3–11–04 Thursday Vol. 69 No. 48 Mar. 11, 2004
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1 II Federal Register / Vol. 69, No. 48 / Thursday, March 11, 2004
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2 III
Contents Federal Register Vol. 69, No. 48
Thursday, March 11, 2004
Agriculture Department Caribbean Basin Trade Partnership Act; short supply See Farm Service Agency requests— See Forest Service 100 percent cotton woven flannel fabrics for use in See Natural Resources Conservation Service apparel, 11596–11597 See Rural Utilities Service NOTICES Comptroller of the Currency Committees; establishment, renewal, termination, etc.: NOTICES Edward R. Madigan United States Agricultural Export Agency information collection activities; proposals, Excellence Board of Evaluators, 11584 submissions, and approvals; correction, 11712
Alcohol and Tobacco Tax and Trade Bureau Copyright Office, Library of Congress NOTICES RULES Agency information collection activities; proposals, Copyright office and procedures: submissions, and approvals, 11707–11709 Sound recordings use under statutory licenses; notice and recordkeeping requirements, 11515–11531 PROPOSED RULES Antitrust Division Copyright office and procedures: NOTICES Musical works; compulsory license for making and National cooperative research notifications: distributing phonorecords, including digital Portland Cement Association, 11651 phonorecord deliveries, 11566–11577 Video-Enhanced Residential ADSL Broadband Technology, 11651 Corporation for National and Community Service NOTICES Centers for Disease Control and Prevention Agency information collection activities; proposals, NOTICES submissions, and approvals, 11597–11598 Agency information collection activities; proposals, submissions, and approvals, 11624–11625 Defense Department Grants and cooperative agreements; availability, etc.: NOTICES Cancer preventive and treatment services; community Agency information collection activities; proposals, interventions research, 11625–11631 submissions, and approvals, 11598 Regional Academic Environmental Public Health Centers Meetings: Program, 11631–11634 Dependents’ Education Advisory Council, 11598–11599 Meetings: Science Board task forces, 11599–11600 Los Alamos Historical Document Retrieval and Assessment Project Study Team, 11634–11635 Drug Enforcement Administration Public Health Service Activities and Research at DOE NOTICES Sites Citizens Advisory Committee, 11635 Applications, hearings, determinations, etc.: Abbott Laboratories, 11651–11652 Centers for Medicare & Medicaid Services ANM Wholesale, 11652–11653 NOTICES Cayman Chemical Co., 11653–11654 Agency information collection activities; proposals, Chemical Laboratories, Inc., 11654 submissions, and approvals, 11635–11636 Direct Wholesale, 11654–11655 Doyle, Rory Patrick, M.D., 11655–11657 Frenz, John A., M.D., 11657 Coast Guard Gateway Specialty Chemical, Co., 11657–11658 PROPOSED RULES Gibbs, Marvin L., Jr., M.D., 11658–11661 Regattas and marine parades: Graham, Stephen J., M.D., 11661–11662 Cuyahoga Rowing Regatta, 11564–11566 ISP Freetown Fine Chemicals, Inc., 11662 Vessel documentation and measurement: National Center for Natural Products Research-NIDA Lease financing for coastwise trade MProject, University of Mississippi, 11662–11663 Meeting, 11582–11583 Phillips, James W., M.D., 11663 Stepan Co., 11663 Commerce Department Tocris Cookson, Inc., 11664 See International Trade Administration See National Oceanic and Atmospheric Administration Education Department NOTICES Committee for the Implementation of Textile Agreements Agency information collection activities; proposals, NOTICES submissions, and approvals, 11600 Textile and apparel categories: Grants and cooperative agreements; availability, etc.: Andean Trade Promotion and Drug Eradication Act; short Innovation and improvement— supply requests— State Charter School Facilities Incentive Program; Cotton corduroy fabrics, 11595–11596 correction, 11600
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Employment and Training Administration Federal Election Commission NOTICES PROPOSED RULES Meetings: Political committee status, 11735–11760 Native American Employment and Training Council, 11664 Federal Energy Regulatory Commission NOTICES Energy Department Electric rate and corporate regulation filings, 11611–11615 See Federal Energy Regulatory Commission Environmental statements; availability, etc.: Saltville Gas Storage Co., L.L.C.; Smyth and Washington Environmental Protection Agency Counties, VA, 11615–11616 RULES Hydroelectric applications, 11616–11618 Air programs; approval and promulgation; State plans for Meetings: designated facilities and pollutants: Midwest Independent Transmission System Operator, Puerto Rico, 11537–11539 Inc.; technical conference, 11619 PROPOSED RULES Natural gas and electric markets, price discovery; comment Air quality implementation plans; approval and request, 11619–11620 promulgation; various States: Applications, hearings, determinations, etc.: California, 11577 Algonquin Gas Transmission Co., 11600–11601 Pennsylvania, 11580–11582 ANR Pipeline Co., 11601–11602 Texas, 11577–11580 Colorado Interstate Gas Co., 11603 NOTICES Columbia Gas Transmission Corp., 11603–11604 Radiation protection programs: Columbia Gulf Transmission Co., 11604 Transuranic radioactive waste for disposal at Waste Dominion Cove Point LNG, LP, 11604–11605 Isolation Pilot Plant; waste characterization program Dominion Transmission, Inc., 11605 documents availability— East Tennessee Natural Gas Co., 11605 Rocky Flats Environmental Technology Site, 11621– Enbridge Pipelines (AlaTenn) L.L.C., 11606 11623 Enbridge Pipelines (Louisiana Intrastate) LLC, 11605– Water supply: 11606 Public water supply supervision program— Equitrans, L.P., 11606 Delaware, 11623 Freeport-McMoRan Energy LLC, 11606–11607 Gas Transmission Northwest Corp., 11607 Farm Service Agency Iroquois Gas Transmission System, L.P., 11607–11608 NOTICES Northern Border Pipeline Co., 11608–11609 Grants and cooperative agreements; availability, etc.: Northern Natural Gas Co., 11609 Michigan Tree Assistance Program, 11584–11585 Overland Trail Transmission, LLC, 11609 Meetings: Panhandle Eastern Pipe Line Co., LLC, 11609–11610 Beginning Farmers and Ranchers Advisory Committee, Southwest Gas Storage Co., 11610 11585–11586 Transcontinental Gas Pipe Line Corp., 11610–11611 Trunkline Gas Co., LLC, 11611 Federal Aviation Administration Williston Basin Interstate Pipeline Co., 11611 RULES Federal Highway Administration Airworthiness directives: NOTICES McDonnell Douglas, 11504–11506 Environmental statements; notice of intent: Class E airspace; correction, 11712 PROPOSED RULES Puluski County, AR, 11699–11700 Airworthiness directives: Federal Mine Safety and Health Review Commission Airbus, 11547–11549, 11552–11554, 11558–11560 NOTICES Bombardier, 11554–11556 Meetings; Sunshine Act, 11666–11667 Empresa Brasileira de Aeronautica S.A. (EMBRAER), 11549–11550 Federal Railroad Administration Eurocopter France, 11556–11558 NOTICES McDonell Douglas, 11550–11552 Exemption petitions, etc.: NOTICES Mississippi Lime Company, 11700 Committees; establishment, renewal, termination, etc.: National Parks Overflights Advisory Group, 11697–11698 Federal Reserve System Meetings: NOTICES RTCA, Inc., 11698–11699 Agency information collection activities; proposals, submissions, and approvals; correction, 11712 Federal Communications Commission Meetings: RULES Consumer Advisory Council, 11623–11624 Radio stations; table of assignments: Nevada; correction, 11540 Federal Trade Commission PROPOSED RULES Federal Deposit Insurance Corporation Controlling the Assault of Non-Solicited Pornography and NOTICES Marketing Act of 2003: Agency information collection activities; proposals, Definitions, implementation, and reporting requirements, submissions, and approvals; correction, 11712 11775–11782
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Fish and Wildlife Service New markets tax credit; cross-reference, 11561 NOTICES NOTICES Agency information collection activities; proposals, Agency information collection activities; proposals, submissions, and approvals, 11647–11648 submissions, and approvals, 11709–11710 Meetings: Food and Drug Administration Taxpayer Advocacy Panels, 11710–11711 RULES Animal drugs, feeds, and related products: International Trade Administration Lincomycin injectable solution, 11506–11507 NOTICES NOTICES Antidumping: Meetings: Cut-to-length carbon steel plate from— Clinical trials statutory and regulatory requirements; Romania, 11593–11594 FDA/industry exchange, 11636–11637 North American Free Trade Agreement (NAFTA); binational panel reviews: Forest Service Gray portland cement and clinker from— NOTICES Mexico, 11594–11595 Appealable decisions; legal notice: Pacific Northwest Region, 11586–11587 Justice Department Environmental statements; notice of intent: See Antitrust Division Caribou-Targhee National Forest, ID, UT, and WY, See Drug Enforcement Administration 11588–11589 NOTICES Fishlake National Forest, UT, 11589–11591 Pollution control; consent judgments: Meetings: Alexander, Dan and Harriet, et al., 11649 Land Between the Lakes Advisory Board, 11591 Buckeye Egg Farm, L.P., et al., 11649–11650 Resource Advisory Committees— Mahan, Marvin, et al., 11650 Lake County, 11591 Sociedad Naviera Ultragas Ltda., 11650–11651 Resource management plans, etc.: Malheur, Umatilla, and Wallowa-Whitman National Labor Department Forests, OR, WA, and ID, 11591–11592 See Employment and Training Administration See Occupational Safety and Health Administration General Services Administration RULES Land Management Bureau Federal Management Regulation: NOTICES Exchange/sale authority; replacement of personal Meetings: property, 11539–11540 Resource Advisory Councils— John Day/Snake, 11648–11649 Health and Human Services Department Steens Mountain Advisory Council, 11649 See Centers for Disease Control and Prevention See Centers for Medicare & Medicaid Services Library of Congress See Food and Drug Administration See Copyright Office, Library of Congress See National Institutes of Health Maritime Administration Homeland Security Department PROPOSED RULES See Coast Guard Vessel documentation and measurement: Lease financing for coastwide trade Housing and Urban Development Department Meeting, 11582–11583 NOTICES Regulatory waiver requests; quarterly listing, 11713–11734 Merit Systems Protection Board RULES Indian Affairs Bureau Practice and procedure: PROPOSED RULES Boston and Seattle field offices closure, 11503–11504 Fish and Wildlife: Alaska reindeer, 11783–11788 Mine Safety and Health Federal Review Commission See Federal Mine Safety and Health Review Commission Interior Department See Fish and Wildlife Service National Archives and Records Administration See Indian Affairs Bureau NOTICES See Land Management Bureau Agency information collection activities; proposals, See Surface Mining Reclamation and Enforcement Office submissions, and approvals, 11667–11668
Internal Revenue Service National Highway Traffic Safety Administration RULES NOTICES Income taxes: Grants and cooperative agreements; availability, etc.: New markets tax credit, 11507–11512 Crash Outcome Data Evaluation System, 11700–11706 PROPOSED RULES Income taxes: National Institutes of Health Contested liabilities; transfers to provide for satisfaction; NOTICES cross-reference Agency information collection activities; proposals, Public hearing canceled, 11560–11561 submissions, and approvals, 11637–11639
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Meetings: Presidio Trust National Cancer Institute, 11639 NOTICES National Institute of Allergy and Infectious Diseases, Meetings: 11643–11644 Board of Directors, 11669 National Institute of Child Health and Human Development, 11643 Rural Utilities Service National Institute of Dental and Craniofacial Research, NOTICES 11639–11640 Environmental statements; availability, etc.: National Institute of Diabetes and Digestive and Kidney Golden Valley Electric Association, Inc., 11592–11593 Diseases, 11640–11641 Grants and cooperative agreements; availability, etc.: National Institute of Mental Health, 11642–11643 Public Television Station Digital Transition Program, National Institute of Neurological Disorders and Stroke, 11593 11641 National Institute on Alcohol Abuse and Alcoholism, Securities and Exchange Commission 11642 PROPOSED RULES National Institute on Deafness and Other Communication Investment companies: Disorders, 11641–11642 Redeemable fund securities; mandatory redemption fees, National Library of Medicine, 11644 11761–11774 Scientific Review Center, 11644–11647 NOTICES Warren Grant Magnuson Clinical Center Board of Investment Company Act of 1940: Governors, 11647 Jackson National Life Insurance Co. et al., 11669–11678 Self-regulatory organizations; proposed rule changes: National Oceanic and Atmospheric Administration Chicago Board Options Exchange, Inc., 11678–11681 RULES Chicago Stock Exchange, Inc., 11681–11686 Fishery conservation and management: Fixed Income Clearing Corp., 11686–11687 Alaska; fisheries of Exclusive Economic Zone— Municipal Securities Rulemaking Board, 11687–11689 Pacific cod, 11545–11546 Philadelphia Stock Exchange, Inc., 11689–11692 Marine mammals: Commercial fishing operations; incidental taking— Social Security Administration Sea turtle protection; shallow longline sets for NOTICES swordfish in Pacific Ocean; prohibition, 11540– Meetings: 11545 Ticket to Work and Work Incentives Advisory Panel, 11692–11693 Natural Resources Conservation Service Privacy Act: NOTICES Systems of records, 11693–11694 Meetings: Federal grants and cooperative and contribution State Department agreements; training conference, 11592 NOTICES Art objects; importation for exhibition: Neighborhood Reinvestment Corporation Bonjour, Monsieur Courbet: The Bruyas Collection from NOTICES the Musee Fabre, Montpellier, 11694–11695 Meetings; Sunshine Act, 11668 Grants and cooperative agreements; availability, etc.: Human rights and democratization initiatives— Pakistan, Central Asia, Middle East, and North Africa Nuclear Regulatory Commission or Southeast Asia, 11695–11696 NOTICES Meetings: Agency information collection activities; proposals, International Communications and Information Policy submissions, and approvals, 11668–11669 Advisory Committee, 11696–11697 Private International Law Advisory Committee, 11697 Occupational Safety and Health Administration NOTICES Surface Mining Reclamation and Enforcement Office Agency information collection activities; proposals, RULES submissions, and approvals, 11664–11666 Permanent program and abandoned mine land reclamation plan submissions: Personnel Management Office Maryland, 11512–11515 NOTICES PROPOSED RULES Agency information collection activities; proposals, Permanent program and abandoned mine land reclamation submissions, and approvals, 11669 plan submissions: Maryland, 11562–11564 Postal Service RULES Surface Transportation Board Domestic Mail Manual: NOTICES Alternative addressing formats and postage payment Railroad operation, acquisition, construction, etc.: options; standardization, 11534–11535 Clark County, WA, 11706 Metered postage; refund procedures, 11532–11534 Dakota, Minnesota & Eastern Railroad Corp., 11706 Organization and administration: Railroad services abandonment: Post offices; discontinuance, 11536–11537 Burlington Northern & Santa Fe Railway Co., 11707
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Tennessee Valley Authority NOTICES Committees; establishment, renewal, termination, etc.: Regional Resource Stewardship Council, 11697 Separate Parts In This Issue Textile Agreements Implementation Committee See Committee for the Implementation of Textile Part II Agreements Housing and Urban Development Department, 11713–11734
Thrift Supervision Office Part III NOTICES Federal Election Commission, 11735–11760 Agency information collection activities; proposals, submissions, and approvals; correction, 11711–11712 Part IV Transportation Department Securities and Exchange Commission, 11761–11774 See Federal Aviation Administration See Federal Highway Administration See Federal Railroad Administration Part V See Maritime Administration Federal Trade Commission, 11775–11782 See National Highway Traffic Safety Administration See Surface Transportation Board Part VI NOTICES Aviation proceedings: Interior Department, Indian Affairs Bureau, 11783–11788 Agreements filed; weekly receipts, 11697 Treasury Department Reader Aids See Alcohol and Tobacco Tax and Trade Bureau See Comptroller of the Currency Consult the Reader Aids section at the end of this issue for See Internal Revenue Service phone numbers, online resources, finding aids, reminders, See Thrift Supervision Office and notice of recently enacted public laws. To subscribe to the Federal Register Table of Contents Veterans Affairs Department LISTSERV electronic mailing list, go to http:// RULES listserv.access.gpo.gov and select Online mailing list Graves already marked at private expense; appropriate archives, FEDREGTOC-L, Join or leave the list (or change government marker eligibility, 11531–11532 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.
5 CFR 679...... 11545 1201...... 11503 11 CFR Proposed Rules: 100...... 11736 102...... 11736 104...... 11736 106...... 11736 114...... 11736 14 CFR 39...... 11504 71...... 11712 Proposed Rules: 39 (7 documents) ...... 11547, 11549, 11550, 11552, 11554, 11556, 11558 16 CFR Proposed Rules: 316...... 11776 17 CFR Proposed Rules: 270...... 11762 21 CFR 522...... 11506 25 CFR Proposed Rules: 243...... 11784 26 CFR 1...... 11507 Proposed Rules: 1 (2 documents) ...... 11560, 11561 30 CFR 920...... 11512 Proposed Rules: 920...... 11562 33 CFR Proposed Rules: 100...... 11564 37 CFR 201...... 11515 270...... 11515 Proposed Rules: 201...... 11566 38 CFR 1...... 11531 39 CFR 111 (2 documents) ...... 11532, 11534 241...... 11536 40 CFR 62...... 11537 Proposed Rules: 52 (3 documents) ...... 11577, 11580 41 CFR 102-39...... 11539 46 CFR Proposed Rules: 67...... 11582 221...... 11582 47 CFR 73...... 11540 50 CFR 223...... 11540
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Rules and Regulations Federal Register Vol. 69, No. 48
Thursday, March 11, 2004
This section of the FEDERAL REGISTER Northeastern Regional Office and the 19106–2987, Facsimile No.: (215) 597–3456, contains regulatory documents having general Western Regional Office, respectively. (Connecticut; Delaware; Maine; Maryland— applicability and legal effect, most of which In addition, the Board has included except the counties of Montgomery and are keyed to and codified in the Code of an amendment to the zip code listed for Prince George’s; Massachusetts; New Hampshire; New Jersey—except the counties Federal Regulations, which is published under the Denver Field Office in Appendix II 50 titles pursuant to 44 U.S.C. 1510. of Bergen, Essex, Hudson, and Union; and several amendments to the list of Pennsylvania; Rhode Island; Vermont; and The Code of Federal Regulations is sold by approved hearing sites in Appendix III. West Virginia). the Superintendent of Documents. Prices of DATES: Effective March 17, 2004. 3a. New York Field Office, 26 Federal Plaza, Room 3137–A, New York, New York new books are listed in the first FEDERAL FOR FURTHER INFORMATION CONTACT: REGISTER issue of each week. 10278–0022, Facsimile No.: (212) 264–1417, Timothy L. Korb, Manager, Information (New Jersey—counties of Bergen, Essex, Services, Merit Systems Protection Hudson, and Union; New York; Puerto Rico; MERIT SYSTEMS PROTECTION Board, 1615 M Street, NW, Washington, and Virgin Islands). BOARD DC, 20419; (202) 653–7200; fax: (202) 4. Washington Regional Office, 1800 653–7130; or e-mail: [email protected]. Diagonal Road, Alexandria, Virginia 22314, 5 CFR Part 1201 The Board is publishing this rule as Facsimile No.: (703) 756–7112, (Maryland— a final rule pursuant to 5 U.S.C. 1204(h). counties of Montgomery and Prince George’s; Closure of Two MSPB Offices North Carolina; Virginia; Washington, DC; List of Subjects in 5 CFR Part 1201 and all overseas areas not otherwise covered). AGENCY: Merit Systems Protection Administrative practice and 5. Western Regional Office, 250 Board. Montgomery Street, Suite 400, 4th floor, San procedure, Civil rights, Government Francisco, California 94104–3401, Facsimile ACTION: Final rule. employees. No.: (415) 705–2945, (Alaska; California; ■ Accordingly, the Board amends 5 CFR Hawaii; Idaho; Nevada; Oregon; Washington; SUMMARY: The Merit Systems Protection part 1201 as follows: and Pacific overseas areas). Board (MSPB or Board) is amending its ■ 1. The authority citation for part 1201 5a. Denver Field Office, 165 South Union rules of practice and procedure in this continues to read as follows: Blvd., Suite 318, Lakewood, Colorado 80228– part to reflect the planned closure of its 2211, Facsimile No.: (303) 969–5109, Boston Field Office and Seattle Field Authority: 5 U.S.C. 1204 and 7701, unless (Arizona; Colorado; Kansas—except Kansas Office. otherwise noted. City; Montana; Nebraska; New Mexico; North Dakota; South Dakota; Utah; and Wyoming). Effective March 17, 2004, no new ■ 2. Appendix II to Part 1201 is revised appeals may be filed in the Boston Field to read as follows: ■ 3. Appendix III to Part 1201 is revised Office and Seattle Field Office. On to read as follows: March 17, 2004, areas currently served Appendix II to Part 1201—Appropriate Appendix III to Part 1201—Approved by the Boston Field Office will be Regional or Field Office for Filing Hearing Locations By Regional Office transferred to the Northeastern Regional Appeals Office (Philadelphia, Pennsylvania) and All submissions shall be addressed to the Atlanta Regional Office areas served by the Seattle Field Office Regional Director, if submitted to a regional Birmingham, Alabama will be transferred to the Western office, or the Chief Administrative Judge, if Huntsville, Alabama Regional Office (San Francisco, submitted to a field office, Merit Systems Mobile, Alabama California). Protection Board, at the addresses listed Montgomery, Alabama below, according to geographic region of the Jacksonville, Florida Cases filed in the Boston Field Office employing agency or as required by and Seattle Field Office prior to March Miami, Florida § 1201.4(d) of this part. The facsimile Orlando, Florida 17, 2004, will remain docketed in those numbers listed below are TDD-capable; Pensacola, Florida offices and parties should continue however, calls will be answered by voice Tallahassee, Florida filing pleadings with those offices until before being connected to the TDD. Address Tampa/St. Petersburg, Florida a notice transferring the case is issued. of Appropriate Regional or Field Office and Atlanta, Georgia The Board anticipates closing the Area Served: Augusta, Georgia Boston Field Office and Seattle Field 1. Atlanta Regional Office, 401 West Macon, Georgia Office on March 31, 2004. Peachtree Street, NW., 10th floor, Atlanta, Savannah, Georgia Georgia 30308–3519, Facsimile No.: (404) Accordingly, Appendix II of this part Jackson, Mississippi 730–2767, (Alabama; Florida; Georgia; Charleston, South Carolina is amended to delete the Boston and Mississippi; South Carolina; and Tennessee). Columbia, South Carolina Seattle Field Offices effective March 17, 2. Central Regional Office, 230 South Chattanooga, Tennessee 2004. This amendment reassigns the Dearborn Street, 31st floor, Chicago, Illinois Knoxville, Tennessee areas served by the Boston Field Office 60604–1669, Facsimile No.: (312) 886–4231, Memphis, Tennessee to the Northeastern Regional Office and (Illinois; Indiana; Iowa; Kansas City, Kansas; Nashville, Tennessee Kentucky; Michigan; Minnesota; Missouri; reassigns the areas served by the Seattle Central Regional Office Field Office to the Western Regional Ohio; and Wisconsin). Office. Appendix III of this part is 2a. Dallas Field Office, 1100 Commerce Chicago, Illinois Street, Room 620, Dallas, Texas 75242–9979, Indianapolis, Indiana amended effective March 17, 2004, to Facsimile No.: (214) 767–0102, (Arkansas; Davenport, Iowa/Rock Island, Illinois delete the approved hearing locations Louisiana; Oklahoma; and Texas). Des Moines, Iowa currently listed under the Boston and 3. Northeastern Regional Office, U.S. Lexington, Kentucky Seattle Field Offices and transfer those Customhouse, Room 501, Second and Louisville, Kentucky approved hearing locations to the Chestnut Streets, Philadelphia, Pennsylvania Detroit, Michigan
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Minneapolis/St. Paul, Minnesota Las Vegas, Nevada the electric motors of the hydraulic Kansas City, Missouri Reno, Nevada pump and associated wiring, which Springfield, Missouri Medford, Oregon could result in fire at the auxiliary St. Louis, Missouri Portland, Oregon hydraulic pump and consequent Cleveland, Ohio Seattle, Washington damage to the adjacent electrical Cincinnati, Ohio Spokane, Washington Columbus, Ohio Richland, Kennewick, and Pasco, equipment and/or structure. This action Dayton, Ohio Washington is intended to address the identified Milwaukee, Wisconsin unsafe condition. Denver Field Office Dallas Field Office DATES: Effective April 15, 2004. Phoenix, Arizona The incorporation by reference of Little Rock, Arkansas Tucson, Arizona certain publications listed in the Alexandria, Louisiana Grand Junction, Colorado regulations is approved by the Director New Orleans, Louisiana Lakewood, Colorado of the Federal Register as of April 15, Oklahoma City, Oklahoma Pueblo, Colorado Tulsa, Oklahoma Wichita, Kansas 2004. Corpus Christi, Texas Billings, Montana ADDRESSES: The service information Dallas, Texas Great Falls, Montana referenced in this AD may be obtained El Paso, Texas Missoula, Montana from Boeing Commercial Airplanes, Houston, Texas Omaha, Nebraska San Antonio, Texas Long Beach Division, 3855 Lakewood Albuquerque, New Mexico Boulevard, Long Beach, California Temple, Texas Bismarck, North Dakota Texarkana, Texas Fargo, North Dakota 90846, Attention: Data and Service Management, Dept. C1–L5A (D800– Northeastern Regional Office Rapid City, South Dakota Sioux Falls, South Dakota 0024). This information may be Hartford, Connecticut Salt Lake City, Utah examined at the FAA, Transport New Haven, Connecticut Casper, Wyoming Airplane Directorate, Rules Docket, Dover, Delaware 1601 Lind Avenue, SW., Renton, Bangor, Maine Dated: March 5, 2004. Washington; or at the FAA, Los Angeles Portland, Maine Bentley M. Roberts, Jr., Aircraft Certification Office, 3960 Baltimore, Maryland Clerk of the Board. Boston, Massachusetts Paramount Boulevard, Lakewood, Manchester, New Hampshire [FR Doc. 04–5417 Filed 3–10–04; 8:45 am] California; or at the Office of the Federal Portsmouth, New Hampshire BILLING CODE 7400–01–P Register, 800 North Capitol Street, NW., Trenton, New Jersey suite 700, Washington, DC. Harrisburg, Pennsylvania FOR FURTHER INFORMATION CONTACT: Ken Philadelphia, Pennsylvania DEPARTMENT OF TRANSPORTATION Pittsburgh, Pennsylvania Sujishi, Aerospace Engineer, Systems and Equipment Branch, ANM–130L, Wilkes-Barre, Pennsylvania Federal Aviation Administration Providence, Rhode Island FAA, Los Angeles Aircraft Certification Burlington, Vermont Office, 3960 Paramount Boulevard, Charleston, West Virginia 14 CFR Part 39 Lakewood, California 90712; telephone Morgantown, West Virginia [Docket No. 2001–NM–362–AD; Amendment (562) 627–5353; fax (562) 627–5210. New York Field Office 39–13515; AD 2004–05–20] SUPPLEMENTARY INFORMATION: A proposal to amend part 39 of the Federal Newark, New Jersey RIN 2120–AA64 Albany, New York Aviation Regulations (14 CFR part 39) to Buffalo, New York Airworthiness Directives; McDonnell include an airworthiness directive (AD) New York, New York Douglas Model DC–10–10, DC–10–10F, that is applicable to certain McDonnell Syracuse, New York DC–10–15, DC–10–30, DC–10–30F (KC– Douglas Model DC–10–10, DC–10–10F, San Juan, Puerto Rico 10A and KDC–10), DC–10–40, DC–10– DC–10–15, DC–10–30, DC–10–30F (KC– Washington Regional Office 40F, MD–10–10F, MD–10–30F, MD–11, 10A and KDC–10), DC–10–40, DC–10– Washington, DC and MD–11F Airplanes 40F, MD–10–10F, MD–10–30F, MD–11, Asheville, North Carolina and MD–11F airplanes, was published Charlotte, North Carolina AGENCY: Federal Aviation in the Federal Register on October 15, Raleigh, North Carolina Administration, DOT. 2003 (68 FR 59349). That action Jacksonville, North Carolina ACTION: Final rule. proposed to require modification of the Alexandria, Virginia installation wiring for the electric motor Norfolk, Virginia SUMMARY: This amendment adopts a operated auxiliary hydraulic pumps in Richmond, Virginia new airworthiness directive (AD), the right wheel well area of the main Roanoke, Virginia applicable to certain McDonnell landing gear, and repetitive inspections Western Regional Office Douglas transport category airplanes, of the numbers 1 and 2 electric motors Anchorage, Alaska that requires modification of the of the auxiliary hydraulic pumps for Fresno, California installation wiring for the electric motor electrical resistance, continuity, Los Angeles, California operated auxiliary hydraulic pumps in mechanical rotation, and associated Monterey, California the right wheel well area of the main airplane wiring resistance/voltage; and Sacramento, California landing gear, and repetitive inspections corrective actions if necessary. San Bernardino, California of the numbers 1 and 2 electric motors San Diego, California of the auxiliary hydraulic pumps for Comments San Francisco, California Santa Ana, California electrical resistance, continuity, Interested persons have been afforded Santa Barbara, California mechanical rotation, and associated an opportunity to participate in the Honolulu, Hawaii airplane wiring resistance/voltage; and making of this amendment. Due Boise, Idaho corrective actions if necessary. This consideration has been given to the Pocatello, Idaho action is necessary to prevent failure of comments received.
