Thrift Supervision Office 3-25-04; published 2-24- companies: Assessments and fees; 04 [FR 04-04025] Long term financing; comments due by 3-26-04; LIBRARY OF CONGRESS comments due by 3-24- published 2-10-04 [FR 04- PENS is a free electronic mail Copyright Office, Library of 04; published 2-23-04 [FR 02846] notification service of newly Congress 04-03842] enacted public laws. To subscribe, go to http:// Copyright office and TRANSPORTATION LIST OF PUBLIC LAWS listserv.gsa.gov/archives/ procedures: DEPARTMENT publaws-l.html Legal processes; comments Federal Aviation This is a continuing list of due by 3-24-04; published Administration public bills from the current Note: This service is strictly 2-23-04 [FR 04-03725] Airworthiness directives: session of Congress which for E-mail notification of new NATIONAL AERONAUTICS Alexander Schleicher GmbH have become Federal laws. It laws. The text of laws is not AND SPACE & Co. Segelflugzeugbau; may be used in conjunction available through this service. ADMINISTRATION comments due by 3-22- with ‘‘PLUS’’ (Public Laws PENS cannot respond to Federal Acquisition Regulation 04; published 2-11-04 [FR Update Service) on 202–741– specific inquiries sent to this (FAR): 04-02954] 6043. This list is also address.

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