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Requests To Extend Repetitive There are approximately 195 Model List of Subjects in 14 CFR Part 39 Inspection Interval MD–11 airplanes of the affected design Air transportation, Aircraft, Aviation Two commenters state that they in the worldwide fleet. The FAA safety, Incorporation by reference, support the intent of the proposed rule, estimates that 74 airplanes of U.S. Safety. registry will be affected by this AD. but they request that the proposed Adoption of the Amendment repetitive inspection interval of 2,500 It will take approximately 13 work flight hours be extended to every 18 hours per airplane to do the ■ Accordingly, pursuant to the authority months or 6,000 flight hours. One modification specified in Boeing Alert delegated to me by the Administrator, commenter states that it has been Service Bulletin MD11–29A059, at an the Federal Aviation Administration inspecting the affected pump average labor rate of $65 per work hour. amends part 39 of the Federal Aviation installations every 18 months or 6,000 Required parts will cost between $5,183 Regulations (14 CFR part 39) as follows: flight hours and that none of the and $9,182 per airplane. Based on these affected airplanes or pumps removed figures, the cost impact of the PART 39—AIRWORTHINESS from the affected airplanes exhibit signs modification is estimated to be between DIRECTIVES $6,028 and $10,027 per airplane. of arcing, burnt wiring, or other ■ 1. The authority citation for part 39 It will take approximately 1 work conditions indicative of a fire. continues to read as follows: The FAA does not agree that the hour per airplane to do the inspection repetitive interval should be extended. specified in Boeing Alert Service Authority: 49 U.S.C. 106(g), 40113, 44701. In the ‘‘Discussion’’ section of the Bulletin MD11–29A057, at an average § 39.13 [Amended] labor rate of $65 per work hour. Based preamble of the proposed AD we ■ 2. Section 39.13 is amended by adding advised that investigation revealed that on these figures, the cost impact of the inspection is estimated to be $65 per the following new airworthiness the unsafe condition had occurred on directive: airplanes that had been in service airplane, per inspection cycle. several years and/or had the auxiliary The cost impact figure discussed 2004–05–20 McDonnell Douglas: hydraulic pump previously overhauled. above is based on assumptions that no Amendment 39–13515. Docket 2001– NM–362–AD. In addition, two reports of short circuit operator has yet accomplished any of failure of the motor electrical connector the requirements of this AD action, and Applicability: Model DC–10–10, DC–10– 10F, DC–10–15, DC–10–30, DC–10–30F (KC– of the auxiliary hydraulic pump that no operator would accomplish those actions in the future if this AD 10A and KDC–10), DC–10–40, DC–10–40F, occurred even though the affected MD–10–10F, MD–10–30F, MD–11, and MD– airplanes were being inspected at were not adopted. The cost impact 11F airplanes; certificated in any category. intervals of 18 months or 6,000 flight figures discussed in AD rulemaking Compliance: Required as indicated, unless hours. Therefore, we have determined actions represent only the time accomplished previously. that an inspection interval of 2,500 necessary to perform the specific actions To prevent failure of the electric motors of flight hours will provide an adequate actually required by the AD. These the hydraulic pump and associated wiring, interval to detect and correct the figures typically do not include which could result in fire at the auxiliary hydraulic pump and consequent damage to identified unsafe condition. incidental costs, such as the time required to gain access and close up, the adjacent electrical equipment and/or structure, accomplish the following: Conclusion planning time, or time necessitated by After careful review of the available other administrative actions. Modification/Prior or Concurrent Actions data, including the comments noted Regulatory Impact (a) For airplanes listed in Boeing Alert above, the FAA has determined that air Service Bulletin DC10–29A144, Revision 2, safety and the public interest require the The regulations adopted herein will dated August 1, 2003: Within 18 months after adoption of the rule as proposed. not have a substantial direct effect on the effective date of this AD, do the actions the States, on the relationship between specified in paragraphs (a)(1) and (a)(2) of Cost Impact the national Government and the States, this AD. or on the distribution of power and (1) Modify the installation wiring of the There are approximately 409 Model electric motor operated auxiliary hydraulic DC–10 airplanes of the affected design responsibilities among the various pumps in the right wheel well area of the in the worldwide fleet. The FAA levels of government. Therefore, it is main landing gear (MLG) (including estimates that 322 airplanes of U.S. determined that this final rule does not removing existing clamps, ground wires, if registry will be affected by this AD. have federalism implications under required, and sleeving from the wire It will take approximately 9 work Executive Order 13132. assemblies; inspecting for cracks and chafing, hours per airplane to do the For the reasons discussed above, I installing new support bracket, clips, and modification specified in Boeing Alert certify that this action (1) is not a bracket assemblies, as applicable; installing Service Bulletin DC10–29A144, at an ‘‘significant regulatory action’’ under sleeving; re-routing and attaching wire assemblies using new clamps and average labor rate of $65 per work hour. Executive Order 12866; (2) is not a attachments; installing an additional routing Required parts will cost would be ‘‘significant rule’’ under DOT clip on lower bracket of fuel motor control between $4,886 and $7,920 per airplane. Regulatory Policies and Procedures (44 valve, if applicable; and doing a voltage Based on these figures, the cost impact FR 11034, February 26, 1979); and (3) check and a functional test), per the of the modification is estimated to be will not have a significant economic Accomplishment Instructions of Boeing Alert between $5,471 and $8,505 per airplane. impact, positive or negative, on a Service Bulletin DC10–29A144, Revision 2, It will take approximately 1 work substantial number of small entities dated August 1, 2003. hour per airplane to do the inspection under the criteria of the Regulatory (2) Prior to or concurrent with specified in Boeing Alert Service Flexibility Act. A final evaluation has accomplishment of paragraph (a)(1) of this AD: Do the actions specified in Boeing Alert Bulletin DC10–29A142, at an average been prepared for this action and it is Service Bulletin DC10–29A142, Revision 02, labor rate of $65 per work hour. Based contained in the Rules Docket. A copy dated April 17, 2003 (including inspecting on these figures, the cost impact of the of it may be obtained from the Rules the numbers 1 and 2 electric motors of the inspection is estimated to be $65 per Docket at the location provided under auxiliary hydraulic pumps for electrical airplane, per inspection cycle. the caption ADDRESSES. resistance, continuity, mechanical rotation,
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and associated airplane wiring resistance/ replacing all other wire assemblies for both and associated airplane wiring resistance/ voltage; and replacing the auxiliary hydraulic connectors; installing spiral wrap and voltage; and replacing the auxiliary hydraulic pump with a serviceable pump and repairing sleeving; wrapping upper ends of individual pump with a serviceable pump and repairing the wiring if necessary), per the wires with tape; installing new support the wiring if necessary), per the Accomplishment Instructions of the service bracket assemblies, if applicable; re-routing Accomplishment Instructions of the service bulletin. Repeat the actions after that at and attaching wire assemblies using new bulletin. Repeat the actions after that at intervals not to exceed 2,500 flight hours. clamps and attachments, if applicable; and intervals not to exceed 2,500 flight hours. (b) For airplanes listed in Boeing Alert doing a voltage check and a functional test), Service Bulletin MD11–29A059, Revision 2, per the Accomplishment Instructions of Alternative Methods of Compliance dated August 1, 2003: Within 18 months after Boeing Alert Service Bulletin MD11–29A059, (c) In accordance with 14 CFR 39.19, the the effective date of this AD, do the actions Revision 2, dated August 1, 2003. Manager, Los Angeles Aircraft Certification specified in paragraphs (b)(1) and (b)(2) of (2) Prior to or concurrent with Office, FAA, is authorized to approve this AD. accomplishment of paragraph (b)(1) of this alternative methods of compliance (AMOCs) (1) Modify the installation wiring of the AD: Do the actions specified in Boeing Alert for this AD. electric motor auxiliary hydraulic pumps in Service Bulletin MD11–29A057, Revision 02, the wheel well area of the right MLG dated April 17, 2003 (including inspecting Incorporation by Reference (including removing and retaining wire the numbers 1 and 2 electric motors of the (d) The actions shall be done in accordance assembly clamps, if applicable; retaining the auxiliary hydraulic pumps for electrical with the applicable service bulletins listed in existing ground wire assemblies; retaining or resistance, continuity, mechanical rotation, the following table:
TABLE 1.—APPLICABLE SERVICE BULLETINS
Service bulletin Revision level Date
Boeing Alert Service Bulletin DC10–29A142 ...... Revision 02 ...... April 17, 2003. Boeing Alert Service Bulletin DC10–29A144 ...... Revision 2 ...... August 1, 2003. Boeing Alert Service Bulletin MD11–29A057 ...... Revision 02 ...... April 17, 2003. Boeing Alert Service Bulletin MD11–29A059 including Appendix ...... Revision 2 ...... August 1, 2003.
This incorporation by reference was SUMMARY: The Food and Drug data and information submitted to approved by the Director of the Federal Administration (FDA) is amending the support approval of this application Register in accordance with 5 U.S.C. 552(a) animal drug regulations to reflect may be seen in the Division of Dockets and 1 CFR part 51. Copies may be obtained from Boeing Commercial Airplanes, Long approval of an abbreviated new animal Management (HFA–305), Food and Drug Beach Division, 3855 Lakewood Boulevard, drug application (ANADA) filed by Administration, 5630 Fishers Lane, rm. Long Beach, California 90846, Attention: Phoenix Scientific, Inc. The ANADA 1061, Rockville, MD 20852, between 9 Data and Service Management, Dept. C1–L5A provides for the use of lincomycin a.m. and 4 p.m., Monday through (D800–0024). Copies may be inspected at the injectable solution in swine for the Friday. FAA, Transport Airplane Directorate, Rules treatment of infectious arthritis and The agency has determined under 21 Docket, 1601 Lind Avenue, SW., Renton, mycoplasma pneumonia. Washington; or at the FAA, Los Angeles CFR 25.33(a)(1) that this action is of a Aircraft Certification Office, 3960 Paramount DATES: This rule is effective March 11, type that does not individually or Boulevard, Lakewood, California; or at the 2004. cumulatively have a significant effect on Office of the Federal Register, 800 North FOR FURTHER INFORMATION CONTACT: the human environment. Therefore, Capitol Street, NW., suite 700, Washington, Lonnie W. Luther, Center for Veterinary neither an environmental assessment DC. Medicine (HFV–104), Food and Drug nor an environmental impact statement Effective Date Administration, 7519 Standish Pl., is required. (e) This amendment becomes effective on Rockville, MD 20855, 301–827–8549, e- This rule does not meet the definition April 15, 2004. mail: [email protected]. of ‘‘rule’’ in 5 U.S.C. 804(3)(A) because Issued in Renton, Washington, on February SUPPLEMENTARY INFORMATION: Phoenix it is a rule of ‘‘particular applicability.’’ 26, 2004. Scientific, Inc., 3915 South 48th St. Therefore, it is not subject to the Kalene C. Yanamura, Terrace, St. Joseph, MO 64503, filed congressional review requirements in 5 Acting Manager, Transport Airplane ANADA 200–351 that provides for use U.S.C. 801–808. Directorate, Aircraft Certification Service. of Lincomycin (lincomycin List of Subjects in 21 CFR Part 522 [FR Doc. 04–4937 Filed 3–10–04; 8:45 am] hydrochloride monohydrate) Injectable, BILLING CODE 4910–13–P USP in swine for the treatment of Animal drugs. infectious arthritis and mycoplasma pneumonia. Phoenix Scientific’s ■ Therefore, under the Federal Food, DEPARTMENT OF HEALTH AND Lincomycin Injectable is approved as a Drug, and Cosmetic Act and under HUMAN SERVICES generic copy of Pharmacia & Upjohn authority delegated to the Commissioner Co.’s LINCOMIX Injectable, approved of Food and Drugs and redelegated to the Food and Drug Administration under NADA 034–025. The ANADA is Center for Veterinary Medicine, 21 CFR approved as of February 13, 2004, and part 522 is amended as follows: 21 CFR Part 522 the regulations are amended in 21 CFR 522.1260 to reflect the approval. The PART 522—IMPLANTATION OR Implantation or Injectable Dosage basis of approval is discussed in the INJECTABLE DOSAGE FORM NEW Form New Animal Drugs; Lincomycin freedom of information summary. ANIMAL DRUGS In accordance with the freedom of AGENCY: Food and Drug Administration, ■ 1. The authority citation for 21 CFR HHS. information provisions of 21 CFR part 20 and 21 CFR 514.11(e)(2)(ii), a part 522 continues to read as follows: ACTION: Final rule. summary of safety and effectiveness Authority: 21 U.S.C. 360b.
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§ 522.1260 [Amended] revise and clarify certain aspects of derived from the active conduct of a ■ 2. Section 522.1260 Lincomycin is those regulations. The IRS and Treasury qualified business within any low- amended in paragraph (b)(2) by Department continue to consider income community; (2) a substantial removing ‘‘No. 000857’’ and by adding in comments on the 2001 temporary portion of the use of the tangible its place ‘‘Nos. 000857 and 059130’’. regulations that are not addressed in the property of the entity is within any low- Dated: March 3, 2004. revised regulations. income community; (3) a substantial portion of the services performed for the Stephen F. Sundlof, Explanation of Provisions entity by its employees is performed in Director, Center for Veterinary Medicine. General Overview any low-income community; (4) less [FR Doc. 04–5488 Filed 3–10–04; 8:45 am] than 5 percent of the average of the Taxpayers may claim a new markets BILLING CODE 4160–01–S aggregate unadjusted bases of the tax credit on a credit allowance date in property of the entity is attributable to an amount equal to the applicable certain collectibles; and (5) less than 5 percentage of the taxpayer’s qualified DEPARTMENT OF THE TREASURY percent of the average of the aggregate equity investment in a qualified unadjusted bases of the property of the community development entity (CDE). Internal Revenue Service entity is attributable to certain The credit allowance date for any nonqualified financial property. 26 CFR Part 1 qualified equity investment is the date on which the investment is initially Substantially All [TD 9116] made and each of the 6 anniversary As indicated above, a CDE must use RIN 1545–BC02 dates thereafter. The applicable substantially all of the cash from a percentage is 5 percent for the first 3 qualified equity investment to make New Markets Tax Credit Amendments credit allowance dates and 6 percent for qualified low-income community the remaining credit allowance dates. AGENCY: investments. Section 1.45D–1T(c)(5)(i) Internal Revenue Service (IRS), A CDE is any domestic corporation or Treasury. provides that the substantially-all partnership if: (1) The primary mission requirement is treated as satisfied for an ACTION: Temporary regulations. of the entity is serving or providing annual period if either the direct-tracing SUMMARY: This document contains investment capital for low-income calculation under § 1.45D–1T(c)(5)(ii), amendments to temporary regulations communities or low-income persons; (2) or the safe harbor calculation under for the new markets tax credit under the entity maintains accountability to § 1.45D–1T(c)(5)(iii), is performed every section 45D. The regulations revise and residents of low-income communities six months and the average of the two clarify certain aspects of those through their representation on any calculations for the annual period is at regulations and affect a taxpayer making governing board of the entity or on any least 85 percent. Commentators have a qualified equity investment in a advisory board to the entity; and (3) the suggested that the use of the direct- qualified community development entity is certified by the Secretary for tracing calculation (or the safe harbor entity that has received a new markets purposes of section 45D as being a CDE. calculation) for an annual period should tax credit allocation. The text of these The new markets tax credit may be not preclude the use of the safe harbor temporary regulations also serves as the claimed only for a qualified equity calculation (or the direct-tracing text of the proposed regulations set forth investment in a CDE. A qualified equity calculation) for another annual period. in the notice of proposed rulemaking on investment is any equity investment in The revised regulations adopt this this subject in the Proposed Rules a CDE for which the CDE has received suggestion. section in this issue of the Federal an allocation from the Secretary if, Commentators have suggested that, if Register. among other things, the CDE uses a CDE makes a qualified low-income substantially all of the cash from the community investment from a source of DATES: Effective Date: These regulations investment to make qualified low- funds other than a qualified equity are effective March 11, 2004. income community investments. Under investment (for example, a line of credit Applicability Date: For date of a safe harbor, the substantially-all from a bank), and later uses proceeds of applicability, see § 1.45D–1T(h). requirement is treated as met if at least an equity investment in the CDE to FOR FURTHER INFORMATION CONTACT: Paul 85 percent of the aggregate gross assets reimburse or repay the other source of F. Handleman or Lauren R. Taylor, (202) of the CDE are invested in qualified low- funds, the equity investment should be 622–3040 (not a toll-free number). income community investments. treated as financing the qualified low- SUPPLEMENTARY INFORMATION: Qualified low-income community income community investment on a investments consist of: (1) Any capital Background direct-tracing basis. The revised or equity investment in, or loan to, any regulations do not adopt this suggestion This document amends 26 CFR part 1 qualified active low-income community because, in these circumstances, the to provide amended rules (the revised business; (2) the purchase from another proceeds of the equity investment are regulations) relating to the new markets CDE of any loan made by such entity not ‘‘used . . . to make’’ the qualified tax credit under section 45D of the that is a qualified low-income low-income community investment as Internal Revenue Code (Code). On community investment; (3) financial required by section 45D(b)(1)(B). December 26, 2001, the IRS published counseling and other services to However, the revised regulations temporary and proposed regulations businesses located in, and residents of, provide an example demonstrating that, (the 2001 temporary regulations) in the low-income communities; and (4) in this situation, the substantially-all Federal Register (66 FR 66307, 66 FR certain equity investments in, or loans requirement may be satisfied under the 66376). Written and electronic to, a CDE. safe harbor calculation. comments responding to the 2001 In general, a qualified active low- temporary regulations were received. income community business is a Qualified Low-Income Community The IRS and Treasury Department have corporation or a partnership if for the Investments reviewed the comments on the 2001 taxable year: (1) At least 50 percent of Under section 45D(d)(1)(B), a temporary regulations and decided to the total gross income of the entity is qualified low-income community
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investment includes the purchase from the CDE to purchase the loan within 30 Section 1.45D–1T(d)(4)(i)(C) defines another CDE of any loan made by such days after the date the loan is made. substantial portion for this purpose as entity that is a qualified low-income Section 1.45D–1T(d)(1)(iv) provides 40 percent. Commentators have community investment. Commentators that a qualified low-income community requested guidance on compliance with have suggested that, for purposes of investment includes an equity the services test if an entity has no section 45D(d)(1)(B), a loan by an entity investment in, or loan to, another CDE, employees. One commentator has should be treated as made by a CDE, but only to the extent that the recipient suggested that, if the entity is a even if the entity is not a CDE at the CDE uses the proceeds: (1) for either an partnership and has no employees, the time it makes the loan, so long as the investment in, or a loan to, a qualified test should be applied to the general entity is a CDE at the time it sells the active low-income community business, partners or managing members. The loan. The revised regulations adopt this or financial counseling and other revised regulations provide that, if an suggestion, in accordance with Notice services; and (2) in a manner that would entity has no employees, the entity is 2003–68 (2003–41 I.R.B. 824). constitute a qualified low-income deemed to satisfy the services test (as Commentators also have suggested community investment if it were made well as the requirement in § 1.45D– that the phrase ‘‘made by such entity’’ directly by the CDE making the equity 1T(d)(4)(i)(A) that at least 50 percent of for purposes of section 45D(d)(1)(B) investment or loan. Commentators have the total gross income of the entity be should include any loans held or suggested that this provision should be derived from the active conduct of a purchased by such entity. The revised amended to permit investments through qualified business within a low-income regulations do not adopt this suggestion multiple tiers of CDEs. For example, community) if at least 85 percent of the because it would treat loan purchases as commentators have indicated that some use of the tangible property of the entity qualified low-income community CDEs have reasons relating to bank (whether owned or leased) is within a investments even if the originator or a regulatory requirements for lending to low-income community. bank holding company CDEs that invest prior seller of the loan were not a CDE. Control However, the revised regulations do in bank subsidiary CDEs. The revised Under § 1.45D–1T(d)(6)(i), an entity is contain a special rule, as set forth in regulations amend this provision, in treated as a qualified active low-income Notice 2003–68, that applies to the accordance with Notice 2003–64 (2003– community business if the CDE purchase of a loan by a CDE (the 39 I.R.B. 646), to permit investments through two additional CDEs. reasonably expects, at the time the CDE ultimate CDE) from a second CDE if the makes the capital or equity investment loan was made by a third CDE (the Qualified Active Low-Income in, or loan to, the entity, that the entity originating CDE). Specifically, the Community Business will satisfy the requirements to be a revised regulations provide that, for Section 45D(d)(2)(A)(i) provides that a qualified active low-income community purposes of section 45D(d)(1)(B): (1) The corporation (including a nonprofit business throughout the entire period of purchase of a loan by the ultimate CDE corporation) or a partnership is a the investment or loan. However, under from a second CDE that purchased the qualified active low-income community § 1.45D–1T(d)(6)(ii)(A), if the CDE loan from the originating CDE (or from business only if, among other things, at controls or obtains control of the entity another CDE) is treated as a purchase of least 50 percent of the total gross at any time during the 7-year credit the loan by the ultimate CDE from the income of the entity is derived from the period, the entity will be treated as a originating CDE, provided that each active conduct of a qualified business qualified active low-income community entity that sold the loan was a CDE at within any low-income community. business only if the entity satisfies the the time it sold the loan; and (2) a loan Commentators have requested applicable requirements throughout the purchased by the ultimate CDE from clarification of the meaning of ‘‘active entire period the CDE controls the another CDE is a qualified low-income conduct’’. Some commentators have entity. Section 1.45D–1T(d)(6)(ii)(B) community investment if it qualifies as suggested that the term should include generally defines control with respect to a qualified low-income community start-up businesses, including the an entity as direct or indirect ownership investment either (A) at the time the development of commercial rental (based on value) or control (based on loan was made or (B) at the time the property. Other commentators have voting or management rights) of 33 ultimate CDE purchases the loan. suggested defining active conduct by percent or more of the entity. Commentators have suggested that, in focusing on the economic effect of a Commentators have suggested that this certain circumstances in which a CDE particular business activity. The revised definition should be revised to increase purchases a loan from another entity regulations provide a special rule that the threshold for control. The revised under an advance commitment makes clear that an entity will be treated regulations amend the definition of agreement, the loan should be treated as as engaged in the active conduct of a control to mean direct or indirect made by the CDE and therefore eligible trade or business if, at the time the CDE ownership (based on value) or control to be a qualified low-income community makes a capital or equity investment in, (based on voting or management rights) investment. The revised regulations or loan to, the entity, the CDE of more than 50 percent of the entity. provide that, for these purposes, a loan reasonably expects that the entity will Commentators have suggested that if is treated as made by a CDE to the extent generate revenues (or, in the case of a a CDE obtains control of an entity the CDE purchases the loan from the nonprofit corporation, receive subsequent to making an investment in originator (whether or not the originator donations) within 3 years after the date the entity, the CDE should be granted a is a CDE) within 30 days after the date the investment or loan is made. reasonable period (such as 12 months) the originator makes the loan if, at the Section 45D(d)(2)(A)(iii) provides that either to cause the entity to satisfy the time the loan is made, there is a legally a corporation or a partnership is a requirements to be a qualified active enforceable written agreement between qualified active low-income community low-income community business or to the originator and the CDE which (A) business only if, among other things, a find a replacement investment. The requires the CDE to approve the making substantial portion of the services revised regulations provide a 12-month of the loan either directly or by performed for such entity by its period during which a CDE’s acquisition imposing specific written loan employees are performed in a low- of control of an entity is disregarded if, underwriting criteria and (B) requires income community (the services test). among other things, the CDE’s
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investment in the entity met the List of Subjects in 26 CFR Part 1 ■ 11. Adding new paragraph (d)(6)(ii)(C), reasonable expectations test of § 1.45D– Income taxes, Reporting and a new paragraph (d)(8), new paragraphs 1T(d)(6)(i) when initially made and the recordkeeping requirements. (g)(3) and (g)(4). acquisition of control is due to ■ 12. Revising paragraph (h). unforeseen financial difficulties of the Amendments to the Regulations The additions and revisions read as entity. ■ Accordingly, 26 CFR part 1 is amended follows: Other Issues as follows: § 1.45D–1T New markets tax credit (temporary). Commentators have suggested that PART 1—INCOME TAXES taxpayers should be able to claim the (a) * * * new markets tax credit in the event the ■ Paragraph 1. The authority citation for * * * * * CDE in which the qualified equity part 1 continues to read in part as (c) * * * investment is made becomes bankrupt. follows: (3) * * * (ii) Exceptions. The revised regulations adopt this Authority: 26 U.S.C. 7805 * * * suggestion. (A) Allocation applications submitted by ■ Par. 2. Section 1.45D–1T is amended August 29, 2002. The revised regulations incorporate by: (B) Other allocation applications. Notice 2003–9 (2003–5 I.R.B. 369), ■ 1. Revising the section heading. (iii) Failure to receive allocation. which permits certain equity ■ 2. Amending paragraph (a) by: (iv) Initial investment date. investments made on or after April 20, (a) Amending the entry for (c)(3)(ii) by * * * * * 2001, to be designated as qualified removing the word ‘‘Exception’’ and by (5) * * * equity investments, and Notice 2003–56 adding the word ‘‘Exceptions’’ in its (vi) Examples. (2003–34 I.R.B. 396), which permits place. * * * * * certain equity investments made on or (b) Adding new entries for (c)(3)(ii)(A) (d) * * * after the date the Treasury Department and (B). (1) * * * publishes a Notice of Allocation (c) Redesignating the entry for (ii) * * * Availability to be designated as (c)(3)(iii) as (c)(3)(iv). (A) In general. qualified equity investments. The (B) Certain loans made before CDE (d) Adding a new entry for (c)(3)(iii). certification. revised regulations also incorporate (e) Adding a new entry for (c)(5)(vi). Notice 2002–64 (2002–41 I.R.B. 690), (C) Intermediary CDEs. (f) Adding new entries for (D) Examples. which provides guidance on Federal tax (d)(1)(ii)(A), (d)(1)(ii)(B), (d)(1)(ii)(C), benefits that do not limit the availability * * * * * and (d)(1)(ii)(D). (iv) * * * of the new markets tax credit. The IRS (g) Adding new entries for and Treasury Department continue to (A) In general. (d)(1)(iv)(A) and (d)(1)(iv)(B). (B) Examples. study how the low-income housing (h) Adding new entries for (d)(4)(iv), * * * * * credit under section 42 may limit the (d)(4)(iv)(A), and (d)(4)(iv)(B). availability of the new markets tax (4) * * * (i) Adding a new entry for (d)(6)(ii)(C). (iv) Active conduct of a trade or business. credit. (j) Adding new entries for (d)(8), (A) Special rule. Special Analyses (d)(8)(i), and (d)(8)(ii). (B) Example. (k) Adding new entries for (g)(3), * * * * * It has been determined that this (g)(3)(i), (g)(3)(ii), and (g)(4) (6) * * * Treasury decision is not a significant (l) Amending the entry for (h) by * * * * * regulatory action as defined in removing the word ‘‘Date’’ and by (ii) * * * Executive Order 12866. Therefore, a adding the word ‘‘Dates’’ in its place. regulatory assessment is not required. It * * * * * (m) Adding new entries for (h)(1) and (C) Disregard of control. also has been determined that section (h)(2). 553(b) of the Administrative Procedure * * * * * ■ Act (5 U.S.C. chapter 5) does not apply 3. Amending paragraph (c)(3)(ii) by (8) Special rule for certain loans. removing the word ‘‘Exception’’ and by (i) In general. to these regulations. For applicability of (ii) Example. the Regulatory Flexibility Act (5 U.S.C. adding the word ‘‘Exceptions’’ in its 601 et seq.), refer to the cross-reference place. * * * * * (g) * * * notice of proposed rulemaking ■ 4. Revising paragraphs (c)(3)(ii)(A) and (c)(3)(ii)(B). (3) Other Federal tax benefits. published elsewhere in this issue of the (i) In general. Federal Register. Pursuant to section ■ 5. Removing paragraph (c)(3)(ii)(C) and (ii) Low-income housing credit. 7805(f) of the Code, these amendments (c)(3)(ii)(D). (4) Bankruptcy of CDE. to the 2001 temporary regulations will ■ 6. Redesignating paragraph (c)(3)(iii) as (h) Effective dates. be submitted to the Chief Counsel for paragraph (c)(3)(iv). (1) In general. (2) Exception for certain provisions. Advocacy of the Small Business ■ 7. Adding a new paragraph (c)(3)(iii), Administration for comment on their a sentence after the third sentence in * * * * * impact on small business. paragraph (c)(5)(i), a new paragraph (c) * * * (3) * * * Drafting Information (c)(5)(vi). (ii) Exceptions. *** ■ The principal author of these 8. Revising paragraphs (d)(1)(ii) and (A) Allocation applications submitted regulations is Paul F. Handleman, Office (iv). by August 29, 2002. of the Associate Chief Counsel ■ 9. Adding a sentence at the end of (1) The equity investment is made on (Passthroughs and Special Industries), paragraph (d)(4)(i)(A), a sentence at the or after April 20, 2001; IRS. However, other personnel from the end of paragraph (d)(4)(i)(C), a new (2) The designation of the equity IRS and Treasury Department paragraph (d)(4)(iv). investment as a qualified equity participated in their development. ■ 10. Revising paragraph (d)(6)(ii)(B) investment is made for a credit
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allocation received pursuant to an million loan to Y and $100,000 in other annual period ending July 31, 2006, Y, but allocation application submitted to the assets. A’s equity investment in X does not not Z, is a qualified active low-income Secretary no later than August 29, 2002; satisfy the substantially-all requirement community business. Thus, for the annual and under paragraph (c)(5)(i) of this section using period ending July 31, 2006: (1) X does not (3) The equity investment otherwise the direct-tracing calculation under satisfy the substantially-all requirement using paragraph (c)(5)(ii) of this section because the the safe harbor calculation under paragraph satisfies the requirements of section 45D cash from A’s equity investment is not used (c)(5)(iii) of this section; (2) A’s equity and this section; or to make X’s loan to Y. However, A’s equity investment satisfies the substantially-all (B) Other allocation applications. investment in X satisfies the substantially-all requirement using the direct-tracing (1) The equity investment is made on requirement using the safe harbor calculation calculation because A’s equity investment is or after the date the Secretary publishes under paragraph (c)(5)(iii) of this section directly traceable to Y; and (3) B’s equity a Notice of Allocation Availability because at least 85 percent of X’s aggregate investment does not satisfy the substantially- (NOAA) in the Federal Register; gross assets are invested in qualified low- all requirement because B’s equity (2) The designation of the equity income community investments. investment is traceable to Z. investment as a qualified equity Example 2. X is a partnership and a CDE * * * * * investment is made for a credit that has received a new markets tax credit allocation from the Secretary. On August 1, (d) * * * allocation received pursuant to an 2004, A pays $100,000 for a capital interest (1) * * * allocation application submitted to the in X. On August 5, 2004, X uses the proceeds (ii) Purchase of certain loans from Secretary under that NOAA; and of A’s equity investment to make an equity CDEs—(A) In general. The purchase by (3) The equity investment otherwise investment in Y. X controls Y within the a CDE (the ultimate CDE) from another satisfies the requirements of section 45D meaning of paragraph (d)(6)(ii)(B) of this CDE (whether or not that CDE has and this section. section. For the annual period ending July (iii) Failure to receive allocation. For 31, 2005, Y is a qualified active low-income received an allocation from the purposes of paragraph (c)(3)(ii)(A) of community business (as defined in paragraph Secretary under section 45D(f)(2)) of any this section, if the entity in which the (d)(4) of this section). Thus, for that period, loan made by such entity that is a equity investment is made does not A’s equity investment satisfies the qualified low-income community substantially-all requirement under receive an allocation pursuant to an investment. A loan purchased by the paragraph (c)(5)(i) of this section using the ultimate CDE from another CDE is a allocation application submitted no direct-tracing calculation under paragraph later than August 29, 2002, the equity qualified low-income community (c)(5)(ii) of this section. For the annual period investment if it qualifies as a qualified investment will not be eligible to be ending July 31, 2006, Y no longer is a designated as a qualified equity qualified active low-income community low-income community investment investment. For purposes of paragraph business. Thus, for that period, A’s equity either— (c)(3)(ii)(B) of this section, if the entity investment does not satisfy the substantially- (1) At the time the loan was made; or in which the equity investment is made all requirement using the direct-tracing (2) At the time the ultimate CDE does not receive an allocation under the calculation. However, during the entire purchases the loan. annual period ending July 31, 2006, X’s NOAA described in paragraph (B) Certain loans made before CDE remaining assets are invested in qualified certification. For purposes of paragraph (c)(3)(ii)(B)(1) of this section, the equity low-income community investments with an investment will not be eligible to be (d)(1)(ii)(A) of this section, a loan by an aggregate cost basis of $900,000. entity is treated as made by a CDE, designated as a qualified equity Consequently, for the annual period ending notwithstanding that the entity was not investment. July 31, 2006, at least 85 percent of X’s a CDE at the time it made the loan, if * * * * * aggregate gross assets are invested in qualified low-income community the entity is a CDE at the time it sells (5) * * * the loan. (i) * * * The use of the direct-tracing investments. Thus, for the annual period (C) Intermediary CDEs. For purposes calculation under paragraph (c)(5)(ii) of ending July 31, 2006, A’s equity investment satisfies the substantially-all requirement of paragraph (d)(1)(ii)(A) of this section, this section (or the safe harbor using the safe harbor calculation under the purchase of a loan by the ultimate calculation under paragraph (c)(5)(iii) of paragraph (c)(5)(iii) of this section. CDE from a CDE that did not make the this section) for an annual period does Example 3. X is a partnership and a CDE loan (the second CDE) is treated as a not preclude the use of the safe harbor that has received a new markets tax credit purchase of the loan by the ultimate calculation under paragraph (c)(5)(iii) of allocation from the Secretary. On August 1, CDE from the CDE that made the loan this section (or the direct-tracing 2004, A and B each pay $100,000 for a capital (the originating CDE) if— calculation under paragraph (c)(5)(ii) of interest in X. X does not treat A’s and B’s (1) The second CDE purchased the this section) for another annual period. equity investments as one qualified equity loan from the originating CDE (or from *** investment under paragraph (c)(6) of this section. On September 1, 2004, X uses the another CDE); and * * * * * proceeds of A’s equity investment to make an (2) Each entity that sold the loan was (vi) Examples. The following equity investment in Y and X uses the a CDE at the time it sold the loan. examples illustrate an application of proceeds of B’s equity investment to make an (D) Examples. The following equity investment in Z. X has no assets other examples illustrate an application of this paragraph (c)(5): than its investments in Y and Z. X controls Example 1. X is a partnership and a CDE Y and Z within the meaning of paragraph this paragraph (d)(1)(ii): that has received a $1 million new markets (d)(6)(ii)(B) of this section. For the annual Example 1. X is a partnership and a CDE tax credit allocation from the Secretary. On period ending July 31, 2005, Y and Z are that has received a new markets tax credit September 1, 2004, X uses a line of credit qualified active low-income community allocation from the Secretary. Y, a from a bank to fund a $1 million loan to Y. businesses (as defined in paragraph (d)(4) of corporation, made a $500,000 loan to Z in The loan is a qualified low-income this section). Thus, for the annual period 1999. In January of 2004, Y is certified as a community investment under paragraph ending July 31, 2005, A’s and B’s equity CDE. On September 1, 2004, X purchases the (d)(1) of this section. On September 5, 2004, investments satisfy the substantially-all loan from Y. At the time X purchases the A pays $1 million to acquire a capital interest requirement under paragraph (c)(5)(i) of this loan, Z is a qualified active low-income in X. X uses the proceeds of A’s equity section using either the direct-tracing community business under paragraph investment to pay off the $1 million line of calculation under paragraph (c)(5)(ii) of this (d)(4)(i) of this section. Accordingly, the loan credit that was used to fund the loan to Y. section or the safe harbor calculation under purchased by X from Y is a qualified low- X’s aggregate gross assets consist of the $1 paragraph (c)(5)(iii) of this section. For the income community investment under
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paragraphs (d)(1)(ii)(A) and (B) of this equity investment in X, $925,000 is a reasonably expects that Y will generate section. qualified low-income community investment revenues beginning in December 2005. Under Example 2. The facts are the same as in under paragraph (d)(1)(iv)(A)(2) of this paragraph (d)(4)(iv)(A) of this section, Y is Example 1 except that on February 1, 2004, section because X uses proceeds of W’s treated as engaged in the active conduct of Y sells the loan to W and on September 1, equity investment to make an equity a trade or business for purposes of paragraph 2004, W sells the loan to X. W is a CDE. investment in Y, which uses $925,000 of the (d)(4)(i)(A) of this section. Under paragraph (d)(1)(ii)(C) of this section, proceeds in a manner described in paragraph X’s purchase of the loan from W is treated (d)(1)(iv)(A)(1) of this section. * * * * * as the purchase of the loan from Y. Example 3. U is a partnership and a CDE (6) * * * Accordingly, the loan purchased by X from that has received a new markets tax credit (ii) * * * W is a qualified low-income community allocation from the Secretary. On September (B) Definition of control. Control investment under paragraphs (d)(1)(ii)(A) and 1, 2004, U uses $975,000 to make an equity means, with respect to an entity, direct (C) of this section. investment in V. On October 1, 2004, V uses or indirect ownership (based on value) Example 3. The facts are the same as in $950,000 from U’s equity investment to make or control (based on voting or Example 2 except that W is not a CDE. an equity investment in W. On October 5, management rights) of more than 50 Because W was not a CDE at the time it sold 2004, W uses $925,000 from V’s equity percent of the entity. the loan to X, the purchase of the loan by X investment to make an equity investment in (C) Disregard of control. For purposes from W is not a qualified low-income X. On November 1, 2004, X uses $900,000 of paragraph (d)(6)(ii)(A) of this section, from W’s equity investment to make an community investment under paragraphs the acquisition of control of an entity by (d)(1)(ii)(A) and (C) of this section. equity investment in Y. V, W, X, and Y are corporations and CDEs. On November 5, a CDE is disregarded during the 12- * * * * * 2004, Y uses $875,000 from X’s equity month period following such (iv) Investments in other CDEs—(A) In investment to make a loan to Z. Z is a acquisition of control (the 12-month general. Any equity investment in, or qualified active low-income community period) if— loan to, any CDE (the second CDE) by business under paragraph (d)(4)(i) of this (1) The CDE’s capital or equity a CDE (the primary CDE), but only to the section. U’s equity investment in V is not a investment in, or loan to, the entity met extent that the second CDE uses the qualified low-income community investment the requirements of paragraph (d)(6)(i) proceeds of the investment or loan— because X does not use proceeds of W’s of this section when initially made; (1) In a manner— equity investment in a manner described in (2) The CDE’s acquisition of control of paragraph (d)(1)(iv)(A)(1) of this section. (i) That is described in paragraph the entity is due to financial difficulties (d)(1)(i) or (iii) of this section; and * * * * * of the entity that were unforeseen at the (ii) That would constitute a qualified (4) * * * time the investment or loan described in low-income community investment if it (i) * * * paragraph (d)(6)(ii)(C)(1) of this section were made directly by the primary CDE; (A) * * * See paragraph (d)(4)(iv) of was made; and (2) To make an equity investment in, this section for circumstances in which (3) If the acquisition of control occurs or loan to, a third CDE that uses such an entity will be treated as engaged in before the seventh year of the 7-year proceeds in a manner described in the active conduct of a trade or credit period (as defined in paragraph paragraph (d)(1)(iv)(A)(1) of this section; business. (c)(5)(i) of this section), either— or * * * * * (i) The entity satisfies the (3) To make an equity investment in, (C) * * * If the entity has no requirements of paragraph (d)(4) of this or loan to, a third CDE that uses such employees, the entity is deemed to section by the end of the 12-month proceeds to make an equity investment satisfy this paragraph (d)(4)(i)(C), and period; or in, or loan to, a fourth CDE that uses paragraph (d)(4)(i)(A) of this section, if (ii) The CDE sells or causes to be such proceeds in a manner described in the entity meets the requirement of redeemed the entire amount of the paragraph (d)(1)(iv)(A)(1) of this section. paragraph (d)(4)(i)(B) of this section if investment or loan described in (B) Examples. The following ‘‘85 percent’’ is applied instead of 40 paragraph (d)(6)(ii)(C)(1) of this section examples illustrate an application of percent. and, by the end of the 12-month period, reinvests the amount received in respect paragraph (d)(1)(iv)(A) of this section: * * * * * of the sale or redemption in a qualified Example 1. X is a partnership and a CDE (iv) Active conduct of a trade or that has received a new markets tax credit business—(A) Special rule. For low-income community investment allocation from the Secretary. On September purposes of paragraph (d)(4)(i)(A) of this under paragraph (d)(1) of this section. 1, 2004, X uses $975,000 to make an equity section, an entity will be treated as For this purpose, the amount treated as investment in Y. Y is a corporation and a engaged in the active conduct of a trade continuously invested in a qualified CDE. On October 1, 2004, Y uses $950,000 low-income community investment is from X’s equity investment to make a loan to or business if, at the time the CDE makes a capital or equity investment in, determined under paragraphs (d)(2)(i) Z. Z is a qualified active low-income and (ii) of this section. community business under paragraph or loan to, the entity, the CDE (d)(4)(i) of this section. Of X’s equity reasonably expects that the entity will * * * * * investment in Y, $950,000 is a qualified low- generate revenues (or, in the case of a (8) Special rule for certain loans—(i) income community investment under nonprofit corporation, receive In general. For purposes of paragraphs paragraph (d)(1)(iv)(A)(1) of this section. donations) within 3 years after the date (d)(1)(i), (ii), and (iv) of this section, a Example 2. W is a partnership and a CDE the investment or loan is made. loan is treated as made by a CDE to the that has received a new markets tax credit (B) Example. The application of extent the CDE purchases the loan from allocation from the Secretary. On September paragraph (d)(4)(iv)(A) of this section is the originator (whether or not the 1, 2004, W uses $975,000 to make an equity illustrated by the following example: originator is a CDE) within 30 days after investment in X. On October 1, 2004, X uses the date the originator makes the loan if, $950,000 from W’s equity investment to Example. X is a partnership and a CDE that make an equity investment in Y. X and Y are receives a new markets tax credit allocation at the time the loan is made, there is a corporations and CDEs. On October 5, 2004, from the Secretary on July 1, 2004. X makes legally enforceable written agreement Y uses $925,000 from X’s equity investment a ten-year loan to Y. Y is a newly formed between the originator and the CDE to make a loan to Z. Z is a qualified active entity that will own and operate a shopping which— low-income community business under center to be constructed in a low-income (A) Requires the CDE to approve the paragraph (d)(4)(i) of this section. Of W’s community. Y has no revenues but X making of the loan either directly or by
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imposing specific written loan a taxpayer from continuing to claim the SUPPLEMENTARY INFORMATION: underwriting criteria; and new markets tax credit on the remaining I. Background on the Maryland Program (B) Requires the CDE to purchase the credit allowance dates under paragraph II. Submission of the Proposed Amendment loan within 30 days after the date the (b)(2) of this section. III. OSM’s Findings loan is made. (h) Effective dates—(1) In general. IV. Summary and Disposition of Comments (ii) Example. The application of Except as provided in paragraph (h)(2) V. OSM’s Decision paragraph (d)(8)(i) of this section is of this section, this section applies on or VI. Procedural Determinations illustrated by the following example: after December 26, 2001, and expires on I. Background on the Maryland Example. (i) X is a partnership and a CDE December 23, 2004. Program that has received a new markets tax credit (2) Exception for certain provisions. Paragraphs (c)(3)(ii), (c)(3)(iii), (c)(5)(vi), Section 503(a) of the Act permits a allocation from the Secretary. On October 1, State to assume primacy for the 2004, Y enters into a legally enforceable (d)(1)(ii), (d)(1)(iv), (d)(4)(iv), written agreement with W. Y and W are (d)(6)(ii)(B), (d)(6)(ii)(C), (d)(8), (g)(3), regulation of surface coal mining and corporations but only Y is a CDE. The and (g)(4) of this section, the fourth reclamation operations on non-Federal agreement between Y and W provides that Y sentence in paragraph (c)(5)(i) of this and non-Indian lands within its borders will purchase loans (or portions thereof) from section, the last sentence in paragraph by demonstrating that its State program W within 30 days after the date the loan is includes, among other things, ‘‘a State made by W, and that Y will approve the (d)(4)(i)(A) of this section, and the last sentence in paragraph (d)(4)(i)(C) of this law which provides for the regulation of making of the loans. surface coal mining and reclamation (ii) On November 1, 2004, W makes a section apply on or after March 11, 2004, and may be applied by taxpayers operations in accordance with the $825,000 loan to Z pursuant to the agreement requirements of the Act * * *; and between Y and W. Z is a qualified active low- before March 11, 2004. The paragraphs income community business under of this section that apply before March rules and regulations consistent with paragraph (d)(4) of this section. On 11, 2004 are contained in § 1.45D–1T as regulations issued by the Secretary November 15, 2004, Y purchases the loan in effect before March 11, 2004 (see 26 pursuant to the Act.’’ See 30 U.S.C. from W for $840,000. On December 31, 2004, CFR part 1 revised as of April 1, 2003). 1253(a)(1) and (7). On the basis of these X purchases the loan from Y for $850,000. criteria, the Secretary of the Interior (iii) Under paragraph (d)(8)(i) of this Mark E. Matthews, conditionally approved the Maryland section, the loan to Z is treated as made by Deputy Commissioner for Services and program on December 1, 1980. You can Y. Y’s loan to Z is a qualified low-income Enforcement. find background information on the community investment under paragraph Approved: March 3, 2004. Maryland program, including the (d)(1)(i) of this section. Accordingly, under paragraph (d)(1)(ii)(A) of this section, X’s Gregory F. Jenner, Secretary’s findings, the disposition of purchase of the loan from Y is a qualified Acting Assistant Secretary of the Treasury. comments, and conditions of approval low-income community investment in the [FR Doc. 04–5560 Filed 3–10–04; 8:45 am] in the December 1, 1980, Federal amount of $850,000. Register (45 FR 79430). You can also BILLING CODE 4830–01–P find later actions concerning Maryland’s * * * * * program and program amendments at 30 (g) * * * CFR 920.12, 920.15 and 920.16. (3) Other Federal tax benefits—(i) In DEPARTMENT OF THE INTERIOR general. Except as provided in II. Submission of the Proposed paragraph (g)(3)(ii) of this section, the Office of Surface Mining Reclamation Amendment and Enforcement availability of Federal tax benefits does By letter dated September 16, 2003, not limit the availability of the new Maryland sent us a proposed 30 CFR Part 920 markets tax credit. Federal tax benefits amendment to its program that do not limit the availability of the [MD–051–FOR] (Administrative Record No. MD–585– new markets tax credit include, for 00) under SMCRA (30 U.S.C. 1201 et example: Maryland Regulatory Program seq.). Maryland sent the amendment to (A) The rehabilitation credit under AGENCY: Office of Surface Mining include changes made at its own section 47; Reclamation and Enforcement, Interior. initiative. (B) All depreciation deductions under The provisions of COMAR that sections 167 and 168, including the ACTION: Final rule; approval of Maryland proposes to revise are as additional first-year depreciation under amendment. follows: COMAR, 26.20.03.07 Augering, section 168(k), and the expense SUMMARY: We, the Office of Surface A and B; 26.20.03.11 Lands Eligible for deduction for certain depreciable Mining Reclamation and Enforcement Remining, A, B, (1), (2), C, and D; property under section 179; and (OSM), are approving an amendment to 26.20.05.01 Required Written Findings, (C) All tax benefits relating to certain the Maryland regulatory program (the A, B, C, L, (1), (2), and (3), and designated areas such as empowerment ‘‘Maryland program’’) under the Surface 26.20.25.02 Topsoil Handling, D. The zones and enterprise communities Mining Control and Reclamation Act of specific amendments to COMAR are under sections 1391 through 1397D, the 1977 (SMCRA or the Act). The program identified below in the ‘‘OSM Findings’’ District of Columbia Enterprise Zone amendment includes changes to the section. under sections 1400 through 1400B, Code of Maryland Regulations (COMAR) We announced receipt of the renewal communities under sections to incorporate various revisions related proposed amendment in the October 27, 1400E through 1400J, and the New York to: augering, lands eligible for remining, 2003, Federal Register (68 FR 61172). In Liberty Zone under section 1400L. required written findings, and topsoil the same document, we opened the (ii) Low-income housing credit. This handling. public comment period and provided an paragraph (g)(3) does not apply to the opportunity for a public hearing or low-income housing credit under EFFECTIVE DATE: March 11, 2004. meeting on the amendment’s adequacy. section 42. FOR FURTHER INFORMATION CONTACT: We did not hold a public hearing or (4) Bankruptcy of CDE. The George Rieger, Telephone: 412–937– meeting because no one requested one. bankruptcy of a CDE does not preclude 2153. Internet: [email protected]. The public comment period ended on
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November 21, 2003. We received requirements of the Regulatory Program affecting the land in the future by strip comments from one citizen, the U.S can be met. or underground mining operations is Environmental Protection Agency (EPA) C. The identification of the minimized’’ is deleted and the and the Natural Resources Conservation environmental and safety problems Subsection has been revised to read: Service (NRCS). required under section B (1) of this ‘‘For permits issued under COMAR regulation shall include visual III. OSM’s Findings 26.20.03.11, the permit application must observations at the site, a record review contain: The following findings are made of past mining at the site, and (1) Land eligible for remining; concerning the amendment under environmental sampling tailored to SMCRA and the Federal regulations at current site conditions. (2) An identification of the potential 30 CFR 732.15 and 732.17. We are D. The requirements of the regulation environmental and safety problems approving the amendment. Any shall not apply after September 30, related to the prior mining activities revisions that we do not specifically 2004. which could reasonably be anticipated discuss below concern nonsubstantive This revision was prompted by a to occur at the site; and wording or editorial changes. The full recommendation included in OSM’s EY (3) Mitigation plans to sufficiently text of the changes can be found below 2001 topical study entitled ‘‘Maryland address these potential environmental and in the October 27, 2003, Federal Remining.’’ Maryland’s proposed safety problems so that reclamation as revision is substantively identical to the Register (68 FR 61172). required by the applicable requirements Federal requirements contained in 30 of the Regulatory Program can be 26.20.03.07 Augering CFR 785.25. Therefore we are approving accomplished.’’ Maryland proposes to revise this the amendment. These revisions were prompted by a section by recoding section A and 26.20.05.01 Required Written Findings adding section B to read as follows: ‘‘No recommendation included in OSM’s EY permit shall be issued for any augering This section is being revised to delete 2001 topical study entitled ‘‘Maryland operations unless the Bureau [Bureau of ‘‘A,’’ ‘‘may not,’’ and ‘‘that,’’ and now Remining.’’ In the past, Maryland’s Mines] finds, in writing, that the reads: ‘‘No permit application or regulatory program did not include the operation meets all other requirements application for a significant revision of specific requirements for permit written of this subtitle and will be conducted in a permit shall be approved unless the findings related to remining operations compliance with COMAR 26.20.24.01.’’ application affirmatively demonstrates that are being added by this revision. This revision was prompted by a and the Bureau finds, in writing, on the Maryland’s proposed revisions adopt recommendation included in OSM’s basis of information set forth in the language that is substantively identical Evaluation Year (EY) 2000 topical study application, or information otherwise to the Federal regulations at 30 CFR entitled ‘‘Maryland Permit Findings.’’ available and documented in the 773.15, 773.15(a), (b), (e), and (m). Maryland’s proposed revisions to approval under COMAR 26.20.04.11(A), Therefore, we are approving the COMAR make its regulatory program no the following’’— amendment. A. ’’Complies’’ is deleted and the less effective than 30 CFR 785.20(c) by subsection now reads: ‘‘The permit Maryland proposes to revise section requiring a written finding before application is complete and accurate 26.20.25.02 (Topsoil Handling) as augering operations may be conducted. and the applicant has complied with all follows: Therefore, we are approving the requirements of the regulatory In subsection D, the word ‘‘topsoil’’, amendment. program’’; the phrase ‘‘in the amounts determined 26.20.03.11 Lands Eligible for B. The words ‘‘Surface coal mining by soil tests’’, the phrase ‘‘* * * surface Remining and’’ as well as ‘‘mining and’’ are soil layer so that it supports the deleted and the subsection is revised to Maryland proposes to add this new approved post mining land use and read: ‘‘The applicant has demonstrated section consisting of the following meets the revegetation requirements,’’ that reclamation operations as required subsections: and the sentence ‘‘All soil tests shall be by the Regulatory Program can be A. This regulation applies to any performed by a qualified laboratory or feasibly accomplished under the person using standard methods person who conducts or intends to reclamation plan contained in the conduct a surface coal mining operation approved by the Bureau’’ have been application;’’ deleted. The revised subsection D, on lands eligible for remining. C. The phrase ‘‘has been made’’ has B. Any application for a permit under entitled ‘‘Nutrients and Soil been deleted and the subsection has Amendments,’’ now reads ‘‘Nutrients this regulation shall be made according been revised to read: ‘‘The Bureau has to all requirements of this subtitle and soil amendments shall be applied to made an assessment of the probable the initially redistributed material when applicable to surface coal mining and cumulative impacts of all anticipated reclamation operations. In addition, the necessary to establish the vegetative coal mining in the cumulative impact cover.’’ application shall— area on the hydrologic balance and has (1) To the extent not otherwise determined that the operations Maryland’s proposed revisions to this addressed in the permit application, proposed under the application have section are intended to eliminate the identify potential environmental and been designed to prevent material requirement to have soil tested by a safety problems related to prior mining damage to the hydrologic balance qualified laboratory prior to activities at the site that could be outside the proposed permit area;’’ redistributing the topsoil during the reasonably anticipated to occur; and D.–K. (text unchanged) reclamation of the operation. There is (2) With regard to potential L. The sentence, ‘‘The activities are no Federal counterpart to this deleted environmental and safety problems conducted so as to reasonably maximize requirement. However, the revised referred to in section B (1) of this the use of coal, while using the best subsection is identical to the Federal regulation, describe the mitigative appropriate technology currently regulations at 30 CFR 816.22(d)(4). measures that will be taken to ensure available to maintain environmental Therefore, we are approving the that the applicable reclamation integrity, so that the probability of re- amendment.
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IV. Summary and Disposition of to the hydrologic balance outside the Executive Order 12988—Civil Justice Comments proposed permit area to be substantively Reform identical to the counterpart Federal Public Comments regulations. While the NRCS’s concerns The Department of the Interior has We received a letter dated November do not bear upon our decision to conducted the reviews required by 25, 2003, by a citizen (Administrative approve this amendment, we will section 3 of Executive Order 12988 and Record No. MD–585–06). The forward these concerns to the State for has determined that this rule meets the individual objected to Maryland consideration. applicable standards of subsections (a) revising COMAR 26.20.25.02 by and (b) of that section. However, these deleting the requirement for topsoil Environmental Protection Agency (EPA) standards are not applicable to the testing. As discussed in the finding Concurrence and Comments actual language of State regulatory above, there is no Federal counterpart to Under 30 CFR 732.17(h)(11)(i), we programs and program amendments this deleted provision. OSM cannot requested comments on the amendment because each program is drafted and require a State to adopt or maintain from EPA (Administrative Record No. promulgated by a specific State, not by regulatory requirements that are more MD–585–01). OSM. Under sections 503 and 505 of stringent than the Federal regulations. Under 30 CFR 732.17(h)(11)(ii), we SMCRA (30 U.S.C. 1253 and 1255) and However, as revised, the Maryland are required to obtain written the Federal regulations at 30 CFR provision is identical to the Federal concurrence from EPA for those 730.11, 732.15, and 732.17(h)(10), regulations at 30 CFR 816.22(d)(4), and provisions of the program amendment decisions on proposed State regulatory is therefore approved. that relate to air or water quality programs and program amendments Federal Agency Comments standards issued under the Clean Water submitted by the States must be based Act (33 U.S.C. 1251 et seq.) or the Clean solely on a determination of whether the Under 30 CFR 732.17(h)(11)(i) and Air Act (42 U.S.C. 7401 et seq.). This submittal is consistent with SMCRA and section 503(b) of SMCRA, we requested amendment does not contain provisions its implementing Federal regulations comments on the amendment from that relate to air or water quality and whether the other requirements of various Federal agencies with an actual standards and, therefore, concurrence 30 CFR parts 730, 731, and 732 have or potential interest in the Maryland by the EPA is not required. EPA, Region been met. program (Administrative Record No. MD–585–01). We received comments III, submitted a letter dated November 6, Executive Order 13132—Federalism from the NRCS, which expressed 2003, in which it indicated that there concerns about the proposed deletion of are no apparent inconsistencies between This rule does not have Federalism soil testing being performed by a the amendment and the Clean Water Act implications. SMCRA delineates the qualified laboratory. As discussed in the or other statutes under the EPA’s roles of the Federal and State finding above, there is no Federal jurisdiction. (Administrative Record No. governments with regard to the counterpart to this deleted provision. MD–585–04). regulation of surface coal mining and reclamation operations. One of the OSM cannot require a State to adopt or V. OSM’s Decision maintain regulatory requirements that purposes of SMCRA is to ‘‘establish a are more stringent than the Federal Based on the above findings, we are nationwide program to protect society regulations. However, as revised, the approving the amendment that and the environment from the adverse Maryland provision is identical to the Maryland forwarded to us on September effects of surface coal mining Federal regulations at 30 CFR 16, 2003. operations.’’ Section 503(a)(1) of 816.22(d)(4), and is therefore approved. To implement this decision, we are SMCRA requires that State laws NRCS also stated that, with respect to amending the Federal regulations at 30 regulating surface coal mining and determinations of no material damage to CFR part 920, which codify decisions reclamation operations be ‘‘in the hydrologic balance outside the concerning the Maryland program. We accordance with’’ the requirements of proposed permit area, it had concerns find that good cause exists under 5 SMCRA, and section 503(a)(7) requires that changes were needed in the U.S.C. 553(d)(3) to make this final rule that State programs contain rules and application of Hydrologic Soil Groups effective immediately. Section 503(a) of regulations ‘‘consistent with’’ and development of runoff curve SMCRA requires that Maryland’s regulations issued by the Secretary numbers to more accurately reflect program demonstrate that it has the pursuant to SMCRA. capability of carrying out the provisions hydrologic impacts outside the permit Executive Order 13175—Consultation area. NRCS stated that these concerns of the Act and meeting its purposes. Making this regulation effective and Coordination With Indian Tribal were based on experiences from flood Governments events over the last several years, immediately will expedite that process. coupled with results from recent studies SMCRA requires consistency of In accordance with Executive Order by the Appalachian Environmental Lab Maryland and Federal standards. 13175, we have evaluated the potential in Frostburg, Maryland. In this vein, VI. Procedural Determinations effects of this rule on Federally- NRCS offered to provide ‘‘on-site’’ recognized Indian tribes and have hydrologic soil group assessments for Executive Order 12630—Takings determined that the rule does not have permit areas, until updated surveys are This rule does not have takings substantial direct effects on one or more completed for Allegany and Garrett implications. This determination is Indian tribes, on the relationship Counties in Maryland, to assist the State based on the analysis performed for the between the Federal Government and in making an assessment of the probable counterpart Federal regulation. Indian tribes, or on the distribution of cumulative impacts to prevent material power and responsibilities between the damage to the hydrologic balance Executive Order 12866—Regulatory Federal Government and Indian Tribes. outside the permit area. In response, Planning and Review The basis for this determination is that and as noted above, we have found the This rule is exempted from review by our decision is on a State regulatory State’s regulation that requires a written the Office of Management and Budget program and does not involve a Federal finding with respect to material damage under Executive Order 12866. program involving Indian Tribes.
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Executive Order 13211—Regulations substantial number of small entities Unfunded Mandates That Significantly Affect the Supply, under the Regulatory Flexibility Act (5 Distribution, or Use of Energy U.S.C. 601 et seq.). The State submittal, This rule will not impose an which is the subject of this rule, is based unfunded mandate on State, local, or On May 18, 2001, the President issued tribal governments or the private sector Executive Order 13211 which requires upon counterpart Federal regulations for which an economic analysis was of $100 million or more in any given agencies to prepare a Statement of year. This determination is based upon Energy Effects for a rule that is (1) prepared and certification made that such regulations would not have a the fact that the State submittal, which considered significant under Executive is the subject of this rule, is based upon Order 12866, and (2) likely to have a significant economic effect upon a counterpart Federal regulations for significant adverse effect on the supply, substantial number of small entities. In which an analysis was prepared and a distribution, or use of energy. Because making the determination as to whether determination made that the Federal this rule is exempt from review under this rule would have a significant regulation did not impose an unfunded Executive Order 12866 and is not economic impact, the Department relied mandate. expected to have a significant adverse upon the data and assumptions for the effect on the supply, distribution, or use counterpart Federal regulations. List of Subjects in 30 CFR Part 920 of energy, a Statement of Energy Effects Small Business Regulatory Enforcement is not required. Fairness Act Intergovernmental relations, Surface mining, Underground mining. National Environmental Policy Act This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Dated: February 11, 2004. This rule does not require an Brent Wahlquist, environmental impact statement Regulatory Enforcement Fairness Act. This rule: (a) Does not have an annual Regional Director, Appalachian Regional because section 702(d) of SMCRA (30 Coordinating Center. U.S.C. 1292(d)) provides that agency effect on the economy of $100 million; decisions on proposed State regulatory (b) Will not cause a major increase in ■ For the reasons set out in the preamble, program provisions do not constitute costs or prices for consumers, 30 CFR part 920 is amended as set forth major Federal actions within the individual industries, Federal, State, or below: meaning of section 102(2)(C) of the local government agencies, or National Environmental Policy Act (42 geographic regions; and (c) Does not PART 920—Maryland U.S.C. 4332(2)(C)). have significant adverse effects on competition, employment, investment, ■ 1. The authority citation for part 920 Paperwork Reduction Act productivity, innovation, or the ability continues to read as follows: This rule does not contain of U.S.-based enterprises to compete Authority: 30 U.S.C. 1201 et seq. information collection requirements that with foreign-based enterprises. This require approval by OMB under the determination is based upon the fact ■ 2. Section 920.15 is amended in the Paperwork Reduction Act (44 U.S.C. that the State submittal that is the table by adding a new entry in 3507 et seq.). subject of this rule is based upon chronological order by ‘‘Date of Final counterpart Federal regulations for Publication’’ to read as follows: Regulatory Flexibility Act which an analysis was prepared and a The Department of the Interior determination made that the Federal § 920.15 Approval of Maryland regulatory certifies that this rule will not have a regulation was not considered a major program amendments. significant economic impact on a rule. * * * * *
Original amendment submission date Date of final publication Citation/description
******* September 16, 2003 ...... March 11, 2004 ...... COMAR 26.20.03.07.A, B; 26.20.03.11; 26.20.05.01, A, B, C, and L; and 26.20.25.02.D.
[FR Doc. 04–5499 Filed 3–10–04; 8:45 am] SUMMARY: The Copyright Office of the FOR FURTHER INFORMATION CONTACT: BILLING CODE 4310–05–P Library of Congress is announcing David O. Carson, General Counsel, or interim regulations specifying notice William J. Roberts, Jr., Senior Attorney, and recordkeeping requirements for use Copyright Arbitration Royalty Panel, LIBRARY OF CONGRESS of sound recordings under two statutory P.O. Box 70977, Southwest Station, licenses under the Copyright Act. Washington, DC 20024–0977. Copyright Office Electronic data format and delivery Telephone: (202) 707–8380. Telefax: requirements for records of use as well (202) 252–3423. 37 CFR Parts 201 and 270 as regulations governing prior records of SUPPLEMENTARY INFORMATION: [Docket No. RM 2002–1E] use shall be announced in future I. Overview Federal Register documents. Notice and Recordkeeping for Use of Digital audio services provide Sound Recordings Under Statutory EFFECTIVE DATE: The interim notice and copyrighted sound recordings of music License recordkeeping regulations shall be for the listening enjoyment of the users effective beginning April 12, 2004. AGENCY: of those services. In order to provide Copyright Office, Library of Updated notices of intent to use the Congress. these sound recordings, however, a statutory licenses under sections 112 digital audio service must license the ACTION: Interim regulations. and 114 are due July 1, 2004. copyrights to each musical work, as well
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as the sound recording of the musical use of the section 112 and/or 114 as the section 112 statutory license for work.1 With respect to the copyright in license (the ‘‘notice’’ provisions). See 17 ephemeral recordings. 67 FR at 5762. the sound recording, the digital audio U.S.C. 112(e)(4) and 114(f)(4)(A). With respect to the notice provisions service may seek to obtain a licensing Today’s interim regulations are the first proposed in the NPRM, copyright agreement directly with the copyright step in complying with these owners and users voiced little owner, or, if it is an eligible service,2 requirements. disagreement. The details of the notice may choose to license the sound As discussed more fully infra, today’s requirements being adopted by the recording through statutory licenses set interim regulations set forth the Library are discussed below. With forth in the Copyright Act, title 17 of the requirements for an eligible digital respect to what records of use of sound United States Code. There are two such audio service to file notification that it recordings should be kept, how they licenses that enable an eligible digital is using one or both of the statutory should be kept and in what manner they audio service to transmit performances licenses, as well as the types and details should be delivered to copyright of copyrighted sound recordings to its of information that an eligible digital owners, there was virtually no listeners: section 114 and section 112 of audio service must maintain in creating agreement between copyright owners the Copyright Act. Section 114 permits a record of use for each copyrighted and users. On May 10, 2002, the Office an eligible digital audio service to sound recording it provides its listeners. held a public meeting to facilitate perform copyrighted sound recordings There are two remaining issues. First, discussion as to the required records of publicly by means of digital audio today’s interim regulations only apply use, the frequency of the recordkeeping, transmissions to its listeners, provided to the use of sound recordings from the and the manner and format for delivery that the terms and conditions set forth effective date of the interim regulations to copyright owners. Persons in section 114 are met including the and prospectively. There remains the representing copyright owners, users, payment of a royalty fee. Section 112 issue of what types of information must and performers appeared and offered permits an eligible digital audio service be reported for uses of sound recordings their opinions and criticisms of the to make the digital copies of a sound prior to the effective date of this NPRM and offered suggestions as to the recording that are necessary to transmit regulation and back to October 28, 1998. amount of information necessary to a performance of a sound recording to Second, there remains the issue of the distribute royalties collected under the listeners,3 provided again that the terms character of the format in which records section 112 and 114 licenses. The May and conditions set forth in section 112 of use must be maintained, and what are 10 meeting revealed persistent are met including the payment of a the acceptable means of delivering the differences as to the scope of the regulations, as well as the details for royalty fee. information contained in records of use creating and delivering databases of The royalty fees collected under the to copyright owners of sound two statutory licenses are paid to a records of use. recordings. Subsequent to the May 10 meeting, central source known as a Receiving the Office posted a notice on its website Agent.4 See 37 CFR 261.2. II. Background announcing the impending release of Before the Receiving Agent, or any other On February 7, 2002, the Copyright these interim regulations and describing agent designated to receive royalties Office of the Library of Congress issued in general the categories of information from the Receiving Agent, can make a a Notice of Proposed Rulemaking that will be required to be reported for royalty payment to an individual (‘‘NPRM’’) on the requirements for performances of sound recordings copyright owner, they must know how giving copyright owners reasonable governed by the section 112 and 114 many times the eligible digital audio notice of the use of their sound licenses. These transitional service made use of the sound recording recordings under the section 114 and requirements were memorialized in a and how many listeners received it. To 112 statutory licenses and for how September 23, 2002, Federal Register obtain this information, both section records of such use shall be kept and document. See 67 FR 59573 (September 112 and section 114 direct the Librarian made available to copyright owners. 67 23, 2002). of Congress to prescribe regulations that FR 5761 (February 7, 2002). The The need for announcing these identify the use of copyrighted sound proposed regulations set forth in the transitional requirements was made recordings (the ‘‘recordkeeping’’ NPRM were taken, with some evident during the course of discussions provisions), as well as provide copyright modifications, from the notice and at the May 10 roundtable meeting. owners with notice that a particular recordkeeping regulations the Office Although services making use of the eligible digital audio service is making had previously adopted for eligible statutory licenses in section 114 (other preexisting subscription services than the preexisting subscription service 1 Recorded music typically involves two separate making use of the section 114(f)(1)(A) license) and section 112 have been copyrights. There is a copyright for the song itself— the music and the lyrics, if any—and there is a statutory license. See 63 FR 34289 (June doing so since the passage of the Digital 5 separate copyright for the sound recording of that 24, 1998); 37 CFR 201.35–201.37. The Millennium Copyright Act in 1998, it music. The copyright to the musical work often Office stated that although the existing became clear that many have not kept belongs to the songwriter and/or his or her music regulations only applied to preexisting any records of the sound recordings publisher, and the copyright to the sound recording is generally owned by a record company that subscription services, it was the desire which they have performed or the released the recording. of the Office to adopt a single set of ephemeral copies they have made. This 2 These services are defined as preexisting notice and recordkeeping regulations is unacceptable. The law requires a subscription services, preexisting satellite digital that would apply to any service reporting of use of sound recordings audio radio services, business establishment claiming use of any of the statutory services, nonsubscription services and new sufficient to permit payment of subscription services. These services are further licenses set forth in section 114, as well royalties, and each day that passes discussed, infra. results in the loss of records of 3 These copies are referred to as ‘‘ephemeral 5 These interim regulations place all notice and performances that may never be copies,’’ although they sometimes exist for a period recordkeeping regulations pertaining to the accurately identified and reported. of time that is far from the ordinary meaning of statutory licenses under sections 112 and 114 into ‘‘ephemeral.’’ a new part 270. Accordingly, the notice and Furthermore, eligible nonsubscription 4 Currently, the Receiving Agent is recordkeeping regulations currently located in digital transmission services have been SoundExchange, Inc. See 37 CFR 261.4(c). §§ 201.35–201.37 have been moved to part 270. required to make royalty payments
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under the section 112 and 114 licenses IV. Format Requirements published on December 24, 2002, while for eligible nonsubscription digital Due to the highly technical nature of not bound by the records of use transmission services since October 20, delivery of data in an electronic format provisions of these interim regulations, 2002, meaning that a considerable and the widespread disagreement are bound by the interim notice amount of royalties (over five years’ among SoundExchange and the users of regulations adopted herein. worth) should now be ready for the statutory licenses over formatting, On June 11, 2003, the Office distribution. Royalties cannot be the Copyright Office is unable to adopt published the agreement for allocated to owners, artists and data format and delivery regulations at noncommercial webcasters. 68 FR performers until meaningful this time. However, we will be 35008 (June 11, 2003). That agreement information regarding the instances of publishing soon a Notice of Proposed provides that for 2003 and 2004, performances of specific sound Rulemaking in the Federal Register noncommercial webcasters are not recordings of musical works is provided proposing electronic data format and required to provide any reports of use of by the services making use of the works. delivery rules and will be seeking sound recordings ‘‘even if the Librarian Publication of these interim public comment. In the meantime, we of Congress issues regulations otherwise 6 regulations will preserve the strongly urge SoundExchange and requiring such reports by identification and reporting of as many services that will be making reports of Noncommercial Webcasters.’’ Id. at performances under the section 112 and use to negotiate acceptable means of 35011. Consequently, those entities that 7 114 licenses as possible. data formatting and delivery. The are signatories to the agreement III. Prior Records of Use negotiation process is better suited to published on June 11 are not bound by targeting and resolving technical the records of use regulations The interim regulations announced difficulties than an agency rulemaking announced in this notice for the years today apply on a prospective basis, process. Also, the more agreements that 2003–2004. These entities are still meaning that they apply to uses of are reached, the greater the body of bound, however, by the notice sound recordings under the section 112 industry experience and practice that provisions adopted today. and 114 licenses occurring on and after the Office can draw from in shaping the effective date announced above. VI. Parties Affected final regulations. There remains, however, the question of The Copyright Office announced in what records of use must be reported for V. The Small Webcaster Settlement Act the NPRM that it intended to adopt a uses of sound recordings from October of 2002 single set of notice and recordkeeping 28, 1998, until the present. It was On December 4, 2002, the President regulations for all four categories of apparent from the discussions of the signed into law the Small Webcaster services: Preexisting subscription May 10, 2002, roundtable and Settlement Act of 2002, Public Law services, preexisting satellite digital subsequent filings that many services 107–321, 116 Stat. 2780, which audio radio services, nonsubscription have maintained few or, in many permitted SoundExchange to enter into services, and new subscription services. instances, no records of prior uses. agreements on behalf of all copyright 67 FR 5761, 5762 (February 7, 2002). Incomplete and nonexistent records owners and performers to set rates, The Office has been requested, however, create serious difficulties for the terms, and conditions for to exclude preexisting subscription fashioning of regulations that apply to noncommercial and small commercial services and preexisting satellite digital prior uses of sound recordings. The webcasters operating under the section audio radio services from this Copyright Office has sought comment 112 and 114 statutory licenses. The Act proceeding. on the matter of prior records, see 68 FR directs the Copyright Office to publish With respect to preexisting 58054 (October 8, 2003), and will such agreements in the Federal Register subscription services, the Recording publish regulations in the future. In the and specifies that they may not be taken Industry Association of America meantime, both copyright owners of into account by the Office in (‘‘RIAA’’) recommended in its petition sound recordings and users of the formulating notice and recordkeeping that opened this rulemaking that section 112 and 114 licenses are provisions under the statutory licenses. preexisting subscription services be strongly encouraged to resolve the On December 24, 2002, the Copyright allowed to continue to operate under matter in a way that will permit Office published the agreement for the rules set forth in former 37 CFR SoundExchange to distribute royalties small commercial webcasters. 67 FR for uses of sound recordings that took 201.36. RIAA petition at 1–2. Support 78510 (December 24, 2002). That place prior to the effective date of these for the proposal was echoed by the agreement specifies the types of data regulations. The Office would be preexisting subscription services. that must be reported by small pleased to consider any negotiated Comments of Music Choice at 6 commercial webcasters for the years resolution as it determines the terms of (submitted April 5, 2002); Comments of 2003 and 2004. The agreement further the regulations to govern reporting on Music Choice at 1–2 (submitted provides, however, that past uses of sound recordings. September 30, 2002). Because copyright [f]or calendar years 2003 and 2004, details of owners and preexisting subscription 6 As discussed below, these interim regulations the means by which copyright owners may services appear content to operate under make some modifications to the requirements receive notice of the use of their sound the existing recordkeeping provisions announced in the September 23, 2002, Federal recordings, and details of the requirements contained in former § 201.36 at this Register document. under which reports of use concerning the time,9 the recordkeeping interim 7 The Office has also had discussions with matters identified in Section 6(a) 8 shall be copyright owners and users regarding the format in made available, shall be as provided in which records of use should be preserved, 9 On March 14, 2003, the Copyright Office regulations issued by the Librarian of received a joint petition from copyright owners and including a public meeting on October 8, 2002. See Congress under 17 U.S.C. 114(f)(4)(A). 67 FR 59547 (September 23, 2002). These performers and preexisting subscription services to discussions further underscored the difficulty of Id. at 78512. Consequently, entities conduct an expedited rulemaking to modify the prescribing detailed electronic format and delivery provisions of former § 201.36. The sought-after requirements and have prevented including them in which are signatories to the agreement modifications, negotiated during the statutorily today’s interim regulations. These requirements prescribed negotiation period for adjustment of will be announced in a future Federal Register 8 Section 6(a) of the agreement contains the rates and terms, would supercede the existing document. details of the records of use that must be kept. Continued
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regulations announced today will not not yet developed methods for a. Service Name. The Service Name apply to preexisting subscription maintaining records of sound recording identifies the service reporting the use services. Likewise, the notice provisions use. The prudent course therefore is to of a particular sound recording. of § 270.1 (former § 201.35) announced set forth minimum requirements for b. Transmission Category. The today do not apply to preexisting records that must be maintained, as well Transmission Category identifies the subscription services. as the frequency with which they must royalty structure for sections 112 and On April 11, 2003, the Office received be kept. It is highly likely that 114 that a service uses to calculate its a petition from SoundExchange, XM additional requirements will be set forth royalty obligation. Because there are Satellite Radio, Inc., Sirius Satellite after the Office has determined the essentially many licenses within section Radio Inc., the American Federation of effectiveness of these interim rules. 112 and section 114 (e.g., a section 114 Radio and Television Artists, and the VIII. The Proposals of the Commenters license for preexisting subscription American Federation of Musicians services with one royalty rate, a section stating that these entities had reached A. Proposal of the Recording Industry 114 license for nonsubscription services an agreement regarding notice and Association of America with different royalty rates), the recordkeeping requirements for the Transmission Category is necessary to The Recording Industry Association period through December 31, 2006, and determine the royalty fee that is being of America (‘‘RIAA’’) 10 recommended requesting that the Office defer adopting paid for the particular use of a sound that the Copyright Office require that notice and recordkeeping regulations for recording. RIAA offers ten category services report to SoundExchange a preexisting satellite digital audio radio codes that identify each type of service comprehensive amount of data which it services at this time. The Office using the section 112 and 114 licenses. asserted was necessary for proper responded by letter dated May 8, 2003, Id. at 48–49. denying the petition because ‘‘it is the distribution of royalties under the section 112 and 114 statutory licenses. c. Channel or Program Name. RIAA Library’s responsibility, and the asserts that the Channel or Program Library’s responsibility alone, to These requirements were set forth in the NPRM and are discussed there. See 67 Name is necessary to verify compliance promulgate rules establishing notice and with the sound recording performance record-keeping requirements.’’ FR 5761 (February 7, 2002). Subsequent to the NPRM, and due at least in part complement set forth in 17 U.S.C. Copyright Office letter at 1 (May 8, 114(j)(13). Id. at 49. SoundExchange 2003). We concluded that it is ‘‘our duty to concerns expressed by users of the statutory licenses regarding the privacy also requests identification of the to include provisions governing Channel or Program Name, but for preexisting satellite digital audio radio of user information in a listener log, RIAA revised its proposal and dropped purposes of royalty distribution. services in the section 114 and section SoundExchange acknowledges that 112 notice and recordkeeping its request that the requirements include a separate play list and listener log. certain services lack the capacity to regulations that we are preparing for identify the number of performances publication.’’ Id. at 2. Although the Comments of RIAA at 33 (submitted April 5, 2002). RIAA submits that all the (i.e., the number of listeners) of a parties to the agreement relating to particular sound recording and preexisting satellite digital audio radio data elements it has requested for records of use are essential to the recommends that those services report services could have requested that the the number of Aggregate Tuning Hours Office adopt the notice and accurate and prompt identification of the ownership of each sound recording (‘‘ATH’’) to a particular channel. recordkeeping requirements they had However, in order for ATH to provide negotiated, they did not do so. Indeed, performed and to the efficient distribution of royalties. The more data SoundExchange with meaningful the Office has no knowledge of the distribution data, the service must details of those negotiated requirements. that services using the statutory licenses submit, the more ‘‘pieces to the puzzle’’ report the Channel or Program Name to Consequently, the interim regulations avoid under-valuing or over-valuing announced today apply to preexisting there are for a correct royalty distribution. Id. at 39. specific sound recordings. For example, satellite digital audio radio services, as if a service has two channels of well as nonsubscription services, RIAA’s proposed records of use are programming that perform two different business establishment services and divided into three principal parts: (1) genres of music (one that has many new subscription services. Presumably, Information identifying the licensee as listeners and one that does not), yet however, no copyright owner who is a well as the type of service and reports the same ATH for the two party to the negotiated agreement would programming offered by the licensee; (2) channels, the sound recordings on both be in a position to complain of the information regarding the digital audio channels will be valued equally even failure, by a service that is also a party transmissions of sound recordings; and though the one channel received more to the agreement, to comply with the (3) information regarding the specific listenership. However, if separate ATH regulations announced today. sound recordings transmitted to the are reported for each channel, the higher public. VII. Scope of the Reporting ATH for the more popular channel will Requirements 1. Data Identifying Service, Type of be reflected and the sound recordings Service and Programming Offered. on that channel will receive a more In announcing today’s required RIAA proposes adoption of six different accurate royalty distribution. Comments records of use on a prospective basis, it data fields for this category: (1) Service of SoundExchange at 17 n.6 (submitted must be emphasized that they represent Name; (2) Transmission Category; (3) September 30, 2002); Letter from the minimum requirements. The Office Channel or Program Name; (4) Type of SoundExchange to Copyright Office recognizes that adopting detailed, Program; (5) Influence Indicator; and (6) explaining footnote 6 (submitted comprehensive reporting requirements Genre. October 28, 2002). at this time could place a considerable RIAA asserts that the Channel Name burden on those services which have 10 RIAA’s comments also include the views of for an AM or FM radio station should SoundExchange which, at the time of submission of recordkeeping provisions in former § 201.36. The the initial comments, was an unincorporated be the Federal Communications petition will be addressed in a separate Federal division of RIAA. Comments of RIAA at 1 Commission (‘‘FCC’’) facility Register document. (submitted April 5, 2002). identification number of the broadcast
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station that is transmitted and the ‘‘decide to weight performances based e. Track Label (P) Line. The Track frequency band designation (ex. upon the time of day that the Label (P) Line is the copyright owner WABC–AM). The Channel Name for all transmission is made, with information for an individual sound other transmissions should be the performances during the day being recording. According to RIAA, a Track service’s name for such channel (ex. weighted more heavily than overnight Label (P) Line can be found on the ‘‘American Top 40,’’ ‘‘80’s Rock’’) performances.’’ Id. at 52. backside of the label packaging after the ‘‘provided that if a program is generated b. Total Number of Performances. (P) Line symbol. If the album is a as a random list of sound recordings RIAA asserts that Total Number of compilation, the Track Label (P) Line from a predetermined list, the channel Performances is critical to distributing information can be found inside the or program must be a unique identifier royalties collected under the section 114 label package insert following the listing differentiating each user’s randomized license. Since the royalties paid by of each sound recording. Id. at 57. The playlist from all other users’ services under the license are on a per copyright owner listed in the Track randomized playlists.’’ Comments of performance basis, see 67 FR 45240, Label (P) Line is generally the entity RIAA at 49–50 (submitted April 5, 2002) 45272 (July 8, 2002), the services entitled to royalties for the public quoting the NPRM, 67 FR at 5766. already have this information; and it is performance of the sound recording, but d. Type of Program. Identification of essential to the distribution mechanism is not the complete information the Program Type ‘‘is needed to ensure mandated by the Librarian for non- necessary to distribute royalties under compliance with certain statutory SoundExchange members. See 37 CFR the section 112 and 114 licenses. Id.; provisions that establish duration 261.4. Reply comments of RIAA at 63–64. requirements for particular 3. Data for Identifying Each Sound f. Duration of Sound Recording. programming.’’ Id. at 50. RIAA proposes Recording. RIAA proposes ten Duration of the Sound Recording is the four categories for Type of Program: categories of information for the total recorded time of that sound archived programs, looped programs, identification of each sound recording: recording as identified on the label prescheduled programs and a category (1) Artist Name; (2) Sound Recording packaging for that version of the musical for all other programs. Id. Title; (3) Album Title; (4) International work, regardless of the time that it takes e. Influence Indicator. RIAA asserts Standard Recording Code (‘‘ISRC’’); (5) the service to transmit the sound that: Track Label (P) Line; (6) Duration of recording. RIAA asserts that this Sound Recording; (7) Marketing Label; information is necessary to help The Influence Indicator field is needed distinguish among remixes of the same because certain services provide the user (8) Catalog Number; (9) Universal sound recording by the same artist. with an ability to skip forward through a play Product Code; and (10) Release Year. Comments of RIAA at 57–58 (submitted list at the user’s sole discretion. Although a. Artist Name and b. Sound RIAA believes that the use of a ‘‘skip’’ feature April 5, 2002). Recording Title g. Marketing Label. The Marketing may render certain services interactive and, RIAA asserts that these two elements therefore, ineligible for the statutory license, Label is the name of the company that a limited skip feature may eventually be are the most basic information necessary markets the album on which a particular determined to be eligible for the statutory to identify a sound recording and must sound recording may be found. RIAA license. If such services are determined to be be reported in all instances. Comments states that often, but not always, the eligible for the statutory license subject to of RIAA at 55 (submitted April 5, 2002). company name on the Track Label (P) certain conditions, then copyright owners c. Album Title. RIAA asserts that Line will be the same as the Marketing will need to know which services offer a skip Album Title is necessary to assist in Label; hence both data fields must be feature and whether those required differentiating a song by a particular conditions are satisfied. provided. Id. at 58. artist that appears on more than one h. Catalog Number. The Catalog Id. at 51. RIAA proposes two categories record album where the copyright Number is the unique number assigned for the Influence Indicator: non-user owners of the album are different. For by a particular record label to an album, influenced and user influenced. example, the Alice Cooper sound as opposed to the particular sound f. Genre. The Genre field provides recording ‘‘I’m 18’’ appears on both the recording on the album, for purposes of assistance in distinguishing among ‘‘Classicks’’ and ‘‘Love it to Death’’ ordering and inventory management. sound recording copyright owners with record albums. Epic Records is the RIAA asserts that services should the same name that own different owner of the ‘‘Classicks’’ album, while provide this information because it is repertoire. The Genre field would apply Warner Bros. is the owner of the ‘‘Love required in the Copyright Office to the designation that a service gives to it to Death’’ album. If the Designated regulations for preexisting subscription a particular channel (ex. Rock, Classical) Agents distributing royalties do not services. See 63 FR 34289, 34297 (June not to a particular sound recording. Id. know from which album the service 24, 1998). at 51–52. performed ‘‘I’m 18,’’ they cannot i. Universal Product Code (‘‘UPC’’). 2. Data Regarding the Transmissions properly distribute royalties. Reply The Universal Product Code (‘‘UPC’’) is of Sound Recordings. RIAA proposes comments of RIAA at 57–58 (submitted a 12-digit numeric identification code two categories of information regarding April 26, 2002). that is placed on products intended for the transmissions of sound recordings: d. International Standard Recording retail sale and is read by automated (1) Start Date and Time of the Sound Code (‘‘ISRC’’). The International scanning devices (i.e. the ‘‘bar code’’ Recording’s Transmission; and (2) Total Standard Recording Code (‘‘ISRC’’) is a number). Unlike an ISRC, which is Number of Performances. unique code that is embedded in many unique to a sound recording, a UPC is a. Start Date and Time of the Sound sound recordings released in recent unique to a particular product (i.e. CD, Recording’s Transmission. RIAA asserts years and is capable of being read with cassette, LP). RIAA asserts that the UPC that this information is necessary to the proper computer software. Because is necessary to assist in correctly assure that services are complying with ISRC is unique to each sound recording identifying the origin of a sound the sound recording performance that possesses it, it is extremely useful recording. Comments of RIAA at 58–59 complement. It also asserts that the in specifically identifying a particular (submitted April 5, 2002). information is necessary because sound recording. Comments of RIAA at j. Release Year. The Release Year is members of SoundExchange may 56–57. the year the album was first released
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commercially for public distribution as SoundExchange have the burden of artist; (4) call sign of the station or identified on the backside of the label proving why each element of requested channel; and (5) date of transmission. packaging after the (P) Line symbol. data is necessary for the collection and Comments of Radio Broadcasters at 41 Again, RIAA asserts that Release Year is distribution of royalties, a burden which (submitted April 5, 2002). They contend necessary to correctly identify the origin they assert that RIAA and that while this information may not of a sound recording. Id. at 59. SoundExchange have failed to meet. enable SoundExchange to identify every Comments of Radio Broadcasters at 2 entity entitled to a distribution royalty B. Proposal of the American Federation (submitted April 5, 2002). They also every time, such perfection is not of Musicians and the American submit that the Copyright Office should required because the law requires only Federation of Televison and Radio only require information necessary to ‘‘reasonable’’ notification of use. Id. Artists identify a sound recording for purposes Radio Broadcasters, as well as other The American Federation of of royalty distribution and should not services, contend that they cannot Musicians (‘‘AFM’’) and the American require information that enables RIAA supply the additional fields of data Federation of Television and Radio to monitor the sound recording requested by RIAA because, in many Artists (‘‘AFTRA’’) endorse the proposal complement requirements of section instances, they are not supplied with of RIAA for records of use data 114. Id. at 17–21. Smaller broadcasters the information from the record label. because those rules appear to require records charge that RIAA and SoundExchange This is particularly the case with new of use that are adequate to fulfill the are seeking data that they know smaller releases where the service receives a important Congressional objective of broadcasters cannot possibly supply. promotional sound recording which has compensating each featured recording artist Comments of Collegiate Broadcasters at yet to be placed on an album, receive an for use of his or her unique sound recordings, 2–3 (submitted April 5, 2002); ISRC, UPC, catalog number, Track Label and * * * will further assist in fulfilling the Comments of National Federation of (P) Line, etc. Even if this information is equally important Congressional purpose of Community Broadcasters at 3 received at a later date or can be later also compensating non-featured recording (submitted April 5, 2002); Comments of determined, it is unreasonably artists who have performed on sound recordings used by the services. Harvard Radio Broadcasting Company at burdensome to require services to seek 8 (submitted April 5, 2002). it out and report it. Comments of Radio Joint comments of AFM/AFTRA at 2 Indeed, smaller broadcasters—in Broadcasters at 44–54 (submitted April (submitted April 5, 2002). However, particular noncommercial 5, 2002); Comments of beethoven.com at AFM/AFTRA urge that the Copyright broadcasters—request that the Copyright passim (submitted April 5, 2002). Office require an additional data field Office exempt them from any record of Radio Broadcasters also indicate that that requires services to enter the names use reporting requirements. Comments there are special reporting difficulties of all non-featured singers and of College Broadcasters at 1–2 associated with musical programming musicians on each sound recording (submitted April 5, 2002); Comments of obtained from third-party syndicators. when the services are in possession of Collegiate Broadcasters at 3–4 These syndicators provide little if any that information. They assert that this (submitted April 5, 2002); Comments of information regarding the sound information is essential to distribute the Harvard Radio Broadcasting Company at recordings that they perform. Requiring modest amount of royalties allocated to 2 (submitted April 5, 2002); Comments the broadcaster of this programming to non-featured singers and musicians of Intercollegiate Broadcasting System at track down the information would be under the section 114 license. If the 1 (submitted April 5, 2002); Comments unduly burdensome. Comments of burden to obtain this information is of Mayflower Hill Broadcasting Radio Broadcasters at 31–33 (submitted placed upon the administrator of these Company at 2 (submitted April 5, 2002); April 5, 2002). A similar problem also royalties, the costs associated with Comments of National Federation of exists for programming which is obtaining it will exceed the royalties. Id. Community Broadcasters at 3 broadcast live or in a ‘‘free flow’’ at 16–20. (submitted April 5, 2002); Comments of fashion. Comments of Harvard Radio WOBC at 2 (submitted April 5, 2002); Broadcasting Company at 7 (submitted C. The Services’ Proposals Comments of Adventist Radio April 5, 2002). Not surprisingly, the services using Broadcasters Association at 4 (submitted 2. Proposals of Non-broadcaster the section 112 and 114 statutory April 5, 2002). These commenters note Services. Non-broadcaster services (i.e., licenses vehemently object to the that they possess neither the manpower webcasters) are generally prepared to amount and character of information nor the financial resources to assemble provide more data than broadcasters sought by RIAA and SoundExchange. and enter the data requested by RIAA. although certainly well short of RIAA’s Some assert that much of the Many of these stations depend upon requests. For example, David Landis, information sought is not generally volunteer help that cannot be required founder of Ultimate 80’s, states that he available and that the cost of providing to undertake the task of preparing such has ‘‘spoken with many of my fellow it will drive certain services out of detailed reports of use. Their general webcasters’’ and can provide the business. There is no unanimity among recommendation is that radio stations following data: (1) The name of the the services as to what information can with ten or fewer paid employees be service; (2) the channel of the program; be provided, although they certainly all fully exempted from reporting records (3) the type of the program (archived, prefer to provide less rather than more. of use. See, e.g. Comments of National looped or live); (4) the date of the 1. Proposals of Broadcasters. Federation of Community Broadcasters transmission; (5) the time of the Bonneville International Corporation, at 5 (submitted April 5, 2002); Reply transmission; (6) the time zone of the Clear Channel Communications, Cox Comments of Radio Broadcasters at 35 origination of the transmission; (7) the Radio, Inc., National Association of (submitted April 26, 2002); Comments duration of the transmission (to the Broadcasters, Susquehanna Radio of College Broadcasters at 22 (submitted nearest second); (8) the sound recording Corporation, National Religious April 5, 2002). title; (9) the featured recording artist; Broadcasters Music License Committee Radio Broadcasters submit that only and (10) the musical genre of the and Salem Communications five data fields should be required for channel or program (i.e. the station Corporation (collectively ‘‘Radio records of use: (1) Name of the service; format). Comments of Ultimate 80’s at 4 Broadcasters’’) argue that RIAA and (2) sound recording title; (3) name of (submitted April 5, 2002).
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Beethoven.com proposes the same example, DiMA asserts that any one of for exempting certain services from any requirements, with the exception of the following groups of information is, reporting information. As discussed providing data on the duration of the by itself, sufficient to identify a sound above, certain services—in particular transmission of a sound recording. recording: noncommercial broadcasters—seek a Comments of Beethoven.com at 5 (1) Sound recording title, featured complete exemption from reporting any (submitted April 5, 2002). recording artist, group, or orchestra, data. Others are willing to report data Websound, Inc. recommends an even the retail album title, and the Track for the sound recordings they perform more extensive list of requirements. It Label (P) Line; themselves, but seek an exemption for states that it can supply: (1) The name (2) Sound recording title, UPC and the sound recordings they receive from of the service; (2) the channel or Track Label (P) Line; third-party syndicators. We find no program, or in the case of transmission (3) ISRC and the Track Label (P) Line. authority in the statute to create such of an AM or FM signal, the station Comments of DiMA at 4 (submitted exemptions, nor do we find such identifier including the band April 5, 2002). exemptions as constituting ‘‘reasonable designation and the FCC facility Like Radio Broadcasters, DiMA argues notice’’ of the performance of sound identification number; (3) the type of that information sought by RIAA to recordings.12 In order to avail oneself of program (archived, looped or live); (4) monitor the sound recording the statutory licenses, one must report the date of transmission (except for complement of section 114 should be some information. The question is how archived programs); (5) the time of outside the scope of records of use extensive that information should be. transmission (except for archived requirements. Id. at 5; see, also Reply In principle, one might imagine that programs); (6) the time zone from which comments of Yahoo, Inc. at 2 (submitted recordkeeping for many webcasters the transmission originated; (7) for April 26, 2002). And with regards to could be a simple matter. Webcasting archived programs, the numeric reporting requirements for programming necessarily requires use of computers designation of the pace of the sound provided by third parties, DiMA for storage and transmission of the recording within the order of the submits that existing third-party performances of sound recordings. program; (8) the duration of the Thus, webcasters might be expected to contracts should be grandfathered from transmission (to the nearest second); (9) have the requisite resources and reporting. Id. at 7. the sound recording title; (10) the ISRC, sophistication to maintain and transmit where available; (11) the release year IX. Required Records of Use detailed reports identifying each and identified in the copyright notice on the every sound recording they transmit, as A. Consideration of the Comments album and, in the case of compilation well as the number of performances albums created for commercial Deciding which data fields should be transmitted. purposes, the release year identified in required for a record of use under the If webcasters have the sophistication the copyright notice for the individual section 114 license presents a difficult and equipment to facilitate the track; (12) the featured recording artist; challenge for the Copyright Office. recordation and reporting of (13) the album title or, in the case of There are many interests which must be information, the webcasting statutory compilation albums created for considered and balanced. On the one license could offer an opportunity to commercial purposes, the name of the hand, there must be sufficient ensure that each copyright owner of retail album identified by the service for information reported so as to accurately each sound recording performed by purchase of the sound recording; (14) identify the sound recordings webcasters will be compensated for the marketing label; (15) the UPC; (16) performed. This is necessary so that exactly his or her share of the royalties the catalog number; (17) the Track Label royalties may be paid to the proper generated by the statutory license. (P) Line; (18) the musical genre of the parties and to avoid not compensating a Because SoundExchange could, in channel or program, or in the case of the large number of performances simply theory, obtain perfect information about transmission of an AM or FM station, because there was insufficient the number of performances of each the broadcast station format. Comments information. On the other hand, the sound recording, it could divide the of Websound, Inc. at 1–2 (submitted burdens associated with reporting total royalty pool by the total number of April 5, 2002). information cannot be so high as to be performances of all sound recordings, Yahoo, Inc. submits that the unreasonable or to create a situation and then allocate to each sound Copyright Office should adopt only where many services cannot comply. recording the corresponding share based minimal reporting requirements for It has been asserted by some services on the number of times it is performed. webcasting and broadcast throughout this docket that for some However, many webcasters assert that retransmissions that would include the services any reporting of information the burden of keeping comprehensive call letters of the AM or FM station, the regarding performances will be too great format of the station or program (music a burden. While this assertion, if true, 12 One could argue that reporting the use of sound or talk), the genre of the station or recordings is not ‘‘reasonable’’ if a service cannot might result in certain services ceasing under any circumstances provide information about program and the cumulative number of operation under the statutory licenses, it the sound recordings. Even if the Office were listening hours to each station during is not a valid reason to eliminate persuaded that some services cannot report any the reporting period. Reply comments of reporting altogether. The law states that data—which we are not—the argument would be Yahoo at 4, 10 (submitted April 26, unpersuasive. Transmitting a sound recording to the Librarian of Congress must adopt the public is not something that accidentally or 2002). regulations under the section 114 unknowingly happens. It takes a significant amount The Digital Media Association license to provide copyright owners of of decision making and action to select and compile (‘‘DiMA’’) argues that much of the sound recordings with ‘‘reasonable sound recordings, and a significant amount of information sought by RIAA and technical expertise to make the transmissions. It is notice’’ of the use of their sound not unreasonable to require those engaged in such SoundExchange is redundant and recordings. 17 U.S.C. 114(f)(4)(A).11 No a sophisticated activity to collect and report a should not be required. It suggests that provision is made for not adopting limited amount of data regarding others’ property services should be able to choose the regulations in certain circumstances, or which they are using for their benefit. While data fields that they supply provided making and reporting a record of use is undoubtedly an additional cost of transmitting that the information is sufficient to 11 A similar provision exists for use of the section sound recordings to the public, it is not an identify the sound recording used. For 112 license. See 17 U.S.C. 112(e)(4). unreasonable one.
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records would drive them out of notice requirements and pays the statutory Office has had sufficient time to assess business. See, e.g., Reply Comments of royalties thereby avoids infringing the their effectiveness and consider ways in a United Group of Webcasters at 3; copyright owners’ exclusive rights. 17 U.S.C. which data reporting may be Comments of Mayflower Hill 114(d)(2), (f)(5). The Office determines, 14 therefore, that it is within its rulemaking improved. Broadcasting Corp. at 1–2; Comments of authority under section 114(f)(2) to require By applying these principles to the 18 Collegiate Broadcasters, Inc. at 2–3; reporting of complement information. See data fields requested by RIAA and the Reply Comment of Harvard Radio Cablevision Sys. Devel. Corp. v. Motion fields requested by AFM and AFTRA, Broadcasting Company at 6–7. We Picture Ass’n, 836 F.2d 599 (D.C. Cir. 1988) the Copyright Office has settled upon recognize that there will be some (Copyright Office had authority to issue the fields which must be reported by burden involved in reporting regulations interpreting statute). The Office services using the section 112 and 114 information on each sound recording believes that the presence and specificity of statutory licenses. With respect to performed, and as more information is the performance complement indicates Congress’ intent that records of use include RIAA’s requests, we are not requiring required for each sound recording, the data to test compliance. While section Start Date and Time of the Sound burden becomes greater. Although the 114(j)(7) provides that transmissions from Recording’s Transmission, Type of ultimate goal is to require multiple phonorecords exceeding the Program and Influence Indicator comprehensive reporting on each performance complement’s numerical because these data fields are for performance a webcaster makes, that limitations will nonetheless conform to the purposes of monitoring compliance goal is not achievable at this time. complement if the programming of multiple with the limitations of the section 114 Therefore, the regulations announced phonorecords was not ‘‘willfully intended’’ license. As discussed above, requiring today will not require year-round to avoid the numerical limitations, a pattern of conduct might provide evidence of the these fields would be unnecessarily reporting, but only reporting for certain requisite intent. burdensome especially in light of the periods during the year, and the fact that the two-week-per-calendar- information that webcasters must 63 FR at 34294. The reasoning for requiring quarter reporting requirement renders provide will be less comprehensive than the information collected from these copyright owners desire. performance complement data in the preexisting subscription service fields of little or no value in enforcing In selecting the data fields described the requirements of the section 114 below, the Copyright Office was guided rulemaking does not necessarily apply with the same force to these interim license. by several principles. First, we have not The Office also has not chosen to adopted any data fields proposed by regulations. While there is evidence of legislative intent for services to report require reporting of the Track Label (P) RIAA which are not for the purpose of Line, the Duration of the Sound making royalty distributions under the performance complement data, as well as other data related to compliance with Recording, the Catalog Number, the UPC section 112 and 114 licenses. RIAA has and the Release Year, the reporting of requested data for purposes of the terms of the license, such data is not useful when it is limited to only two which would be unduly burdensome at monitoring the sound recording this time. As Radio Broadcasters stated performance complement in 17 U.S.C. weeks per calendar quarter. See discussion of reporting periods, infra. in their comments, these pieces of 114(j)(13) (Start Date and Time of the information are frequently not provided Sound Recording’s Transmission),13 for Given that reporting of such limited data will not serve the purpose of to services until well after the initial monitoring requirements regarding the transmissions of the sound recordings. duration of programming 17 U.S.C. monitoring statutory compliance and given the burden upon services for While the information is discoverable at 114(d)(2)(C)(iii) (Type of Program), and a later date, researching it and revising to assist in determining whether a reporting the data, we are not requiring it at this time. The matter may be further prior records of use would involve service is interactive (Influence significant costs. Indicator). RIAA points to the Copyright addressed in the final regulations in this docket. Finally, we are not adopting the Office’s decision in the preexisting proposal of AFM and AFTRA to report subscription service rulemaking to The second principle guiding our selection of data fields is a cost/benefit data regarding nonfeatured vocalists and adopt reporting requirements designed musicians. Many sound recordings have to permit monitoring of the sound analysis. The Office has chosen to adopt interim regulations at this time to afford numerous nonfeatured musicians and recording performance complement, 63 vocalists which would require large FR 34289 (June 24, 1998), and argues services an ample period of time to adjust to the process of reporting. It is amounts of data entry into a report of that the decision must be applied in this use. Entering lists of names of docket. Reply Comments of RIAA at 15 evident from the statements made by certain services at the meetings held by performers into a report of use would be (submitted April 26, 2002). In that a prohibitively costly undertaking for rulemaking proceeding we said: the Office in this docket that in many cases up to now little or no gathering of services that would raise the likelihood The Office considered arguments of DCR of noncompliance and error rates in and other Services that the Act imposes no data has taken place. Given this notable lack of activity, imposition of extensive reporting. Furthermore, we are focused obligation to affirmatively report compliance upon identifying and reporting the use with the complement, but reaffirms its earlier and detailed reporting requirements at judgment. The Office notes that conforming this time could increase the instances of of sound recordings, not performers to the performance complement is a noncompliance by services unprepared associated with the sound recordings. condition of the statutory license, and a to report data and could substantially AFM and AFTRA’s proposal is not Service that complies with the regulatory raise the reporting error rates for consistent with the goal of this interim services that do fully comply. 13 RIAA also states that it may use data regarding 14 While the data fields required by these interim the Start Date and Time of the Sound Recording’s Consequently, the Office has chosen to regulations are the baseline requirements, there is Transmission for distribution purposes when require a minimal level of reporting at no prohibition on services reporting additional audience size is not reported. Comments of RIAA this time that will permit the data. As discussed above, webcaster services appear at 52 (submitted April 5, 2002). Reporting of the distribution of royalties (albeit capable of providing more data than broadcaster number of performances of a sound recording is services. Delivery of additional data is encouraged, discussed infra, and data regarding the Start Date imperfectly). These baseline and services wishing to do so should contact and Time of the Sound Recording’s Transmission requirements will be revisited in the SoundExchange to make arrangements for is not necessary. final regulations after the Copyright providing the additional information.
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regulation to establish merely baseline Aggregate Tuning Hours and Marketing Label. And a service reporting requirements and cannot be Channel or Program Name which has neither ISRC nor Actual Total adopted at this time. Play Frequency Performances data for a sound recording OR must report its Name, Transmission B. The Record of Use Reporting Regime Actual Total Performances Category, the Featured Artist, Sound In this section the Copyright Office Under this reporting regime, a service Recording Title, Album Title, Marketing sets forth the reporting regime for the may report as few as six items of data Label, Aggregate Tuning Hours, Channel use of sound recordings under the per sound recording or as many as eight or Program Name, and Play Frequency. section 112 and 114 statutory licenses.15 depending upon the amount of In the interest of regulatory flexibility reporting data available to each service. C. Details of the Data Fields for a Record and providing services with the A service that has ISRC data and Actual of Use Total Performances data for a sound opportunity to reduce their reporting 1. Name of Service. The Name of burden, we are prescribing a reporting recording need only report its Name, the Transmission Category, the Featured Service is a mandatory reporting regime that, in two instances, permits category. The Name of Service is the full the entry of a single amount of data in Artist, the Sound Recording Title, ISRC, and Actual Total Performances for the legal name of the service making the lieu of additional separate categories of transmissions. data identifying the sound recording sound recording.16 A service which has and its use. The reporting regime is as the ISRC but not the Actual Total 2. Transmission Category. The follows: Performances data, may report the ISRC Transmission Category is a mandatory 1. Name of Service and in addition must report its Name, reporting category. Because the various 2. Transmission Category Transmission Category, Featured Artist, statutory licenses contained in section 3. Featured Artist Sound Recording Title, Aggregate 114 have differing royalty structures, 4. Sound Recording Title Tuning Hours, Channel or Program and because many services frequently 5. Sound Recording Identification Name, and Play Frequency. Likewise, a operate under more than one license, it Album Title service which has Actual Total is necessary to identify the category Marketing Label Performances data but not ISRC may under which the performance of a OR report Actual Total Performances and sound recording is made. Services shall International Standard Recording then must report its Name, use the following category codes to Code (ISRC) Transmission Category, Featured Artist, identify each sound recording 6. Total Performances Sound Recording Title, Album Title, performed:
Category code Description
A ...... Eligible nonsubscription transmission other than broadcast simulcasts and transmissions of non-music programming. B ...... Eligible nonsubscription transmission of broadcast simulcast programming not reasonably classified as news, talk, sports or business programming. C ...... Eligible nonsubscription transmission of non-music programming reasonably classified as news, talk, sports or business programming. D ...... Eligible nonsubscription transmission by a non-Corporation for Public Broadcasting noncommercial broadcaster making transmissions covered by 37 CFR 261.3(a)(2)(i) and (ii).17 E ...... Eligible nonsubscription transmission by a non-Corporation for Public Broadcasting noncommercial broadcaster making transmissions covered by 37 CFR 261.3(a)(2)(iii).18 F ...... Eligible nonsubscription transmission by a small webcaster operating under an agreement published in the Federal Reg- ister pursuant to the Small Webcaster Settlement Act. G ...... Eligible nonsubscription transmission by a noncommercial broadcaster operating under an agreement published in the Federal Register pursuant to the Small Webcaster Settlement Act. H ...... Transmission other than broadcast simulcasts and transmissions of non-music programming made by an eligible new sub- scription service. I ...... Transmission of broadcast simulcast programming not reasonably classified as news, talk, sports or business program- ming made by an eligible new subscription service. J ...... Transmission of non-music programming reasonably classified as news, talk, sports or business programming made by an eligible new subscription service. K ...... Eligible transmission by a business establishment service making ephemeral recordings.
3. Featured Artist. The Featured Artist it transmits during the relevant and the featured artist are different, care category is a mandatory reporting reporting period. If the featured artist is must be taken in reporting only the category for each sound recording. Each an individual or an entity such as a featured artist. For example, if the service must provide the name of the band, the full name must be reported. In sound recording is a performance of the featured artist for each sound recording those instances where the songwriter Boston Philharmonic Orchestra of a
15 As discussed, infra, the required data fields for report for each sound recording. If, for example, a including up to two side channels of programming a record of use under the section 114 license are service possesses the ISRC for a sound recording consistent with the mission of the station, and are the same for a record of use under the section 112 but prefers instead to report the Sound Recording subject to a section 114 royalty of 0.02 cents per license. Services using both licenses only need Title, Album Title and Marketing Label instead, it performance. report the required data fields once for each sound is free to do so. 18 Transmissions covered by this provision recording. 17 Transmissions covered by these provisions 16 Simply because a service has the ISRC and/or include simultaneous Internet retransmissions by include Internet transmissions on other side Actual Total Performances for a sound recording non-Corporation for Public Broadcasting channels of programming by non-Corporation for does not mean the service must report this data in noncommercial broadcasters of over-the-air AM or Public Broadcasting noncommercial broadcasters lieu of the alternative categories. The purpose of FM broadcasts by the same radio station and other and are subject to a section 114 royalty of 0.07 cents reporting ISRC and/or Actual Total Performances is Internet transmissions of non-Corporation for per performance. to reduce the categories of data that a service must Public Broadcasting noncommercial broadcasters,
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work by Mozart, the featured artist (ii) Marketing Label. The Marketing report the number of performances of a should be reported as the Boston Label is the name of the company that sound recording will subvert the Philharmonic Orchestra, not Mozart. markets the album which contains the purpose of the recordkeeping Likewise, where the sound recording sound recording. As with album titles, requirement in that many sound performed is taken from an album that it is sometimes the case that services do recordings will be under-compensated contains various featured artists (i.e., a not possess, or are not supplied with, or not compensated at all from the compilation), it is not acceptable to the name of the marketing label for the section 114 and 112 royalties. The report the artist as ‘‘Various.’’ The sound recording. Services need only Copyright Office is therefore permitting featured artist of the particular sound report the marketing label if that services to identify the total number of recording track performed must be information was in their possession, or performances of a sound recording reported. was supplied to them by the marketing during the reporting period in one of 4. Sound Recording Title. As with the label, at or before the time the two ways: Actual Total Performances or featured artist, care must be taken in performance of the sound recording is Aggregate Tuning Hours, Channel or accurately reporting the title of the made. Discarding marketing label Program Name, and Play Frequency. sound recording (i.e., the song title). It information, or not including it in the a. Actual Total Performances. For is not acceptable to report the name of database into which the sound those services that possess the the album from which the sound recording is copied, does not relieve the technological ability to identify recording is taken. service of the obligation to report the accurately the number of times that a 5. Sound Recording Identification: information. sound recording is performed (such as a. International Standard Recording 6. Total Performances. Services must those that generate intended play lists), Code (ISRC). The International Standard provide the total number of the number of performances must be Recording Code (‘‘ISRC’’) is the unique performances of each sound recording reported in the performance data field. identifier that identifies each version of during the relevant reporting period. The data reported in this field may be a sound recording. It is imbedded in Section 261.2, 37 CFR, defines a for each time the sound recording is promotional and commercially released ‘‘performance’’ as: transmitted or ‘‘played’’ during the sound recordings and can be read by reporting period, or for all Actual Total currently available software. A service [E]ach instance in which any portion of a sound recording is publicly performed to a Performances of the sound recording may report the ISRC of a sound 19 Listener by means of a digital audio during the relevant reporting period. recording in lieu of the Sound transmission or retransmission (e.g. the b. For those services that lack the Recording Title, Album Title and delivery of any portion of a single track from technological ability to report the actual Marketing Label. However, a compact disc to one Listener) but excluding number of performances, or choose not identification of the Featured Artist is the following: to report such information, the still required. The purpose of this (1) A performance of a sound recording Aggregate Tuning Hours, Channel or requirement is to permit verification of that does not require a license (e.g. the sound Program Name, and Play Frequency the correct ISRC by allowing recording is not copyrighted); information must be reported for each (2) A performance of a sound recording for SoundExchange to identify and correct sound recording. reports where the Featured Artist does which the service has previously obtained a license from the Copyright Owner of such (i) Aggregate Tuning Hours. Aggregate not match the information associated sound recording; and Tuning Hours (‘‘ATH’’) are a standard with the ISRC. (3) An incidental performance that both: (i) measure of listenership that can be used b. For those services that do not report Makes no more than incidental use of sound to estimate the Actual Total the ISRC for a sound recording, the recordings, including, but not limited to, Performances of sound recordings. Album Title and Marketing Label must brief musical transitions in and out of Aggregate Tuning Hours measure the be reported. commercials or program segments, brief total number of listener hours by all (i) Album Title. According to the performances during news, talk and sports who have accessed the service during a comments and the May 10, 2002, public programming, brief background performances given period of time. According to during disk jockey announcements, brief meeting, the title of an album on which certain broadcasters, ATH for AM/FM a particular sound recording appears performances during commercials of sixty seconds or less in duration, or brief radio stations are readily calculable by may not be determined at the time the performances during sporting or other public a service. See Joint Reply Comments of sound recording is released to events; and Radio Broadcasters at 26 (submitted broadcasters and webcasters for (ii) Other than ambient music that is April 26, 2002). performance; or the album title background at a public event, does not Aggregate Tuning Hours do not, by information may not be supplied by the contain an entire sound recording and does themselves, provide sufficient recording label. Consequently, services not feature a particular sound recording of information on which to estimate the need only report the album title for a more than thirty seconds (as in the case of Total Performances of a sound a sound recording used as a theme song). particular sound recording when they recording. However, when combined have that information in their See, 69 FR 5693 (February 6, 2004). with information regarding the Channel possession, or it has been supplied by Certain services argue that it is not or Program Name on which the sound the recording label, at or before the time possible, in many circumstances, to recording appeared and the Play of performance of the sound recording. keep track of the number of Frequency, Aggregate Tuning Hours will Those services which copy sound performances of a sound recording. See, permit SoundExchange to estimate the recordings into databases for subsequent e.g. Comments of Harvard Broadcasting Total Performances for a sound transmission to their users and do not Radio Company at 2 (submitted recording during the reporting period. enter the album title into that database September 30, 2002); Comments of are nonetheless responsible for NRBMLC and Salem Communications 19 If a service chooses to enter the Actual Total providing the album title if that Corp. at 4 (submitted September 30, Performance data for each time the sound recording information was in their possession, or 2002); Comments of Collegiate is transmitted or ‘‘played,’’ it will be required to repeat the full data for the sound recording to been supplied to them, at or before the Broadcasters, Inc. at 6–7 (submitted account for all transmissions or ‘‘playings’’ of the time the sound recording was September 30, 2002). Obviously, sound recording during the relevant accounting performed. repeated failures by multiple services to period.
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See Comments of SoundExchange, Inc. sound recording is offered 10 times value of ephemeral copies made under at 17 n.6 (submitted September 30, during the two-week reporting period, the section 112 license. Our decision is 2002). Services electing to report then it is ‘‘played’’ ten times and the bolstered by two factors. First, in the Aggregate Tuning Hours for a sound Play Frequency is 10. recent nonsubscription service CARP recording in lieu of the Actual Total proceeding, RIAA advocated that the D. Required Data Fields for a Record of Performances must report the Aggregate royalty fee for section 112 be a Use Under the Section 112 License Tuning Hours for the two-week percentage of the section 114 fee, reporting period selected by the service Section 112 of the Copyright Act apparently recognizing the difficulty of for the channel or program on which the contains a statutory license that permits assessing the independent value of sound recording was performed. If the services making digital audio ephemeral copies. RIAA’s Proposed same sound recording was performed on transmissions to make ephemeral copies Findings of Fact and Conclusions of more than one channel or program, a of sound recordings necessary to the Law at ¶244 (submitted December 3, complete separate record of use must be transmission process. Some services 2001). Second, while RIAA submits that reported for each channel or program. operate under both section 114 and SoundExchange may choose to Under no circumstances may a service section 112 in transmitting sound distribute section 112 royalties on the fail to report any data in the recordings, while some do not make use basis of the number of copies, it may not performance data field when submitting of the section 114 licenses because their do so. See 37 CFR 261.4(a) and (h). a record of use of a sound recording. performances of sound recordings are For services that make transmissions (ii) Channel or Program Name. The exempted by the Copyright Act. See 17 under one or more of the section 114 Channel Name for an AM or FM radio U.S.C. 114(1)(C)(iv). These business licenses, there is no need to keep station should be the FCC facility establishment services, however, make separate records for ephemeral copies identification number (e.g., WABC–FM). ephemeral copies under the section 112 made under section 112. Those services For all other transmissions, the Channel statutory license. are required to submit only the single or Program Name should be the name Section 112(e)(4) requires the data file for performances of sound assigned by the service (e.g., ‘‘Oldies Copyright Office to establish recordings and need not submit a Hits,’’ ‘‘70’s Rock’’), ‘‘provided that if a requirements by which copyright second data file for ephemeral copies. program is generated as a random list of owners receive notice and records of use However, even though the service is not sound recordings from a predetermined of the ephemeral copies of their sound required to report a separate data file, it list, the channel or program must be a recordings. The RIAA and must identify to the receiving and unique identifier differentiating each SoundExchange, Inc. have requested designated agents during each reporting user’s randomized playlist from all that the Office require detailed records period that it has made use of the other users’ randomized playlists.’’ 67 of each ephemeral copy of a sound section 112 license and that the data file FR 5761, 5766 (February 7, 2002). recording made during the transmission it is submitting applies to both licenses. (iii) Play Frequency. Aggregate of the performance. Comments of RIAA For business establishment services Tuning Hours and Channel or Program at 61–62 (submitted April 5, 2002); that do not make use of the section 114 Name are not sufficient, by themselves, Comments of SoundExchange at Tab A, license but do make use of the section to permit an equitable distribution of p. 11 (submitted September 30, 2002). 112 license, performance data shall royalties collected under the section 112 Broadcasters counter that detailed serve as the records of use for section and 114 licenses. A sound recording reporting of the number of ephemeral 112. All the requirements prescribed by which is played 100 times during the copies made is unnecessary because of this regulation for the section 114 two-week reporting period is of greater the direct link between the royalty fees license records of use (data fields, value and should receive a larger paid by nonsubscription services for the formatting, delivery, etc.) apply to distribution of royalties than a sound section 114 license and the section 112 submission of section 112 records of recording played only once during that license; the ephemeral royalty rate for use. Such services must identify to the same period. Consequently, it is nonsubscription services is a percentage receiving and designated agents for each necessary for services that elect not to of the section 114 fee for performances. reporting period that the data they are report Actual Total Performances to The number of ephemeral copies made submitting is for the use of the section report the number of times each sound is irrelevant because the value of those 112 license and not the section 114 recording is played during the two week copies is tied to the value of the license. reporting period. performance of the sound recording. Play Frequency is different than Joint comments of Radio Broadcasters at E. Sound Recordings Not Licensed performance data. According to the 57–58 (submitted April 5, 2002). Under Section 112/114 definition of ‘‘performance’’ in 37 CFR Furthermore, broadcasters assert that Many services, particularly those 262.2, a sound recording is performed tracking the number of ephemeral performing older works, transmit sound each time a listener receives at least copies made of a sound recording to recordings that are not under federal some portion of the sound recording. A facilitate its performance is a virtually copyright protection or whose term has sound recording that is received in some impossible task and will result in a high expired. Also, many services may part by 10 listeners constitutes 10 error rate if reporting is required. Id. at perform works that are in the public performances of that sound recording. 58. domain, or for which no copyright is In contrast, ‘‘played’’ simply means the It is reasonable to conclude that the claimed, or may directly license certain overall number of times a sound value of a license to make ephemeral sound recordings from their owners. recording is offered, regardless of the copies of a sound recording for the Services performing these works may number of listeners receiving the sound purpose of facilitating a transmission report records of their usage but are not recording. If a particular sound that results in a performance will required to do so. Services are recording is offered to listeners on a depend upon the value of the cautioned, however, that failure to particular channel or program only once performances of that sound recording. report a sound recording which is under during the two-week reporting period, The Copyright Office is persuaded that copyright protection may preclude then it is only ‘‘played’’ once and the records of performances of sound reliance upon the section 114 and Play Frequency is one. Likewise, if the recordings are a sound proxy for the section 112 statutory licenses for the
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performance and/or making of first period under these regulations that Broadcasters at 32 (submitted April 26, ephemeral copies of the work. reports of use must be made. Reports of 2002); Comments of Collegiate use thereafter will be due for each Broadcasters at 7 (submitted April 5, X. The Reporting Periods calendar quarter as described above 2002). The Copyright Office must As discussed above, the reporting until this interim regulation is recoup its costs for administering the requirements announced today are superceded by final regulations. section 112 and 114 statutory licenses; adopted on an interim basis while the A separate report of use is required for therefore it cannot waive the fee. Copyright Office continues the each calendar quarter for each statutory Moreover, the $20 fee is not rulemaking process to produce final license used by the service. unreasonable or unduly burdensome. regulations. The interim regulations XI. Notification of Use of the Statutory Part of the cost associated with the apply to performances on a prospective Licenses licenses is maintaining the public files basis. It is anticipated that the Office for the notices and the Office shall will address the status of performances The Copyright Office proposed in the continue that practice. Unfortunately, made prior to the effective date of these NPRM certain amendments to the the Office is not prepared at this time to interim regulations at a later time. In the regulations contained in former 37 CFR accept the submission of notices and meantime, services should preserve 201.35 governing notice of use of fees electronically, and for the time those records of performances in their statutory licenses. Unlike records of use, being we will continue our practice of possession dating back to the effective there is agreement on some of the accepting only hard copies of notices date of the section 112 and 114 statutory proposed changes offered in the NPRM. and payment. It is anticipated that this licenses. Commenters agree that the Office may change in the future, and services For the same reasons that the Office should prescribe a single standard form using the section 112 and 114 licenses considers it advisable to phase in the for both the section 112 and 114 are encouraged to check the Office Web reporting process, we have determined licenses and generally agree to the site for updates on this matter. that, at this stage, it is best to require prototype form currently posted on the The Office stated in the NPRM that it periodic reporting of sound recording Copyright Office Web site at: http:// was considering discontinuing its performances rather than year-round www.loc.gov/copyright/forms/form112- practice of posting copies of all notices census reporting. Once final regulations 114nou.pdf. See, e.g. Comments RIAA at on its Web site and requiring that are implemented, year-round census 17–19 (submitted April 5, 2002); Joint notices be filed jointly with, or in the reporting is likely to be the standard Reply of Radio Broadcasters at 32–34 alternative only with, the collectives measure rather than the periodic (submitted April 26, 2002). With respect designated through the CARP process to reporting that will now be permitted on to the form, RIAA requests that the receive and distribute royalties under an interim basis. services be identified in the exact the section 112 and 114 licenses. RIAA For the period beginning with the manner in which they appear in the opposes elimination of the practice of effective date of this interim regulation statute (e.g. ‘‘Eligible non-subscription posting notices on the Office Web site, until superseded by further regulations, transmission service’’ as opposed to arguing that the notices should be services making use of the section 114 ‘‘Non-subscription transmission available to all copyright owners and license (other than preexisting service’’), whereas broadcasters request not just those in the Washington, DC, subscription services governed by 37 ‘‘plain English’’ descriptions of the area. Comments of RIAA at 20–21 CFR 270.1, 270.2, and 270.4) and the various services identified in the form. (submitted April 5, 2002). The Office section 112 license shall maintain Joint Reply of Radio Broadcasters at 33 will post a list of names of those persons records, as provided above, for each (submitted April 26, 2002); Comments and entities that have filed a notice, but sound recording performed for a period of Collegiate Broadcasters at 5–6 we will not continue to post the notices of no less than two weeks (two periods (submitted April 5, 2002). We are themselves. Scanning and posting the of seven consecutive days) for each accepting RIAA’s suggestion to conform full notices is extremely costly and quarter of the calendar year. the definitions. While broadcasters’ burdensome. When we institute our The two weeks reported need not be suggestion for ‘‘plain English’’ sounds electronic filing system, we will revisit consecutive, although a service may reasonable in theory, it is a considerable the issue. In the meantime, persons choose that option. Likewise, each week challenge to craft definitions that are interested in viewing the notices must period need not begin on a Sunday, but sufficiently colloquial to satisfy the goal contact the Copyright Office. may begin on any day of the week and of ‘‘plain English,’’ yet remain None of the commenters favor then run for a total of seven consecutive technically accurate. Unfortunately, submission of notices to the royalty days. The two weeks chosen for broadcasters did not provide any collectives designated by the CARP reporting should reflect as much as language for the Office to consider, and process, either solely or jointly. See, e.g. possible the programming typically we therefore are not adopting their Comments of the RIAA at 22–23 offered by the service during the suggestion. (submitted April 5, 2002); Joint Reply of calendar quarter. Services that wish to Commenters also agree that new Radio Broadcasters at 33 (submitted report records of use for periods beyond notices of intent to use the licenses April 26, 2002). Consequently, the Office will not adopt such a the two weeks of each calendar quarter should be filed to update information requirement. are encouraged to consult with from previously submitted notices and Updated notices, along with the $20 SoundExchange on the feasibility of that notices should be maintained in a filing fee specified in § 201.3(e) of title doing so and, if SoundExchange public file at the Copyright Office. 37 of the Code of Federal Regulations, concurs, to report for longer periods of Broadcasters, however, request that if shall be filed with the Licensing time. new notices are required to be filed, the Division of the Copyright Office no later The first reporting period shall begin $20 filing fee be waived for those who than July 1, 2004. The Office stated in on April 1, 2004,20 which will mark the have previously submitted notices and paid the fee. Joint Reply of Radio the NPRM that it was considering 20 This does not mean that services will be requiring periodic updating of notices, required to keep records commencing April 1. month calendar quarter during which services must perhaps on an annual basis. We are Rather, April 1 is the beginning of the first three- keep records for two weeks. declining at this time to adopt a regular
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specified time period, preferring to gain section 112(e) or 114(d)(2) of title 17, under section 114(d)(1) of title 17 of the experience in determining whether United States Code, or both. United States Code and are made as part mandatory periodic updates by all (b) Definitions. (1) A Notice of Use of of a service that provides audio services are necessary. The matter will Sound Recordings under Statutory programming consisting, in whole or in be further addressed in the final License is a written notice to sound part, of performances of sound regulations. recording copyright owners of the use of recordings, including transmissions of Notices of intent to use the section their works under section 112(e) or broadcast transmissions, if the primary 112 and/or 114 licenses by new 114(d)(2) of title 17, United States Code, purpose of the service is to provide to subscription services will still be or both, and is required under this the public such audio or other required to be filed prior to the date of section to be filed by a Service in the entertainment programming, and the first transmission or the making of an Copyright Office. primary purpose of the service is not to ephemeral recording, and services will (2) A Service is an entity engaged in sell, advertise, or promote particular continue to be required to update the either the digital transmission of sound products or services other than sound notice within 45 days of change in the recordings pursuant to section 114(d)(2) recordings, live concerts, or other information reported. Notices for new of title 17 of the United States Code or music-related events. subscription services must be submitted making ephemeral phonorecords of (iv) A new subscription service is a to the Licensing Division of the sound recordings pursuant to section service that performs sound recordings Copyright Office accompanied by the 112(e) of title 17 of the United States by means of noninteractive subscription filing fee specified in 37 CFR 201.3(e). Code or both. For purposes of this digital audio transmissions and that is section, the definition of a Service not a preexisting subscription service or List of Subjects in 37 CFR Parts 201 and includes an entity that transmits an AM/ a preexisting satellite digital audio radio 270 FM broadcast signal over a digital service. Copyright, Sound recordings. communications network such as the (v) A business establishment service is Internet, regardless of whether the a service that makes ephemeral Interim Regulation transmission is made by the broadcaster phonorecords of sound recordings that originates the AM/FM signal or by ■ pursuant to section 112(e) of title 17 of In consideration of the foregoing, the a third party, provided that such the United States Code and is exempt Copyright Office amends part 201 of 37 transmission meets the applicable under section 114(d)(1)(C)(iv) of title 17 CFR and adds part 270 to 37 CFR to read requirements of the statutory license set of the United States Code. as follows: forth in 17 U.S.C. 114(d)(2). A Service ■ (c) Forms and content. A Notice of 1. The authority citation for part 201 may be further characterized as either a Use of Sound Recordings Under continues to read as follows: preexisting subscription service, Statutory License shall be prepared on Authority: 17 U.S.C. 702. preexisting satellite digital audio radio service, nonsubscription transmission a form that may be obtained from the PART 201—GENERAL PROVISIONS service, new subscription service, Copyright Office website or from the business establishment service or a Licensing Division, and shall include §§ 201.35 through 201.37 [Removed and the following information: Reserved] combination of those: (i) A preexisting subscription service (1) The full legal name of the Service ■ 2. Remove and reserve §§ 201.35 is a service that performs sound that is either commencing digital through 201.37. recordings by means of noninteractive transmissions of sound recordings or ■ 3. Add part 270 to 37 CFR Chapter II, audio-only subscription digital audio making ephemeral phonorecords of subchapter B, to read as follows: transmissions, and was in existence and sound recordings under statutory making such transmissions to the public license or doing both. PART 270—NOTICE AND for a fee on or before July 31, 1998, and (2) The full address, including a RECORDKEEPING REQUIREMENTS may include a limited number of sample specific number and street name or rural FOR STATUTORY LICENSES channels representative of the route, of the place of business of the Service. A post office box or similar Sec. subscription service that are made 270.1 Notice of use of sound recordings available on a nonsubscription basis in designation will not be sufficient except under statutory license. order to promote the subscription where it is the only address that can be 270.2 Reports of use of sound recordings service. used in that geographic location. under statutory license for preexisting (ii) A preexisting satellite digital (3) The telephone number and subscription services. audio radio service is a subscription facsimile number of the Service. 270.3 Reports of use of sound recordings satellite digital audio radio service (4) Information on how to gain access under statutory license for provided pursuant to a satellite digital to the online website or homepage of the nonsubscription transmission services, audio radio service license issued by the Service, or where information may be preexisting satellite digital audio radio posted under this section concerning services, new subscription services and Federal Communications Commission business establishment services. on or before July 31, 1998, and any the use of sound recordings under 270.4 Designated collection and renewal of such license to the extent of statutory license. distribution organizations for records of the scope of the original license, and (5) Identification of each license use of sound recordings under statutory may include a limited number of sample under which the Service intends to license. channels representative of the operate, including identification of each Authority: 17 U.S.C. 702. subscription service that are made of the following categories under which available on a nonsubscription basis in the Service will be making digital § 270.1 Notice of use of sound recordings order to promote the subscription transmissions of sound recordings: under statutory license. service. preexisting subscription service, (a) General. This section prescribes (iii) A nonsubscription transmission preexisting satellite digital audio radio rules under which copyright owners service is a service that makes service, nonsubscription transmission shall receive notice of use of their sound noninteractive nonsubscription digital service, new subscription service or recordings when used under either audio transmissions that are not exempt business establishment service.
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(6) The date or expected date of the License with the Licensing Division of Collective, on or before the twentieth initial digital transmission of a sound the Copyright Office prior to the making day after the close of each month. recording to be made under the section of the first ephemeral phonorecord of a (d) Posting. In the event that no 114 statutory license and/or the date or sound recording under the statutory Collective is designated under the the expected date of the initial use of license. statutory license, or if all designated the section 112(e) license for the (f) Amendment. A Service shall file a Collectives have terminated collection purpose of making ephemeral new Notice of Use of Sound Recordings and distribution operations, a phonorecords of the sound recordings. under Statutory License within 45 days preexisting subscription service (7) Identification of any amendments after any of the information contained in transmitting sound recordings under required by paragraph (f) of this section. the Notice on file has changed, and shall statutory license shall post and make (d) Signature. The Notice shall indicate in the space provided by the available online its Reports of Use. include the signature of the appropriate Copyright Office that the Notice is an Preexisting subscription services shall officer or representative of the Service amended filing. The Licensing Division post their Reports of Use online on or that is either transmitting the sound shall retain copies of all prior Notices before the 20th day after the close of recordings or making ephemeral filed by the Service. each month, and make them available to phonorecords of sound recordings all sound recording copyright owners under statutory license or doing both. § 270.2 Reports of use of sound for a period of 90 days. Preexisting The signature shall be accompanied by recordings under statutory license for subscription services may require use of the printed or typewritten name and the preexisting subscription services. passwords for access to posted Reports title of the person signing the Notice (a) General. This section prescribes of Use, but must make passwords and by the date of the signature. rules under which preexisting available in a timely manner and free of (e) Filing notices; fees. The original subscription services shall serve charge or other restrictions. Preexisting and three copies shall be filed with the copyright owners with notice of use of subscription services may predicate Licensing Division of the Copyright their sound recordings, what the content provision of a password upon: Office and shall be accompanied by the of that notice should be, and under (1) Information relating to identity, filing fee set forth in § 201.3(c) of this which records of such use shall be kept location and status as a sound recording chapter. Notices shall be placed in the and made available. copyright owner; and public records of the Licensing Division. (b) Definitions. (1) A Collective is a (2) A ‘‘click-wrap’’ agreement not to The address of the Licensing Division is: collection and distribution organization use information in the Report of Use for Library of Congress, Copyright Office, that is designated under the statutory purposes other than royalty collection, Licensing Division, 101 Independence license, either by settlement agreement royalty distribution, and determining Avenue, SE, Washington, DC 20557– reached under section 114(f)(1)(A) or compliance with statutory license 6400. section 114(f)(1)(C)(i) of title 17 of the requirements, without the express (1) A Service that, prior to April 12, United States Code and adopted consent of the preexisting subscription 2004, has already commenced making pursuant to 37 CFR 251.63(b), or by service providing the Report of Use. digital transmissions of sound decision of a Copyright Arbitration (e) Content. A ‘‘Report of Use of recordings pursuant to section 114(d)(2) Royalty Panel (CARP) under section Sound Recordings under Statutory of title 17 of the United States Code or 114(f)(1)(B) or section 114(f)(1)(C)(ii), or License’’ shall be identified as such by making ephemeral phonorecords of by an order of the Librarian pursuant to prominent caption or heading, and shall sound recordings pursuant to section 17 U.S.C. 802(f). include a preexisting subscription 112(e) of title 17 of the United States (2) A Report of Use of Sound service’s ‘‘Intended Playlists’’ for each Code, or both, and that has already filed Recordings under Statutory License is a channel and each day of the reported an Initial Notice of Digital Transmission report required under this part to be month. of Sound Recordings Under Statutory provided by the preexisting subscription (1) The ‘‘Intended Playlists’’ shall License, and that intends to continue to service transmitting sound recordings include a consecutive listing of every make digital transmissions or ephemeral under statutory license. recording scheduled to be transmitted, phonorecords following July 1, 2004, (3) A Preexisting Subscription Service and shall contain the following shall file a Notice of Use of Sound is an entity engaged in the digital information in the following order: Recordings under Statutory License transmission of sound recordings (i) The name of the preexisting with the Licensing Division of the pursuant to section 114(f) of title 17 of subscription service or entity; Copyright Office no later than July 1, the United States Code. (ii) The channel; 2004. (c) Service. Reports of Use shall be (iii) The sound recording title; (2) A Service that, on or after July 1, served upon Collectives that are (iv) The featured recording artist, 2004, commences making digital identified in the records of the group, or orchestra; (v) The retail album title (or, in the transmissions and ephemeral Licensing Division of the Copyright case of compilation albums created for phonorecords of sound recordings Office as having been designated under commercial purposes, the name of the the statutory license, either by under statutory license shall file a retail album identified by the settlement agreement reached under Notice of Use of Sound Recordings preexisting subscription service for section 114(f)(1)(A) or section under Statutory License with the purchase of the sound recording); Licensing Division of the Copyright 114(f)(1)(C)(i) and adopted pursuant to (vi) The recording label; Office prior to the making of the first 37 CFR 251.63(b), or by decision of a (vii) The catalog number; ephemeral phonorecord of the sound Copyright Arbitration Royalty Panel (viii) The International Standard recording and prior to the first igital (CARP) under section 114(f)(1)(B) or Recording Code (ISRC) embedded in the transmission of the sound recording. section 114(f)(1)(C)(ii), or by an order of sound recording, where available and (3) A Service that, on or after July 1, the Librarian pursuant to 17 U.S.C. feasible; 2004, commences making only 802(f). Reports of Use shall be served, by (ix) The date of transmission; and ephemeral phonorecords of sound certified or registered mail, or by other (x) The time of transmission. recordings, shall file a Notice of Use of means if agreed upon by the respective (2) The Report of Use shall include a Sound Recordings under Statutory preexisting subscription service and report of any system failure resulting in
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a deviation from the Intended Playlists § 270.3 Reports of use of sound (3) A Collective is a collection and of scheduled sound recordings. Such recordings under statutory license for distribution organization that is report shall include the date, time and nonsubscription transmission services, designated under one or both of the preexisting satellite digital audio radio duration of any such system failure. services, new subscription services and statutory licenses, either by settlement (f) Signature. Reports of Use shall business establishment services. agreement reached under section 112(e)(3), section 112(e)(6), section include a signed statement by the (a) General. This section prescribes 114(f)(1)(A), section 114(f)(1)(C)(i), appropriate officer or representative of rules under which nonsubscription section 114(f)(2)(A), or section the preexisting subscription service transmission services, preexisting attesting, under penalty of perjury, that satellite digital audio radio services, 114(f)(2)(C)(i) and adopted pursuant to the information contained in the Report new subscription services, and business § 251.63(b) of this chapter, or by a is believed to be accurate and is establishment services shall maintain decision of a Copyright Arbitration maintained by the preexisting reports of use of their sound recordings Royalty Panel under section 112(e)(4), subscription service in its ordinary under section 112(e) or section 114(d)(2) section 112(e)(6), section 114(f)(1)(B), course of business. The signature shall of title 17 of the United States Code, or section (f)(1)(C)(ii), section 114(f)(2)(B), be accompanied by the printed or both. or section 114(f)(2)(C)(ii) or by order of typewritten name and title of the person (b) Definitions. (1) Aggregate Tuning the Librarian of Congress pursuant to 17 signing the Report, and by the date of Hours are the total hours of U.S.C. 802(f). signature. programming that a nonsubscription (4) A new subscription service is transmission service, preexisting defined in § 270.1(b)(2)(iv). (g) Format. Reports of Use should be (5) A nonsubscription transmission provided on a standard machine- satellite digital audio radio service, new subscription service or business service is defined in § 270.1(b)(2)(iii). readable medium, such as diskette, (6) A preexisting satellite digital audio establishment service has transmitted optical disc, or magneto-optical disc, radio service is defined in during the reporting period identified in and should conform as closely as § 270.1(b)(2)(ii). possible to the following specifications: paragraph (c)(3) of this section to all (7) A business establishment service is (1) ASCII delimited format, using pipe listeners within the United States over defined in § 270.1(b)(2)(v). characters as delimiter, with no headers the relevant channels or stations, and (8) A performance is each instance in or footers; from any archived programs, that which any portion of a sound recording provide audio programming consisting, (2) Carats should surround strings; is publicly performed to a Listener by in whole or in part, of eligible means of a digital audio transmission or (3) No carats should surround dates nonsubscription service, preexisting and numbers; retransmission (e.g., the delivery of any satellite digital audio radio service, new portion of a single track from a compact (4) Dates should be indicated by: MM/ subscription service or business disc to one Listener) but excluding the DD/YYYY; establishment service transmissions, following: (5) Times should be based on a 24- less the actual running time of any (i) A performance of a sound hour clock: HH:MM:SS; sound recordings for which the service recording that does not require a license (6) A carriage return should be at the has obtained direct licenses apart from (e.g., the sound recording is not end of each line; and 17 U.S.C. 114(d)(2) or which do not copyrighted); require a license under United States (7) All data for one record should be (ii) A performance of a sound copyright law. For example, if a on a single line. recording for which the service has nonsubscription transmission service previously obtained a license from the (h) Confidentiality. Copyright owners, transmitted one hour of programming to Copyright Owner of such sound their agents and Collectives shall not 10 simultaneous listeners, the recording; and disseminate information in the Reports nonsubscription transmission service’s (iii) An incidental performance that of Use to any persons not entitled to it, Aggregate Tuning Hours would equal both: nor utilize the information for purposes 10. If 3 minutes of that hour consisted (A) Makes no more than incidental other than royalty collection and of transmission of a directly licensed use of sound recordings including, but distribution, and determining recording, the nonsubscription not limited to, brief musical transitions compliance with statutory license transmission service’s Aggregate Tuning in and out of commercials or program requirements, without express consent Hours would equal 9 hours and 30 segments, brief performances during of the preexisting subscription service minutes. If one listener listened to the news, talk and sports programming, providing the Report of Use. transmission of a nonsubscription brief background performances during (i) Documentation. All compulsory transmission service for 10 hours (and disk jockey announcements, brief licensees shall, for a period of at least none of the recordings transmitted performances during commercials of three years from the date of service or during that time was directly licensed), sixty seconds or less in duration, or posting of the Report of Use, keep and the nonsubscription transmission brief performances during sporting or retain a copy of the Report of Use. For service’s Aggregate Tuning Hours would other public events and reporting periods from February 1, 1996, equal 10. (B) Other than ambient music that is through August 31, 1998, the (2) An AM/FM Webcast is a background at a public event, does not preexisting subscription service shall transmission made by an entity that contain an entire sound recording and serve upon all designated Collectives transmits an AM/FM broadcast signal does not feature a particular sound and retain for a period of three years over a digital communications network recording of more than thirty seconds from the date of transmission records of such as the Internet, regardless of (as in the case of a sound recording used use indicating which sound recordings whether the transmission is made by the as a theme song). were performed and the number of broadcaster that originates the AM/FM (9) Play frequency is the number of times each recording was performed, signal or by a third party, provided that times a sound recording is publicly but is not required to produce full such transmission meets the applicable performed by a Service during the Reports of Use or Intended Playlists for requirements of the statutory license set relevant period, without respect to the those periods. forth in 17 U.S.C. 114(d)(2). number of listeners receiving the sound
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recording. If a particular sound (A) For eligible nonsubscription (two periods of 7 consecutive days) for recording is transmitted to listeners on transmissions other than broadcast each calendar quarter of the year. The a particular channel or program only simulcasts and transmissions of non- two weeks need not be consecutive, but once during the two-week reporting music programming; both weeks must be completely within period, then the play frequency is one. (B) For eligible nonsubscription the calendar quarter. If the sound recording is transmitted 10 transmissions of broadcast simulcast (4) Signature. Reports of Use shall times during the two-week reporting programming not reasonably classified include a signed statement by the period, then the play frequency is 10. as news, talk, sports or business appropriate officer or representative of (10) A Report of Use is a report programming; the service attesting, under penalty of required under this section to be (C) For eligible nonsubscription perjury, that the information contained provided by a nonsubscription transmissions of non-music in the Report is believed to be accurate transmission service and new programming reasonably classified as and is maintained by the service in its subscription service that is transmitting news, talk, sports or business ordinary course of business. The sound recordings pursuant to the programming; signature shall be accompanied by the statutory license set forth in section (D) For eligible nonsubscription printed or typewritten name and the 114(d)(2) of title 17 of the United States transmissions by a non-Corporation for title of the person signing the Report, Code or making ephemeral Public Broadcasting noncommercial and by the date of the signature. phonorecords of sound recordings broadcaster making transmissions (5) Confidentiality. Copyright owners, pursuant to the statutory license set covered by §§ 261.3(a)(2)(i) and (ii) of their agents and Collectives shall not forth in section 112(e) of title 17 of the this chapter; disseminate information in the Reports United States Code, or both. (E) For eligible nonsubscription of Use to any persons not entitled to it, (c) Report of Use. (1) Separate reports transmissions by a non-Corporation for nor utilize the information for purposes not required. A nonsubscription Public Broadcasting noncommercial other than royalty collection and transmission service, preexisting broadcaster making transmissions distribution, without consent of the satellite digital audio radio service or a covered by § 261.3(a)(2)(iii) of this service providing the Report of Use. chapter; new subscription service that transmits (6) Documentation. A Service shall, (F) For eligible nonsubscription sound recordings pursuant to the for a period of at least three years from transmissions by a small webcaster statutory license set forth in section the date of service or posting of a Report operating under an agreement published 114(d)(2) of title 17 of the United States of Use, keep and retain a copy of the in the Federal Register pursuant to the Code and makes ephemeral Report of Use. phonorecords of sound recordings Small Webcaster Settlement Act; pursuant to the statutory license set (G) For eligible nonsubscription § 270.4 Designated collection and forth in section 112(e) of title 17 of the transmissions by a noncommercial distribution organizations for records of United States Code need not maintain a broadcaster operating under an use of sound recordings under statutory license. separate Report of Use for each statutory agreement published in the Federal license during the relevant reporting Register pursuant to the Small (a) General. This section prescribes periods. Webcaster Settlement Act; rules under which records of use shall (2) Content. For a nonsubscription (H) For transmissions other than be collected and distributed under transmission service, preexisting broadcast simulcasts and transmissions section 114(f) of title 17 of the United satellite digital audio radio service, new of non-music programming made by an States Code, and under which records of subscription service or business eligible new subscription service; such use shall be kept and made establishment service that transmits (I) For transmissions of broadcast available. sound recordings pursuant to the simulcast programming not reasonably (b) Definitions. (1) A Collective is a statutory license set forth in section classified as news, talk, sports or collection and distribution organization 114(d)(2) of title 17 of the United States business programming made by an that is designated under the statutory Code, or the statutory license set forth eligible new subscription service; license, either by settlement agreement (J) For transmissions of non-music in section 112(e) of title 17 of the United reached under section 114(f)(1)(A) or programming reasonably classified as States Code, or both, each Report of Use section 114(f)(1)(C)(i) and adopted news, talk, sports or business shall contain the following information, pursuant to 37 CFR 251.63(b), or by programming made by an eligible new in the following order, for each sound decision of a Copyright Arbitration subscription service; and recording transmitted during the Royalty Panel (CARP) under section (K) For eligible transmissions by a reporting periods identified in 114(f)(1)(B) or section 114(f)(1)(C)(ii), or business establishment service making paragraph (c)(3) of this section: by an order of the Librarian pursuant to ephemeral recordings; 17 U.S.C. 802(f). (i) The name of the nonsubscription (iii) The featured artist; transmission service, preexisting (iv) The sound recording title; (2) A Service is an entity engaged in satellite digital audio radio service, new (v) The International Standard the digital transmission of sound subscription service or business Recording Code (ISRC) or, alternatively recordings pursuant to section 114(f) of establishment service making the to the ISRC, the title 17 of the United States Code. transmissions, including the name of (A) Album title; and (c) Notice of Designation as Collective the entity filing the Report of Use, if (B) Marketing label; under Statutory License. A Collective different; (vi) The actual total performances of shall file with the Licensing Division of (ii) The category transmission code for the sound recording during the the Copyright Office and post and make the category of transmission operated by reporting period or, alternatively, the available online a ‘‘Notice of the nonsubscription transmission (A) Aggregate Tuning Hours; Designation as Collective under service, preexisting satellite digital (B) Channel or program name; and Statutory License,’’ which shall be audio radio service, new subscription (C) Play frequency. identified as such by prominent caption service or business establishment (3) Reporting period. A Report of Use or heading, and shall contain the service: shall be prepared for a two-week period following information:
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(1) The Collective name, address, Collective shall provide each such provisions to allow VA to furnish an telephone number and facsimile Service with information identifying the appropriate marker for the graves of number; copyright owners it has served. eligible veterans buried in private (2) A statement that the Collective has Dated: February 26, 2004. cemeteries, regardless of whether the been designated for collection and Marybeth Peters, grave is already marked with a privately distribution of performance royalties purchased marker. under statutory license for digital Register of Copyrights. We provided a 60-day comment transmission of sound recordings; and James H. Billington, period that ended November 24, 2003. (3) Information on how to gain access The Librarian of Congress. We did not receive any comments. to the online website or home page of [FR Doc. 04–5404 Filed 3–10–04; 8:45 am] Based on the rationale set forth in the the Collective, where information may BILLING CODE 1410–33–U interim final rule and in this document, be posted under this part concerning the we adopt the provisions of the interim use of sound recordings under statutory final rule as a final rule without any license. The address of the Licensing DEPARTMENT OF VETERANS changes. Division is: Library of Congress, AFFAIRS Copyright Office, Licensing Division, Unfunded Mandates 101 Independence Avenue, SE., 38 CFR Part 1 The Unfunded Mandates Reform Act Washington, DC 20557–6400. requires, at 2 U.S.C. 1532, that agencies RIN 2900–AL40 (d) Annual Report. The Collective will prepare an assessment of anticipated post and make available online, for the Eligibility for an Appropriate costs and benefits before developing any duration of one year, an Annual Report Government Marker for a Grave rule that may result in an expenditure on how the Collective operates, how Already Marked at Private Expense by State, local, or tribal governments, in royalties are collected and distributed, the aggregate, or by the private sector, of and what the Collective spent that fiscal AGENCY: Department of Veterans Affairs. $100 million or more in any given year. year on administrative expenses. ACTION: Final rule. This rule would have no such effect on (e) Inspection of Reports of Use by State, local, or tribal governments, or the copyright owners. The Collective shall SUMMARY: This document affirms, private sector. make copies of the Reports of Use for without any changes, the provisions of the preceding three years available for the interim final rule that was published Paperwork Reduction Act inspection by any sound recording to reflect changes made by the Veterans This document does not contain new copyright owner, without charge, during Education and Benefits Expansion Act provisions constituting a collection of normal office hours upon reasonable of 2001 (Pub. L. 107–103) and the information under the Paperwork notice. The Collective shall predicate Veterans Benefits Act of 2002 (Pub. L. Reduction Act (44 U.S.C. 3501–3521). inspection of Reports of Use upon 107–330). The Office of Management and Budget information relating to identity, location This final rule establishes provisions has approved the existing information and status as a sound recording pursuant to the Veterans Education and collection under control number 2900– copyright owner, and the copyright Benefits Expansion Act of 2001 to allow 0222. owner’s written agreement not to utilize the Department of Veterans Affairs (VA) Regulatory Flexibility Act the information for purposes other than to furnish an appropriate Government royalty collection and distribution, and marker for the grave of an eligible The Secretary hereby certifies that determining compliance with statutory veteran buried in a private cemetery, this final rule will not have a significant license requirements, without express regardless of whether the grave is economic impact on a substantial consent of the Service providing the already marked with a privately number of small entities as they are Report of Use. The Collective shall purchased marker. Pursuant to the defined in the Regulatory Flexibility render its best efforts to locate copyright Veterans Benefits Act of 2002, the Act, 5 U.S.C. 601–612. Only individual owners in order to make available provisions of this final rule will apply VA beneficiaries could be directly records of use, and such efforts shall to requests to mark graves or affected. Therefore, pursuant to 5 U.S.C. include searches in Copyright Office memorialize eligible veterans whose 605(b), this final rule is exempt from the public records and published directories deaths occurred on or after September initial and final regulatory flexibility of sound recording copyright owners. 11, 2001. analyses requirements of sections 603 (f) Confidentiality. Copyright owners, DATES: Effective Date: This final rule is and 604. their agents, and Collectives shall not effective September 25, 2003. disseminate information in the Reports Catalog of Federal Domestic Assistance Applicability Date: The provisions of of Use to any persons not entitled to it, Numbers 38 CFR 1.631 apply to deaths occurring nor utilize the information for purposes The Catalog of Federal Domestic on or after September 11, 2001. other than royalty collection and Assistance program number for this distribution, and determining FOR FURTHER INFORMATION CONTACT: document is 64.202. compliance with statutory license David K. Schettler, Director of Memorial List of Subjects in 38 CFR Part 1 requirements, without express consent Programs Service (MPS), National of the Service providing the Report of Cemetery Administration, Department Administrative practice and Use. of Veterans Affairs, 810 Vermont procedure, Cemeteries, Veterans. Avenue, NW., Washington, DC 20420. (g) Termination and dissolution. If a Approved: February 25, 2004. Telephone: (202) 501–3100 (this is not Collective terminates its collection and Anthony J. Principi, distribution operations prior to the close a toll-free number). Secretary of Veterans Affairs. of its term of designation, the Collective SUPPLEMENTARY INFORMATION: On shall notify the Copyright Office, and all September 25, 2003, VA published an PART 1—[AMENDED] Services transmitting sound recordings interim final rule in the Federal under statutory license, by certified or Register (68 FR 55317). The interim ■ Accordingly, the interim final rule registered mail. The dissolving final rule amended VA’s burial benefits amending 38 CFR part 1 that was
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published in the Federal Register at 68 Two mailing houses and one 2.0 Postage and Fees Refunds FR 55317 on September 25, 2003, is commercial mail customer commented 2.1 Refund Standards adopted as a final rule without change. on the effort required to segregate A refund for postage and fees may be [FR Doc. 04–5410 Filed 3–10–04; 8:45 am] mailpieces in a refund request by meter license numbers and to submit a made: BILLING CODE 8320–01–P separate PS Form 3533, Application and * * * * * Voucher for Refund of Postage, Fees, [Add new item e to read as follows:] and Services, for each meter. The e. Under the terms of a contract POSTAL SERVICE commercial customer also asked why between the contract postal unit (CPU) 39 CFR Part 111 this was a new regulation for refunds for and the USPS for unused postage unused, dated metered postage refunds. printed by the CPU. Refund Procedures for Metered The Postal Service understands the * * * * * Postage mailers’ concerns; however, segregating [Delete 2.5 and 2.6. Renumber current the unused, metered mail by meter, with 2.7 through 2.12 as new 2.5 through AGENCY: Postal Service. a separate PS Form 3533 for each meter 2.10, respectively.] ACTION: Final rule. for which a refund is requested, is not * * * * * a new requirement. No change to the SUMMARY: This final rule revises the proposed rule was made as a result of 2.7 Applying for Refund Domestic Mail Manual (DMMTM ) to this comment. allow refunds for unused, undated [Revise text of renumbered 2.7 to read metered postage. This mailing standard One commercial customer questioned as follows:] will benefit any mailer who generates whether the minimum piece/postage For refunds under 2.0, the customer significant quantities of unused, minimum requirement for refunds for must apply for a refund on Form 3533; undated metered postage and is able to undated metered mail applies to dated submit it to the postmaster; and provide meet the refund criteria. This final rule meter postage refunds. The proposed the envelope, wrapper, or a part of it also implements minor clarifications to rule included no change to the current showing the names and addresses of the the procedures for requesting refunds mailing standards for refunds for dated sender and addressee, canceled postage for unused, dated metered postage. The metered mail. There is no minimum and postal markings, or other evidence final rule also includes the terms under requirement for dated meter postage of postage and fees paid. Refunds for which a contract postal unit (CPU) will refunds. No change to the proposed rule metered postage are submitted under be eligible for refunds for its unused was made as a result of this comment. 3.0. printed postage. One retail mail customer referred to 2.8 Ruling on Refund Request mistakes made when applying dates on DATES: This revision is effective March [Revise text of renumbered 2.8 to read metered postage. The proposed rule 4, 2004. as follows:] made no changes to the procedures for FOR FURTHER INFORMATION CONTACT: Refund requests are decided based on handling refunds for dated metered Chuck Tricamo at (212) 613–8754, New the specific type of postage or mailing: postage. York Rates and Classification Service a. Refunds under 2.0. The local Center, United States Postal Service. ■ For the reasons stated in the preamble, postmaster grants or denies refunds SUPPLEMENTARY INFORMATION: The the Domestic Mail Manual is revised as under 2.0. The customer may appeal an proposed rule was published in the follows. The changes are incorporated by adverse ruling through the postmaster to Federal Register on October 29, 2003 reference in the Code of Federal the rates and classification service (68 FR 61647–61650). Although exempt Regulations. See 39 CFR part 111. center (RCSC) manager who issues the from the notice and comment List of Subjects in 39 CFR Part 111 final agency decision. requirements of the Administrative b. Dated metered postage, except for Procedure Act (5 U.S.C. 553(b), (c)) Administrative practice and PC Postage systems, under 3.0. The regarding proposed rulemaking by 39 procedure, Postal Service. postmaster at the licensing Post U.S.C. 410(a), the Postal Service invited OfficeTM grants or denies requests for public comments on the following PART 111—[AMENDED] refunds for dated metered postage under proposed amendments to the Domestic 3.0. The licensee may appeal an adverse ■ Mail Manual, incorporated by reference 1. The authority citation for 39 CFR ruling within 30 days through the in the Code of Federal Regulations. See part 111 continues to read as follows: manager, Postage Technology 39 CFR part 111. Comments were due Authority: 5 U.S.C. 552(a); 39 U.S.C. 101, Management, USPS Headquarters (see by November 28, 2003. 401, 403, 404, 414, 416, 3001, 3011, 3201, G043 for address), who issues the final 3219, 3403–3406, 3621, 3626, 5001. agency decision. The original meter Discussion of Comments ■ 2. Revise Domestic Mail Manual indicia must be submitted with the The Postal Service received six (DMM) as set forth below: appeal. comments in reference to this proposed c. Undated metered postage under 3.0. DMM revision. Three of the commenters Domestic Mail Manual (DMM) The manager, business mail entry were mailing houses, two were * * * * * (MBME), at the district Post Office commercial mail customers, and one overseeing the mailer’s licensing Post was from a retail mail customer. P Postage and Payment Methods Office, or designee authorized in One commercial mail customer and P000 Basic Information writing, grants or denies requests for one mailing house concurred with the refunds for undated metered postage proposed revision since it reduced their P010 General Standards under 3.0. The customer may appeal a risk of losing the amount paid for * * * * * decision on undated metered postage undated metered postage while within 30 days through the MBME, or enhancing their flexibility in choosing P014 Refunds and Exchanges designee, to the RCSC manager who when the mail is deposited. * * * * * issues the final agency decision. The
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original meter indicia must be paper or other medium. However, self- refund request must be submitted as submitted with the appeal. adhesive labels printed without a follows: d. PC Postage systems under 3.0. The backing may be submitted on a plain a. Only the meter licensee or the system provider grants or denies a sheet of paper. commercial entity that prepared the request for a refund for dated indicia f. If a part of one indicium is printed mailing for the licensee using the printed by PC Postage systems under 3.0 on one envelope or card and the licensee’s meter may request the refund. using established USPS criteria. For remaining part on one or more others, The request must include a letter signed dated PC Postage indicia only, the the envelopes or cards must be fastened by the meter licensee or the commercial licensee may appeal an adverse ruling together to show that they represent one entity that prepared the mailing for the within 30 days through the manager, indicium. licensee explaining why the mailpieces Postage Technology Management, USPS g. Refunds are allowable for indicia were not mailed. Headquarters, who issues the final on metered reply envelopes only when b. The minimum quantity of unused, agency decision. The original indicia it is obvious that an incorrect amount of undated metered postage that may be must be submitted with the appeal. postage was printed on them. submitted for refund is 500 pieces from e. Optional procedure (OP) mailings. h. The refund request must be a single mailing or, as an alternative, Mailer’s request for a refund must be submitted with a properly completed indicia with a total postage value of at submitted to the manager, Business Form 3533 (see I021). A separate Form least $500 from a single mailing. c. The meter licensee, or the Mailers Support (BMS), USPS 3533 must be completed for each meter commercial entity that prepared the Headquarters (see G043 for address). for which a refund is requested. All mailing for the licensee using the * * * * * identifying information and all sections licensee’s meter, must submit the related to the refund requested must be 3.0 Refund Request for Postage request, along with the items bearing the completed. Charges for processing a Evidencing Systems and Metered unused postage and the required refund request for unused, dated meter Postage documentation, to the manager, indicia are as follows: * * * * * business mail entry, at the district Post (1) If the total face value of the indicia Office overseeing the mailer’s licensing [Revise title and text of 3.2 to read as is $350 or less, the amount refunded is follows:] Post Office, or to a designee authorized 90% of the face value. USPS may in writing. The manager or designee 3.2 Unused, Dated Postage Evidencing process the refund payment locally via approves or denies the refund request. System Indicia, Except for PC Postage a no-fee postal money order. d. The request must include the items Indicia (2) If the total face value is more than bearing the unused postage, sorted by Unused, dated postage meter indicia $350, the amount refunded is reduced meter used and then by postage value are considered for refund only if by a figure representing $35 per hour, or shown in the indicia. The items must be complete, legible, and valid. PC Postage fraction thereof, for the actual hours to properly faced and packaged in groups indicia refunds are processed under 3.3. process the refund, with a minimum of 100 identical items, when quantities All other metered postage refund charge of $35. The postmaster will allow, and must meet the requirements requests must be submitted as follows: submit the approved Form 3533 to the of 3.2.d through 3.2.g. a. The licensee must submit the USPS Imaging and Scanning Center for e. The request must be submitted request. The refund request must payment processing through the within 60 days of the date the mail was include proof that the person or entity Accounting Service Center. metered. Supporting documentation requesting the refund is the licensee for [Renumber current 3.3 and 3.4 as new must be submitted to validate the date. the postage meter that printed the 3.5 and 3.6, respectively. Add new 3.3 Examples of supporting documentation indicia. Acceptable proof includes a and 3.4 to read as follows:] include the job order from the customer, copy of the lease, rental agreement, or 3.3 Unused, Dated PC Postage Indicia production records, the USPS contract. qualification report, spoilage report, and b. The licensee must submit the Unused, dated PC Postage indicia are reorders created report, as well as request, along with the items bearing the considered for refund only if complete, customer billing records, postage unused postage, to the licensing Post legible, and valid. The refund request statements, and a sample mailpiece. Office. The items must be sorted by must be submitted as follows: f. The refund request must be meter used and then by postage value a. Only the PC Postage licensee may submitted with a properly completed shown in the indicia, and must be request the refund. The licensee must Form 3533 (see I021). All identifying properly faced and packaged in groups submit the request, along with the items information and all sections related to of 100 identical items when quantities bearing the unused postage, to the the refund requested must be allow. The request is processed by the system provider. The request is completed. When more than one meter USPS. The postmaster approves or processed by the provider, not the was used to prepare the mailing, a denies the refund request. USPS. separate Form 3533 must be completed c. The licensee must submit the b. The licensee must submit the for each. refund request within 60 days of the refund request within 30 days of the (1) If the total face value of the indicia date(s) shown in the indicia. date(s) shown in the indicia. for a single mailing submitted for refund d. When the unused metered postage c. The refund request must be is $350 or less, the amount refunded is is affixed to a mailpiece, the refund submitted as required by 3.2.d through 90% of the face value. USPS may request must be submitted with the 3.2.g. process the refund payment locally via entire envelope or wrapper. The unused d. The provider may, at its discretion, a no-fee postal money order. metered postage must not be removed charge for processing a refund request. (2) If the total face value of the indicia from the mailpiece once applied. for a single mailing submitted for refund e. Indicia printed on labels or tapes 3.4 Undated Metered Postage is more than $350, the amount refunded not stuck to wrappers or envelopes must Unused, undated postage evidencing is reduced by a figure representing $35 be submitted loose and must not be system indicia are considered for refund per hour, or fraction thereof, for the stapled together or attached to any only if complete, legible, and valid. The actual hours to process the refund, with
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a minimum charge of $35. The MBME format with a generic customer saturation mail to rural route addresses. will submit the approved Form 3533 to reference and a specific delivery This is affirmed. the USPS Imaging and Scanning Center address, and an exceptional address For the reasons presented in the for payment processing through the format with traditional addressing proposed rule and those noted above, Accounting Service Center. elements and a current resident the Postal Service adopts the following alternative to provide for delivery to the 3.5 Ineligible Metered Postage Items changes to the Domestic Mail Manual, address even if the specific addressee is which is incorporated by reference in The following metered postage items no longer at the address. the Code of Federal Regulations. See 39 are ineligible for refunds: Restrictions on the type of mail for CFR 111. * * * * * which these formats may be used were List of Subjects in 39 CFR Part 111 [Revise text of renumbered item d to more stringent for the exceptional read as follows:] address format than for the simplified or Administrative practice and d. Indicia lacking identification of the occupant address formats, although the procedure, Postal Service. licensing Post Office, or other required same complications (such as information. accountable mail being addressed to a PART 111—[AMENDED] generic addressee) could arise for mail * * * * * ■ We will publish an appropriate addressed using any of the three 1. The authority citation for 39 CFR amendment to 39 CFR 111 to reflect alternative addressing formats. part 111 continues to read as follows: these changes. New section A020.1.0 is added to the Authority: 5 U.S.C. 552(a); 39 U.S.C. 101, DMM to standardize the types of mail 401, 403, 404, 3001–3011, 3201–3219, 3403– Neva Watson, that may be mailed with any alternative 3406, 3621, 3626, 5001. Attorney, Legislative. addressing format. A020.1.2 extends the ■ [FR Doc. 04–5567 Filed 3–10–04; 8:45 am] 2. Amend the following sections of the current prohibitions for combining Domestic Mail Manual as set forth below: BILLING CODE 7710–12–P exceptional address mail with certain categories of mail and services to all Domestic Mail Manual (DMM) types of alternatively addressed mail. A—ADDRESSING POSTAL SERVICE Since each type of alternative address A000 Basic Addressing 39 CFR Part 111 provides for a nonspecific addressee name, the same restrictions currently * * * * * Alternative Addressing Formats placed only on mail with the A020 Alternative Addressing Formats exceptional address format are extended AGENCY: Postal Service. to any mail with an alternative address Summary ACTION: Final rule. format. [Revise text to read as follows:] A020.1.3 explains treatment of all SUMMARY: A020 specifies the conditions for use This final rule revises undeliverable mail having alternative Domestic Mail Manual (DMMTM) A020 and treatment of mail bearing addresses. A qualifying phrase (‘‘related alternative addressing formats. These to standardize when alternative solely to the address’’) is added after addressing formats may be used and to formats are the simplified address ‘‘undeliverable for another reason,’’ format (i.e., ‘‘Postal Customer’’ in lieu of clarify the differences between the since there are reasons indicated in various formats. In addition, postage specific name and address); the Exhibit F010.4.1 that have to do with occupant address format (i.e., payment options for use on mailpieces the name (e.g., ‘‘Attempted-Not Known’’ with simplified addresses are specified, ‘‘Occupant’’ in lieu of specific name, and ‘‘Deceased’’) that are not valid followed by specific address); and the prohibiting the use of uncanceled reasons to return this type of mail. stamps, to enable efficient handling and exceptional address format (i.e., ‘‘Jane A020.1.3 expands the treatment of Doe or Current Occupant,’’ followed by processing of this mail. Corresponding undeliverable mail to include sections of DMM E050 and F010 also are specific address). undeliverable mail with any alternative [Renumber current 1.0 through 3.0 as revised. address format. EFFECTIVE DATE: April 1, 2004. new 2.0 through 4.0. Add new 1.0 to A020.2.1 explains the use of the term read as follows:] FOR FURTHER INFORMATION CONTACT: Bill ‘‘Rural Route Boxholder’’ as compared Chatfield, with ‘‘Postal Customer’’. 1.0 General Use and Treatment [email protected] or 703– Under A020.2.4, regarding postage 1.1 Use 292–3964. payment, the rewording prohibits the SUPPLEMENTARY INFORMATION: In a use of uncanceled stamps on simplified Alternative addressing formats may be proposed rule published in the Federal address mail. Cancellation would used as described in 2.0 through 4.0. Register on May 30, 2003 (68 FR 32448– require taking apart the packaging and 1.2 Prohibited Use 32450), the Postal Service presented for repackaging the mail, which is public comment revised DMM language inefficient. Alternative addressing formats may that would clarify the mailing standards DMM F010.4.0 and 5.0 amend the not be used on: defining the use of alternative limitations on using mail with a. Express Mail pieces. addressing formats. Three types of alternative address formats as noted in b. Mail with any special service under alternative addressing formats may be A020.1.2. S900. used in lieu of the typical addressing c. Mail with any ancillary service format (i.e., addressee name, address, Comments endorsement under F010. city, state, and ZIP Code). These The Postal Service received one d. Periodicals intended to count as alternative addressing formats include a comment to its proposed rule. The subscriber or requester copies to meet simplified address format (such as commenter was a newspaper publisher the applicable circulation standards. ‘‘Postal Customer’’) with no actual who wanted to verify that simplified e. Mail addressed to an overseas delivery address, an occupant address addresses were still allowed on military post office under A010.6.0.
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1.3 Treatment possession listed in G010. The these cases, complete distribution is Mail with an occupant or an requirement for distribution to each stop made to the portion of the route within exceptional address format is delivered or Post Office boxholder may be a single congressional district. as addressed and is not forwarded. Such modified for congressional mail under * * * * * E050. The following also applies: mail is treated as undeliverable only F FORWARDING AND RELATED when the address is incorrect or * * * * * SERVICES incomplete or when the mail cannot be 2.4 Postage delivered for another reason related F000 Basic Services solely to the address (e.g., a vacant [Revise text of renumbered 2.4 to read F010 Basic Information building), as shown in Exhibit F010.4.1. as follows:] * * * * * Periodicals publishers are notified only Postage must be paid with permit when mailpieces with the occupant or imprint, meter indicia, precanceled 4.0 Basic Treatment stamps, or other authorized methods not exceptional address formats are * * * * * undeliverable for solely address-related requiring cancellation, according to the reasons. Mail with a simplified address standards for the class of mail. Exhibit 4.1 USPS Endorsements for format is distributed to all deliveries on * * * * * Mail Undeliverable as Addressed a route or to Post Office boxholders. [Delete renumbered 2.6, 3.2, 4.2, and * * * * * Undeliverable mail with any alternative 4.4. Renumber current 4.3 as new 4.2.] [Revise the footnote to read as addressing format is disposed of as * * * * * follows:] waste under F010.8.1. *Alternative addressing formats may E ELIGIBILITY not be used on the following: Express 2.0 Simplified Address E000 Special Eligibility Standards Mail pieces; mail with any special 2.1 Use-Rural and Highway Contract * * * * * service; mail sent with any ancillary Routes, PO Boxholders service endorsement; or mail sent to any [Revise text of renumbered 2.1 to read E050 Official Mail (Franked) overseas military post office. When an as follows:] * * * * * alternative addressing format is used on The simplified address format (i.e., Periodicals pieces, the publisher is 2.0 Addressing ‘‘Postal Customer’’) may be used on mail notified of nondelivery only for those only when complete distribution * * * * * reasons marked with an asterisk (*). * * * * * (except as provided for congressional 2.2 Alternative Addressing mail under E050) is made to each family [Revise text of 2.2 to read as follows:] 5.0 Class Treatment for Ancillary or boxholder on a rural or highway Services contract route at any Post Office and/or Mail sent under the franking privilege to all Post Office boxholders at a Post of a member of or member-elect to 5.1 First-Class Mail and Priority Mail Office without city carrier service. The Congress or a delegate, delegate-elect, * * * * * Post Office name and state may be resident commissioner, or resident [Revise item b to read as follows:] added after the simplified address. The commissioner-elect to the U.S. House of b. Alternative addressing formats word ‘‘Local,’’ instead of the Post Office Representatives may be addressed under under A020 may not be used on mail name and state, is optional. Also, a more the alternative addressing formats in 2.0 with any ancillary service endorsement specific address may be used, such as through 4.0 for delivery to customers or mail with any special service. the following options: within the congressional district, state, Forwarding service is not provided for a. ‘‘Rural Route Boxholder’’ for mail or area that he or she represents. A such mail. Undeliverable First-Class intended to all boxholders on a rural member of the House of Representatives Mail pieces with any alternative route. may not, under the franking privilege, addressing format are returned with the b. ‘‘Highway Contract Route use the alternative addressing formats to reason for nondelivery attached only if Boxholder’’ for mail intended to all send mail outside the congressional the address is incorrect or incomplete or boxholders on a highway contract route. district that he or she represents. Any the mail is undeliverable for another c. ‘‘Post Office Boxholder’’ for mail representative at large may send franked reason as shown in Exhibit 4.1. intended to all Post Office boxholders. mail with the simplified address format * * * * * to Postal Service customers within the 2.2 Use—City Routes, P.O. Boxholders entire state that he or she represents. 5.2 Periodicals [Revise introductory text of * * * * * * * * * * renumbered 2.2 to read as follows:] [Revise item b to read as follows:] When distribution is to be made to 2.4. Delivery b. Publications with an alternative each active possible delivery on city [Revise text of 2.4 to read as follows:] addressing format under A020 are carrier routes or to each Post Office Mail with a simplified address format delivered to the address when possible. boxholder at a Post Office with city is delivered within the district, state, or Forwarding service is not provided for carrier service, the addressee’s name; area to any of the following: such mail. Periodicals publishers are mailing address; and city, state, and ZIP a. Each boxholder or family on a rural notified only when mailpieces with the Code may be omitted from the address or highway contract route. occupant or exceptional address formats only on pieces mailed as official matter b. Each Post Office boxholder. are undeliverable for solely address- by agencies of the federal government c. Each active possible delivery on related reasons. (including mail with the congressional city carrier routes. * * * * * frank prepared under E050); any state, d. For deliveries under 2.4a and 2.4c, county, or municipal government; and partial distribution of simplified address Neva R. Watson, the governments of the District of mailings is permitted only when the Attorney, Legislative. Columbia, the Commonwealth of Puerto carrier’s delivery territory crosses [FR Doc. 04–5566 Filed 3–10–04; 8:45 am] Rico, and any U.S. territory or congressional district boundaries. In BILLING CODE 7710–12–P
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POSTAL SERVICE originally assigned to the discontinued district manager, Customer Service and post office. Sales, with written instructions to give 39 CFR Part 241 * * * * * additional consideration to matters in (d) * * * the record, or to obtain additional Discontinuance of Post Offices (4) Record. The district manager, information. Such instructions must be AGENCY: Postal Service. Customer Service and Sales, must keep placed in the record. (5) Public file. Copies of each Final ACTION: Final rule. as part of the record for his or her consideration and for review by the vice Determination and each disapproval of SUMMARY: This final rule amends the president, Delivery and Retail, all the a proposal by the vice president, regulations for the establishment, documentation gathered about the Delivery and Retail, must be placed on classification, and discontinuance of proposed change. file in the Postal Service Headquarters Post OfficesTM. * * * * * library. DATES: The rule is effective March 11, (e) * * * (g) * * * 2004. (2) * * * (1) * * * (ii) * * * (i) Provide notice of the Final FOR FURTHER INFORMATION CONTACT: Fred (A) Forward the revised proposal and Determination by posting a copy Hintenach, manager of Customer the entire record to the vice president, prominently in the affected post office Service Operations, at (202) 268–5045, Delivery and Retail. or offices. The date of posting must be or by fax at (202) 268–5102. * * * * * noted on the first page of the posted SUPPLEMENTARY INFORMATION: The copy as follows: ‘‘Date of posting:’’ The (f) * * * United States Postal Service is (1) In general. The vice president, district manager, Customer Service and publishing amendments to 39 CFR Part Delivery and Retail, or a designee must Sales, must notify the vice president, 241.3, specifically related to the review the proposal of the district Delivery and Retail, of the date of discontinuance of Post Offices to manager, Customer Service and Sales. posting. incorporate regulation changes This review and the decision on the * * * * * TM concerning ZIP Code retention at proposal must be based on and (2) Implementation of determinations discontinued offices, as well as the supported by the record developed by not appealed. If no appeal is filed approval authority related to final the district manager, Customer Service pursuant to 39 U.S.C. 404(b)(5), the actions on discontinuances. and Sales. The vice president, Delivery official closing date of the office must be List of Subjects in 39 CFR Part 241 and Retail, can instruct the district published in the Postal Bulletin, manager to provide more information to effective the first Saturday 90 days after Postal Service. supplement the record. Each instruction the Final Determination was posted. A PART 241—ESTABLISHMENT and the response must be added to the district manager, Customer Service and CLARIFICATION AND record. The decision on the proposal of Sales, may request a different date for DISCONTINUANCE the district manager, which must also be official discontinuance in the Post added to the record, may approve or Office Change Announcement ■ 1. The authority citation for 39 CFR disapprove the proposal, or return it for document submitted to the vice Part 241 continues to read as follows: further action as set forth in this president, Delivery and Retail. However, Authority: 39 U.S.C. 401, 404. paragraph (f). the post office may not be discontinued (2) Approval. The vice president, sooner than 60 days after the posting of § 241.3 [Amended] Delivery and Retail or a designee may the notice required by paragraph (g)(1) ■ 2. Section 241.3 is amended by approve the proposal of the district of this section. revising paragraphs (b)(2) introductory manager, Customer Service and Sales, (3) * * * (i) Implementation of text and (b)(2)(i), (d)(4) introductory text, with or without further revisions. If discontinuance. If an appeal is filed, (e)(2)(ii)(A), (f)(1), (f)(2) introductory approved, the term ‘‘Final only the vice president, Delivery and text, (f)(3) through (f)(5), (g)(1)(i), (g)(2), Determination’’ is substituted for Retail, may direct a discontinuance (g)(3)(i), (g)(3)(ii) introductory text, and ‘‘Proposal’’ in the title. A copy of the before disposition of the appeal. (g)(4)(ii) to read as follows: Final Determination must be provided However, the post office may not be to the district manager. The Final discontinued sooner than 60 days after § 241.3 Discontinuance of post offices. Determination constitutes the Postal the posting of notice required by * * * * * Service determination for the purposes paragraph (g)(1) of this section. (b) * * * of 39 U.S.C. 404(b). The Final (ii) Display of appeal documents. * * * * * Determination must include the Legal Policy and Ratemaking Law, (2) ZIP Code assignment. The ZIP following notices: Postal Service General Counsel, must Code for each address formerly served * * * * * provide the district manager, Customer from the discontinued post office (3) Disapproval. The vice president, Service and Sales, with copies of all should be kept, wherever practical. In Delivery and Retail, or a designee may pleadings, notices, orders, briefs, and some cases, the ZIP Code originally disapprove the proposal of the district opinions filed in the appeal proceeding. assigned to the discontinued post office manager, Customer Service and Sales, * * * * * may be changed if the responsible and return it and the record to the (4) * * * district manager, Customer Service and manager with written reasons for (ii) Determination returned for further Sales, submits a request with disapproval. The manager must post a consideration. If the Commission justification to his or her vice president, notice in each affected post office that returns the matter for further Area Operations, before the proposal to the proposed closing or consolidation consideration, the vice president, discontinue the post office is posted. has been determined to be unwarranted. Delivery and Retail, must direct that (i) In a consolidation, the ZIP Code for (4) Return for further action. The vice either: the replacement community post office, president, Delivery and Retail, or a (A) Notice be provided under station, or branch is the ZIP Code designee may return the proposal of the paragraph (f)(3) of this section that the
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proposed discontinuance is determined Ponce De Leon Avenue, Hato Rey, CFR part 60, subpart DDDD, establishes not to be warranted or Puerto Rico. emission and operating requirements (B) The matter be returned to an FOR FURTHER INFORMATION CONTACT: Kirk under the authority of the CAA, sections appropriate stage under this section for J. Wieber, Air Programs Branch, 111(d) and 129. These requirements further consideration following such Environmental Protection Agency, must be incorporated into a state plan instructions as the vice president, Region 2 Office, 290 Broadway, 25th that is ‘‘at least as protective’’ as the EG, Delivery and Retail, may provide. Floor, New York, New York 10007– and is Federally enforceable upon Neva R. Watson, 1866, (212) 637–3381 or approval by EPA. The procedures for adoption and submittal of state plans Attorney, Legislative. [email protected]. are codified in 40 CFR part 60, subpart SUPPLEMENTARY INFORMATION: [FR Doc. 04–5402 Filed 3–10–04; 8:45 am] B. BILLING CODE 7710–12–P I. Background II. Puerto Rico’s Submittal Sections 111(d) and 129 of the Clean Air Act (CAA) require states to submit On May 20, 2003, the Puerto Rico ENVIRONMENTAL PROTECTION plans to control certain pollutants Environmental Quality Board (PREQB) AGENCY (designated pollutants) at existing solid submitted to EPA a section 111(d)/129 plan to implement 40 CFR part 60 40 CFR Part 62 waste combustor facilities (designated facilities) whenever standards of subpart DDDD—Emission Guidelines, [Region 2 Docket No. PR11–267c; FRL– performance have been established for existing CISWI units located in the 7634–2] under section 111(b) for new sources of Commonwealth of Puerto Rico. PREQB’s submittal included: enforceable Approval and Promulgation of State the same type, and EPA has established emission guidelines (EG) for such mechanisms; the necessary legal Plans for Designated Facilities; Puerto authority; inventory of CISWI units; Rico existing sources. A designated pollutant is any pollutant for which no air quality emissions inventory; enforceable AGENCY: Environmental Protection criteria have been issued, and which is compliance schedules; testing, Agency. not included on a list published under monitoring, recordkeeping, and reporting requirements; record of public ACTION: Final rule. section 108(a) or section 112(b)(1)(A) of the CAA, but emissions of which are hearing; and a provision for annual state SUMMARY: The Environmental Protection subject to a standard of performance for progress reports. Agency (EPA) is approving the ‘‘State new stationary sources. However, For a detailed description and full Plan’’ submitted by the Commonwealth section 129 of the CAA, also requires evaluation of the Puerto Rico CISWI of Puerto Rico to fulfill the requirements EPA to promulgate the EG for plan that EPA is approving today, the of sections 111(d)/129 of the Clean Air Commercial and Industrial Solid Waste reader is referred to the rulemaking Act for Commercial and Industrial Solid Incineration (CISWI) units that emit a actions (68 FR 62019 and 68 FR 62040) Waste Incineration (CISWI) units. mixture of air pollutants. These published in the Federal Register on Puerto Rico’s State Plan provides for the pollutants include organics (dioxins/ October 31, 2003. implementation and enforcement of the furans), carbon monoxide, metals III. Comments in Response to EPA’s Emissions Guidelines, as promulgated (cadmium, lead, mercury), acid gases Proposal by EPA on December 1, 2000, applicable (hydrogen chloride, sulfur dioxide, and to existing CISWI units for which nitrogen oxides) and particulate matter A. Background Information construction commenced on or before (including opacity). On December 1, On October 31, 2003, EPA announced, November 30, 1999. Specifically, the 2000 (65 FR 75338), EPA promulgated in proposed and direct final rules State Plan that EPA is approving today, CISWI unit new source performance published in the Federal Register (68 establishes emission limits for organics, standards and the EG, 40 CFR part 60, FR 62019 and 68 FR 62040, carbon monoxide, metals, acid gases subparts CCCC and DDDD, respectively. respectively), approval of Puerto Rico’s and particulate matter and compliance The designated facility to which the EG CISWI plan. On November 6, 2003, EPA schedules for the existing CISWI units apply is each existing CISWI unit, as received an adverse comment on the located in the Commonwealth of Puerto defined in subpart DDDD, that direct final rule. EPA had indicated in Rico which will reduce the designated commenced construction on or before its October 31, 2003, direct final rule pollutants. November 30, 1999. that if EPA received adverse comments, DATES: This rule is effective on April 12, Section 111(d) of the CAA requires it would withdraw the direct final rule. 2004. that ‘‘designated’’ pollutants, regulated Consequently, EPA informed the public, ADDRESSES: Copies of the state submittal under standards of performance for new in a removal notice published in the are available at the following addresses stationary sources by section 111(b) of Federal Register (69 FR 2304) on for inspection during normal business the CAA, must also be controlled at January 15, 2004, that EPA received an hours: existing sources in the same source adverse comment and that the direct Environmental Protection Agency, category to a level stipulated in an EG final rule was being removed. EPA did Region 2 Office, Air Programs Branch, document. Section 129 of the CAA not receive any other comments. EPA is 290 Broadway, 25th Floor, New York, specifically addresses solid waste addressing the adverse comment in New York 10007–1866. combustion and emission controls based today’s final rule based upon the Environmental Protection Agency, on what is commonly referred to as proposed action published on October Region 2, Caribbean Environmental ‘‘maximum achievable control 31, 2003. Protection Division, Centro Europa technology’’ (MACT). Section 129 B. Comments Received and EPA’s Building, Suite 417, 1492 Ponce De requires EPA to promulgate a MACT Response Leon Avenue, Stop 22, San Juan, based emission guidelines document for Puerto Rico 00907–4127. CISWI units, and then requires states to EPA received one adverse comment Puerto Rico Environmental Quality develop plans that implement the EG on its August 11, 2003 direct final rule Board, National Plaza Building, 431 requirements. The CISWI EG under 40 to approve Puerto Rico’s CISWI plan
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from a concerned citizen. That comment EPA is approving Puerto Rico’s Plan to relationship or the distribution of power and EPA’s response follows. implement and enforce subpart DDDD, and responsibilities established in the Comment: The PREQB is not as promulgated on December 1, 2000, CAA. This rule also is not subject to effectively managing the air programs in applicable to existing CISWI units that Executive Order 13045 ‘‘Protection of the island. Permits are provided to have commenced construction on or Children from Environmental Health facilities which do not comply with the before November 30, 1999. EPA is also Risks and Safety Risks’’ (62 FR 19885, regulations and new emission standards approving revisions to Rule 102 and April 23, 1997), because it is not go unattended. Many facilities in Puerto Rule 405 of the Puerto Rico Regulations economically significant. Rico are currently discharging more for the Control of Atmospheric In reviewing state plan submissions, than the amount of emissions permitted Pollution, entitled, ‘‘Definitions’’ and and on many occasions without a ‘‘Incineration’’, respectively. EPA’s role is to approve state choices, permit. Approving the CISWI plan will provided that they meet the criteria of simply do nothing for the protection of V. Statutory and Executive Order the CAA. In this context, in the absence human health or the environment of Reviews of a prior existing requirement for the Puerto Rico. Under Executive Order 12866 (58 FR state to use voluntary consensus Response: It should be noted that the 51735, October 4, 1993), this action is standards (VCS), EPA has no authority commentor did not provide any not a ‘‘significant regulatory action’’ and to disapprove a state plan submission documentation or justification in therefore is not subject to review by the for failure to use VCS. It would thus be support of its allegations. In addition, Office of Management and Budget. For inconsistent with applicable law for the comment does not directly address this reason, this action is also not EPA, when it reviews a SIP submission, Puerto Rico’s CISWI plan, but rather subject to Executive Order 13211, to use VCS in place of a state plan addresses its permitting program. 40 ‘‘Actions Concerning Regulations That submission that otherwise satisfies the CFR 60.26 requires that a section 111(d) Significantly Affect Energy Supply, provisions of the CAA. Thus, the plan demonstrate that the state has the Distribution, or Use’’ (66 FR 28355, May requirements of section 12(d) of the necessary legal authority to adopt and 22, 2001). This action merely approves National Technology Transfer and implement the plan. In order to make state law as meeting Federal Advancement Act of 1995 (15 U.S.C. this demonstration, the plan must show requirements and imposes no additional 272 note) do not apply. This rule does that the state has the legal authority to requirements beyond those imposed by not impose an information collection adopt emission standards and state law. Accordingly, the burden under the provisions of the compliance schedules for the designated Administrator certifies that this rule Paperwork Reduction Act of 1995 (44 facilities; enforce the applicable laws, will not have a significant economic U.S.C. 3501 et seq.). regulations, emission standards and impact on a substantial number of small compliance schedules, including the entities under the Regulatory Flexibility The Congressional Review Act, 5 ability to obtain injunctive relief; the Act (5 U.S.C. 601 et seq.). Because this U.S.C. 801 et seq., as added by the Small authority to obtain information from the rule approves pre-existing requirements Business Regulatory Enforcement designated facilities in order to under state law and does not impose Fairness Act of 1996, generally provides determine compliance, including the any additional enforceable duty beyond that before a rule may take effect, the authority to require recordkeeping from that required by state law, it does not agency promulgating the rule must the facilities, to make inspections and to contain any unfunded mandate or submit a rule report, which includes a conduct tests at the facilities; the significantly or uniquely affect small copy of the rule, to each House of the authority to require designated facilities governments, as described in the Congress and to the Comptroller General to install, maintain and use emission Unfunded Mandates Reform Act of 1995 of the United States. EPA will submit a monitoring devices; the authority to (Pub. L. 104–4). report containing this rule and other require periodic reporting to the state on This rule also does not have tribal required information to the U.S. Senate, the nature and amounts of emissions implications because it will not have a the U.S. House of Representatives, and from the facility; and the authority for substantial direct effect on one or more the Comptroller General of the United the state to make such emissions data Indian tribes, on the relationship States prior to publication of the rule in available to the public. Puerto Rico has between the Federal Government and the Federal Register. A major rule demonstrated all these elements exist Indian tribes, or on the distribution of cannot take effect until 60 days after it within its enabling legislation and power and responsibilities between the is published in the Federal Register. regulations to the extent that EPA has Federal Government and Indian tribes, This action is not a ‘‘major rule’’ as determined the Puerto Rico CISWI plan as specified by Executive Order 13175 defined by 5 U.S.C. section 804(2). (65 FR 67249, November 9, 2000). to be approvable. Under section 307(b)(1) of the CAA, In addition, upon the effective date of Puerto Rico’s State plan applies to all petitions for judicial review of this EPA’s final approval of the Puerto Rico affected sources regardless of whether it action must be filed in the United States CISWI plan, the requirements of Puerto has been identified in its plan. Rico’s plan become federally Therefore, EPA has concluded that this Court of Appeals for the appropriate enforceable. This enables EPA to take its rulemaking action does not have circuit by May 10, 2004. Filing a own enforcement actions against federalism implications nor does it have petition for reconsideration by the facilities that may not comply with the substantial direct effects on the States, Administrator of this final rule does not approved CISWI requirements. on the relationship between the national affect the finality of this rule for the government and the States, or on the purposes of judicial review nor does it IV. Conclusion distribution of power and extend the time within which a petition EPA has evaluated the CISWI plan responsibilities among the various for judicial review may be filed, and submitted by Puerto Rico for levels of government, as specified in shall not postpone the effectiveness of consistency with the CAA, EPA Executive Order 13132 (64 FR 43255, such rule or action. This action may not emission guidelines and policy. EPA August 10, 1999). This action merely be challenged later in proceedings to has determined that Puerto Rico’s Plan approves a state rule implementing a enforce its requirements. (See section meets all requirements and, therefore, Federal standard, and does not alter the 307(b)(2).)
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List of Subjects in 40 CFR Part 62 GENERAL SERVICES comment. Therefore, the Regulatory ADMINISTRATION Flexibility Act, 5 U.S.C. 601, et seq., Environmental protection, Air does not apply. pollution control, Acid gases, Carbon 41 CFR Part 102–39 monoxide, Commercial and industrial D. Paperwork Reduction Act [FMR Amendment 2004–1; FMR Case 2003– solid waste, Intergovernmental 102–2] The Paperwork Reduction Act does relations, Organics, Particulate matter, not apply because the changes to the Reporting and recordkeeping RIN 3090–AH92 FMR do not impose information collection requirements that require the requirements. Federal Management Regulation; approval of the Office of Management Dated: February 27, 2004. Replacement of Personal Property Pursuant to the Exchange/Sale and Budget under 44 U.S.C. 3501, et Kathleen C. Callahan, seq. Acting Regional Administrator, Region 2. Authority E. Small Business Regulatory AGENCY: Office of Governmentwide ■ Part 62, chapter I, title 40 of the Code Enforcement Fairness Act Policy, General Services Administration of Federal Regulations is amended as (GSA). This final rule is exempt from follows: ACTION: Final rule. Congressional review under 5 U.S.C. PART 62—[AMENDED] 801 since it relates solely to agency SUMMARY: The General Services management and personnel. Administration (GSA) revised the ■ 1. The authority citation for part 62 Federal Property Management List of Subjects in 41 CFR Part 102–39 continues to read as follows: Regulations (FPMR) by moving coverage Government property management. Authority: 42 U.S.C. 7401–7671q. related to the sale of personal property Dated: January 23, 2004. to the Federal Management Regulation Subpart BBB—Puerto Rico (FMR). Because of the transfer of this Stephen A. Perry, coverage as well as the codification of Administrator of General Services. ■ 2. Subpart BBB is amended by adding Title 40 of the United States Code into ■ For the reasons set forth in the a new undesignated center heading and positive law, several cross-references are preamble, GSA amends 41 CFR part 102– § 62.13108 to read as follows: no longer valid in existing FMR parts. 39 as set forth below: This final rule amends the FMR by Control of Air Emissions of Designated updating certain cross-references in 41 PART 102–39—REPLACEMENT OF Pollutants From Existing Commercial CFR part 102–39 and providing the new PERSONAL PROPERTY PURSUANT and Industrial Solid Waste Incineration statutory citations to Title 40 of the TO THE EXCHANGE/SALE AUTHORITY Units United States Code. ■ 1. The authority citation for 41 CFR DATES: Effective Date: March 11, 2004. § 62.13108 Identification of plan. part 102–39 continues to read as follows: FOR FURTHER INFORMATION CONTACT: The (a) The Puerto Rico Environmental Regulatory Secretariat, Room 4035, GS Authority: 40 U.S.C. 503 and 121(c). Quality Board submitted to the Building, Washington, DC, 20405, (202) § 102–39.10 [Amended] Environmental Protection Agency on 208–7312, for information pertaining to ■ 2. Amend § 102–39.10 by removing May 20, 2003, a ‘‘State Plan’’ for status or publication schedules. For ‘‘101–37’’ from the last sentence and implementation and enforcement of 40 clarification of content, contact Mr. Rick adding ‘‘102–33’’ in its place. CFR part 60, subpart DDDD, Emission Bender, Office of Governmentwide ■ Guidelines and Compliance Times for Policy, Personal Property Management 3. Amend § 102–39.30 by revising the Commercial and Industrial Solid Waste Policy, at (202) 501–3448. Please cite second sentence to read as follows: Incineration Units. The State Plan FMR case 2003–102–2, Amendment § 102–39.30 When should I not use the includes revisions to Rule 102 and Rule 2004–1. exchange/sale authority? 405 of the Puerto Rico Regulations for SUPPLEMENTARY INFORMATION: * * * You must either abandon or the Control of Atmospheric Pollution, A. Background destroy such property, or declare the entitled, ‘‘Definitions’’ and GSA is in the process of revising the property excess, in accordance with part ‘‘Incineration’’, respectively. Revised FPMR and transferring most of the 102–36 of this chapter. * * * Rules 102 and 405 were adopted on content into a new, streamlined FMR. § 102–39.40 [Amended] June 4, 2003 and effective on July 4, Several sections in FMR part 102–39 (41 2003. ■ 4. Amend § 102–39.40 in the second CFR part 102–39) contain references to sentence of paragraph (b) by removing (b) Identification of sources: The plan FPMR sections that no longer exist. This ‘‘§ 101–45.304–12’’ and adding ‘‘§ 102– applies to all applicable existing final rule amends the FMR by providing 38.125’’ in its place. Commercial and Industrial Solid Waste references to existing FMR sections Incineration Units for which concerning the sale of personal § 102–39.45 [Amended] construction commenced on or before property. ■ 5. Amend § 102–39.45 in paragraph (i) November 30, 1999. B. Executive Order 12866 by removing ‘‘§ 101-37.610’’ and adding [FR Doc. 04–5367 Filed 3–10–04; 8:45 am] GSA has determined that this final ‘‘§ 102–33.370’’ in its place. ■ BILLING CODE 6560–50–P rule is not a significant regulatory action 6. Amend § 102–39.65 in the for the purposes of Executive Order introductory text of paragraph (a) by 12866 of September 30, 1993. revising the first sentence; and in paragraph (b) by removing ‘‘§ 101– C. Regulatory Flexibility Act 45.304–2(b)’’ and adding §§ 102–38.120 This final rule is not required to be and 102–38.125’’ in its place. The published in the Federal Register for revised text reads as follows:
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§ 102–39.65 What are the sales methods? § 73.202 [Amended] Daniel Waldeck, Pacific Fishery (a) You must use the methods, terms, ■ 2. Section 73.202(b), the Table of FM Management Council, 7700 NE and conditions of sale, and the forms Allotments under Nevada, is amended Ambassador Place, Suite 200, Portland, prescribed in part 102–38 of this title, in by adding Channel 300C at Laughlin. Oregon, 97220–1384, the sale of property being replaced, [email protected], (503) 820– except for the provisions of §§ 102– Dated: February 12, 2004. 2280. This final rule corresponds to the 38.100 through 102–38.115 of this title Federal Communications Commission. High Seas Pelagic Longline Alternative regarding negotiated sales. * * * John A. Karousos, 3 in the Council EIS, RIR, and IRFA. * * * * * Assistant Chief, Audio Division, Media The final regulatory flexibility analysis [FR Doc. 04–5409 Filed 3–10–04; 8:45 am] Bureau. (FRFA)is available on the internet at BILLING CODE 6820–14–P [FR Doc. 04–5416 Filed 3–10–04; 8:45 am] http://swr.ucsd.edu/ or may be obtained BILLING CODE 6712–01–P from Tim Price, NMFS, 501 West Ocean Boulevard, Suite 4200, Long Beach, FEDERAL COMMUNICATIONS California, 90802–4213, COMMISSION DEPARTMENT OF COMMERCE [email protected], (562) 980–4029. FOR FURTHER INFORMATION CONTACT: Tim 47 CFR Part 73 National Oceanic and Atmospheric Price, NMFS, Southwest Region, Administration [MM Docket No. 87–97; RM–5598] Protected Resources Division, 562–980– 4029. Radio Broadcasting Services; 50 CFR Part 223 SUPPLEMENTARY INFORMATION: Laughlin, NV [Docket No. 031202301–4067–02; Additional information about the status I.D.111403C] of sea turtles and the West Coast-based AGENCY: Federal Communications pelagic longline fishery can be found in RIN 0648–AR53 Commission. the proposed rule published on ACTION: Correcting amendment. Taking of Threatened or Endangered December 17, 2003 (68 FR 70219). All SUMMARY: This document contains a Species Incidental to Commercial species of sea turtles that are known to correction to Section 73.202(b), FM Fishing Operations interact with U.S. longline vessels in the Table of Allotments, under Nevada for Pacific Ocean are listed as either AGENCY: National Marine Fisheries the community of Laughlin. endangered or threatened under the Service (NMFS), National Oceanic and ESA. The incidental take of endangered DATES: Effective March 11, 2004. Atmospheric Administration (NOAA), species may be authorized only by an FOR FURTHER INFORMATION CONTACT: Commerce. incidental take statement issued under Victoria McCauley, Media Bureau (202) ACTION: Final rule. section 7 of the ESA or an incidental 418–2180. take permit issued under section 10 of SUPPLEMENTARY INFORMATION: In 1987, SUMMARY: NMFS is issuing a final rule the ESA. The incidental take of the Commission allotted Channel 300C1 to prohibit shallow longline sets of the threatened species may be authorized to Laughlin, Nevada. See 52 FR 38766 type normally targeting swordfish on only by an incidental take statement in (October 19, 1987). The channel is not the high seas in the Pacific Ocean east ° a biological opinion issued pursuant to currently listed in the FM Table of of 150 W. long. by vessels managed section 7 of the ESA, an incidental take Allotments, Section 73.202(b) under under the Fishery Management Plan for permit issued pursuant to section 10 of Nevada for the community of Laughlin. U.S. West Coast Fisheries for Highly the ESA, or regulations under section Station KVGS(FM) obtained a license for Migratory Species (FMP). This action is 4(d) of the ESA. this channel on May 13, 1992. See BLH– intended to protect endangered and A number of longline vessels targeting 19910903KD. Station KVGS(FM) threatened sea turtles from the adverse swordfish unload their catch and re- currently operates on Channel 300C at impacts of shallow longline fishing by provision in California ports. Laughlin, Nevada because the station U.S. longline fishing vessels in the Participants in the West Coast-based was granted a license to specify Pacific Ocean and operating out of the pelagic longline fishery often fish more operation on Channel 300C in lieu of west coast. This rule supplements the than 1,000 nautical miles (1,900 km) Channel 300C1 at Laughlin, Nevada on regulations that implement the FMP that offshore and are generally prohibited by June 20, 2001. See BLH–20010327ABN. prohibit shallow longline sets on the state regulations from fishing within 200 Need for Correction high seas in the Pacific Ocean west of nautical miles (370 km) of the West 150° W. long. by vessels managed under The Code of Federal Regulations must Coast. From October 2001 through that FMP. The FMP was partially January 31, 2004, 409 sets were be corrected to include Channel 300C at approved by NMFS on February 4, 2004. Laughlin, Nevada. observed on 20 trips, documenting a Together, these two regulations are total of 46 sea turtle interactions, List of Subjects in 47 CFR Part 73 expected to conserve leatherback and consisting of 3 leatherback sea turtles, loggerhead sea turtles as required under Radio, Radio broadcasting. 42 loggerhead sea turtles, and 1 olive the Endangered Species Act (ESA). ridley sea turtle. All of the observed sea ■ Accordingly, 47 CFR part 73 is DATES: This final rule is effective April turtles were released alive except two corrected by making the following 12, 2004. recent loggerhead sea turtles which correcting amendment: ADDRESSES: Copies of the FMP, which were dead. PART 73—RADIO BROADCAST includes an environmental impact On October 31, 2003, the Pacific SERVICES statement (EIS) accompanied by a Fishery Management Council (Council) regulatory impact review (RIR) and an submitted the FMP to NMFS for review. ■ 1. The authority citation for Part 73 initial regulatory flexibility analysis The FMP includes management continues to read as follows: (IRFA) are available on the internet at measures for the West Coast-based Authority: 47 U.S.C. 154, 303, 334, and http://www.pcouncil.org/hms/ pelagic longline fishery that prohibits 336. hmsfmp.html or may be obtained from shallow longline sets of the type
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normally used to target swordfish on the from making shallow sets and targeting magazine which states that 35,000 high seas in the Pacific Ocean west of swordfish, the foreign, unregulated, fleet turtles are illegally killed each year in 150° W. long. by vessels managed under will shift fishing effort to the waters northwestern Mexico. The commenter the FMP. In addition, to conserve sea vacated by the U.S. fleet. The shift in felt that when compared to the apparent turtles, the FMP requires West Coast- effort to foreign fleets may result in illegal harvest in Mexico, the longline based pelagic longline vessels to have more sea turtles interactions and fishery fishing out of California is not on board and to use dip nets, line mortality, causing more harm to sea hurting the sea turtle population. cutters, and wire or bolt cutters capable turtle populations. Response: NMFS recognizes that other of cutting through the vessel’s hooks to Response: Although there is a human activities and natural release sea turtles with the least harm possibility that fishing effort may shift phenomena pose a serious threat to the possible to the sea turtles. On February to foreign nations, at this time, there are survival and recovery of threatened and 4, 2004, NMFS partially approved the no data to support this claim. Moreover, endangered species. We recognize that FMP. NMFS disapproved the provision there are no data that show that longline we will not be able to recover of the FMP that would allow West fishing by foreign vessels have higher threatened and endangered species Coast-based pelagic longline vessels to sea turtle interaction rates. without addressing the full range of make shallow sets east of the 150° W. Comment 3: One commenter human activities and natural Long.. The disapproval of that provision indicated that a prohibition on shallow phenomena that have caused these was based, in part, on the biological sets was not necessary because West species to decline or could cause these opinion, dated February 4, 2004, which Coast-based longline vessel operators species to become extinct in the concluded that allowing shallow set minimize their impact to sea turtles by foreseeable future. Recovering fishing east of 150° W. Long. and north bringing aboard any hooked sea turtles threatened and endangered sea turtles, of the equator (0°) was likely to using a dip net and removing the hook as with other imperilled marine species, jeopardize loggerhead sea turtles. before the animal is released alive back will require an international, into the ocean. In addition, ARC cooperative effort that addresses the full Response to Comments dehookers for deep hooked turtles are suite of threats to those species. NMFS published a proposed rule on being placed aboard all longline boats Nevertheless, NMFS’ task is to identify December 17, 2003 (68 FR 70219). fishing out of California. the direct and indirect effects of the NMFS received 127 comments on the Response: NMFS agrees that use of a FMP fisheries to determine if the proposed rule. There were 124 dip net to bring a hooked sea turtle proposed management regime is likely comments in support of the proposed aboard a vessel and removing the hook to contribute to the endangerment of rule and 3 comments opposed. Most of increases the likelihood of its survival threatened and endangered species by the comments received in favor of the when the animal is released. Under the appreciably reducing their likelihood of proposed rule were emails sent by fax FMP, vessel operators would be both surviving and recovering in the containing identical or similar language. required to comply with sea turtle wild. NMFS considered the direct NMFS reviewed and considered all handling, resuscitation, and release harvest of sea turtles in Mexico as part comments received in the development requirements, which include the use of of the environmental baseline of the of this rule. dip nets and the removal of hooks. biological opinion and concluded that Comment 1: Longline vessels NMFS considered these factors as part the FMP fishery will jeopardize the departing from California and targeting of the proposed action in the ESA continued existence of loggerhead sea swordfish on the high seas are not a section 7 consultation and determined turtles. problem for sea turtles because the that sea turtle handling, alone, would Comment 6: California longliners fishery is very small, consisting of less not obviate the need to prohibit fishing have been working on implementing a than 25 vessels and the fishermen attach shallow sets. sea turtle recovery program in Mexico. their hooks to leaders that are longer Comment 4: Regardless of whether a If the longline fishery is closed, the than the float lines which allow sea sea turtle has deeply ingested a hook or California longliners will likely end turtles to reach the surface when they has been lightly hooked, there does not their current effort to fund sea turtle are hooked. Moreover, there have been appear to be any difference in their restoration projects in Baja, Mexico. no observed sea turtle mortalities aboard behavior based on animals that were Response: NMFS commends the longline vessels departing from released alive with satellite transmitter efforts of the West Coast-based California and targeting swordfish on tags. longliners to implement a sea turtle the high seas. Response: More recent analyses of recovery program in Mexico. However, Response: Recent observer data satellite telemetry data from transmitters NMFS is required to analyze the effects indicate that there were two incidental deployed by NMFS’ observers were of the West Coast-based longline fishery mortalities of loggerhead sea turtles completed to derive survival and hazard on listed species and cannot rely upon during a fishing trip which departed functions (transmitted tag defects, the potential benefits that are not from California in which the gear battery failure, transmitter detachment, immediately realized from conservation consisted of longer leaders than float turtle death) for lightly- and deeply- efforts such as nesting beach protection lines. These data indicate that hooked loggerheads by modeling time- and educational programs. mortalities do occur on sets in which to-failure of all transmitters using Comment 7: Prohibiting swordfish the leaders are longer than the ball drop. nonparametric statistical modeling. fishing will severely impact the annual Although there may only be a few active Based on these analyses, the data income of the longline fishermen off the West Coast-based longline vessels, indicate that there are significant California coast. NMFS estimates that if one million differences between the survival Response: According to the analyses hooks are set by the fleet, there may be functions for lightly- and deeply-hooked submitted by the Council, average 23 to 57 leatherback, 126 to 195 loggerheads within 90 days after release annual profits of the West Coast-based loggerhead, and 1 to 11 olive ridley sea but no difference between survival longline fishery targeting swordfish is turtles captured incidentally. functions after this time. estimated at $6.7 million. Assuming all Comment 2: If longline vessels Comment 5: One commenter cited the the vessels ceased fishing, this would be departing from California are prohibited March 2003 National Geographic the economic loss to the fishery. NMFS
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recognizes that there will be economic Response: NMFS is authorized to requested that NMFS use the results consequences to the regulated industry. promulgate regulations as may be from the post-hooking mortality However, many of the longline vessels appropriate to enforce provisions of the workshop scheduled to convene in have historically fished under the ESA. NMFS is promulgating this rule January. Western Pacific Pelagic fishery after the biological opinion concluded Response: On January 15–16, 2004, a management plan’s limited entry permit that the FMP was likely to jeopardize workshop on marine turtle longline and would likely to return to Hawaii to loggerhead sea turtles without this rule. post-interaction mortality was target tuna or target swordfish under the Comment 11: Data used to assess the convened. Seventeen experts in the area proposed management plan submitted impacts of the West Coast-based of biology, anatomy/physiology, by the Western Pacific Council. longline fishery are not sufficient to veterinary medicine, satellite telemetry Comment 8: NMFS cannot propose to make a decision to prohibit shallow sets and longline gear deployment implement a prohibition on shallow targeting swordfish. participated in the workshop. longline sets for swordfish on the high Response: At the time the Council Consideration of the workshop seas in the Pacific Ocean east of the 150° made its recommendation, there were discussion, along with a comprehensive West Longitude because the Council sufficient data to determine that the review of all of the information rejected this alternative citing fishery was taking numerous sea turtles available on the issue has led to the insufficient evidence to justify a incidental to fishing operations. In modification of the February 2001 prohibition. addition, the Council was aware that criteria. The February 2001 injury Response: Under the Magnuson- NMFS had significant concerns about categories have been expanded to better Stevens Fishery Conservation and the number of sea turtles that were describe the specific nature of the Management Act, NMFS may expected to be captured incidentally to interaction. The February 2001 criteria disapprove or partially approve a plan the continued operation of the West described two categories for mouth if the plan is not consistent with any Coast-based pelagic longline fishery hooking: (1) Hook does not penetrate based on the severe decline and lack of applicable law. Based on the ESA internal mouth structure; and (2) mouth recovery in loggerhead and leatherback section 7 consultation, NMFS hooked (penetrates) or ingested hook. sea turtles populations, and the concluded that the FMP as proposed by The new criteria divides the mouth extensive analyses conducted by the the Council was likely to jeopardize the hooking event into three components to agency on existing threats to these continued existence of loggerhead sea reflect the severity of the injury and to populations. account for the probable improvement turtles. Based on that analysis, NMFS Comment 12: Similarities between the partially disapproved the Council’s in survivorship resulting from removal West Coast-based and the Hawaii-based of gear, where appropriate, for each plan. NMFS is now implementing this pelagic longline fisheries suggest that injury. The three components consist of: final rule pursuant to its authority under there should be similar regulatory (1) hooked in esophagus at or below the the ESA. measures to manage the two fisheries. heart (insertion point of the hook is not Comment 9: NMFS cannot rely on As a result, NMFS should propose visible when viewed through the open either the 2001 or 2002 biological regulations similar to the emergency mouth; (2) hooked in cervical opinions on the Western Pacific Pelagics regulations proposed by the Western esophagus, glottis, jaw joint, soft palate, Fishery Management Plan because of Pacific Fishery Management Council or adnexa (insertion point of the hook the order issued by the United States that would allow swordfish fishing at 75 is visible when viewed through the District Court for the District of percent of historic levels and the use of open mouth); and (3) hooked in lower Columbia states that NMFS cannot circle hooks with mackerel bait in place jaw (not adnexa). The new criteria, also, validly rely on either opinion in of J hooks baited with squid for the West separates external hooking from mouth assisting the effects of a fishery on listed Coast-based longline vessels. hooking, eliminates the ‘‘no injury’’ species or elaborating appropriate Response: The Council is responsible category, and adds a new category for management measures. for providing management and comatose/resuscitated sea turtles. NMFS Response: NMFS consulted separately conservation recommendations that has used these new criteria in the on the FMP and concluded in its address concerns about the effect of the analyses to evaluate the effects of the Febrary 4, 2004, biological opinion that FMP prosecuted off the U.S. West Coast West Coast-based longline fishery on the FMP without this regulation would and on ocean resources caught listed sea turtle populations. likely jeopardize loggerhead sea turtles. incidentally. NMFS anticipates that the Comment 14: One commenter The Court vacated the November 2002 Council will consider alternative proposed that NMFS implement a single biological opinion on the Western management measures similar to those regulation to manage longline fishing in Pacific Pelagics Fishery Management proposed by the Western Pacific the Pacific Ocean under section 11(f) of Plan because NMFS had not treated the Council using the framework the ESA, rather than the Magnuson- plaintiffs (Hawaii Longline Association) procedures in the HMS FMP. NMFS Stevens Fishery Conservation and as applicants in preparation of the will consider any such proposals that Management Act, that would prohibit March 2001 biological opinion, and this the Council submits which might lessen U.S. flagged vessels from engaging in procedural error affected the the burden to fishermen while shallow set swordfish style longline preparation of the November 2002 maintaining adequate protection of sea fishing anywhere in the Pacific, and biological opinion. The Court chose not turtles. NMFS will fully support the likewise would prohibit the landing of to evaluate or rule on whether the data, Council in examination and selection of any longline caught swordfish in any analysis and conclusions in those appropriate protective measures. U.S. port in the Pacific. opinions were correct. Comment 13: One commenter Response: Congress passed the Comment 10: NMFS cannot issue an questioned whether the post-hooking Magnuson-Stevens Fishery anticipatory regulatory proposal such as mortality estimates used to estimate the Conservation and Management Act as proposing to prohibit swordfish sets level of impacts by the fishery are the primary mechanism for managing because this raises ‘‘the specter of a consistent with the best scientific and fisheries of the United States. The foregone conclusion’’ which is commercial data available as required regional fishery management councils impermissable under the ESA. by the ESA. In addition, the commenter are to exercise sound judgment in the
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stewardship of fishery resources Response: NMFS undertook what it vessels. Vessels in the West Coast-based through the preparation, monitoring, determined to be the preferable method pelagic longline fishery fish in the same and revision of such plans under of ensuring the fishery is managed in a manner, and frequently in the same circumstances which will enable the manner that avoids the likelihood of area, as vessels that had been targeting States, the fishing industry, consumer jeopardizing the continued existence of swordfish in the Hawaii-based longline and environmental organizations and Pacific sea turtle populations while fishery. Because of the strong other interested persons to participate providing due process. similarities between these two fisheries in, and advise on, the establishment and Comment 18: Many commmenters and the limited amount of observer data administration of such plans. Clearly, urged NMFS to take a more proactive available for the West Coast-based Congress envisioned the Magnuson- role in promoting international pelagic longline fleet alone, NMFS Stevens Fishery Conservation and agreements that would close these concluded that using the combined Management Act as the tool for NMFS waters to vessels from other countries observer data from the Hawaii-based to use to manage fisheries. However, that may be catching and killing and West Coast-based longline fleets for where the Council process fails to leatherback and other sea turtles while fishing east of 150° W. long. is more address the mandates of the ESA, NMFS fishing for swordfish. representative of the sea turtle can excercise its authority under the Response: NMFS is dedicated to interaction rates that can be expected to ESA. Further, the Western Pacific protecting and preserving living marine occur throughout the West Coast-based Fisheries Management Council has resources and their habitat through pelagic longline fishery. proposed a regulation that would allow scientific research, management, Using the combined observer data, swordfish fishing but with modified enforcement, and international NMFS developed estimates of sea turtle gear that should reduce interactions. agreements. Recently, NMFS partnered take levels that would result from the Comment 15: One commenter with the Inter-American Tropical Tuna West Coast-based pelagic longline Commission to conduct training believes that the proposed rule should fishery. NMFS assumed that the West workshops for sea turtle bycatch be further modified to prohibit all Coast-based pelagic longline fleet reduction, attended by over 800 pelagic longlining, regardless of whether deploys one million hooks east of 150° fishermen throughout Ecuador. The it targets tuna or swordfish, because W. long., NMFS estimates the fishery agency will participate in similar pelagic longline fishing has not under the FMP would result in the workshops in Costa Rica this spring. In demonstrated an elimination of all annual capture of 126 to 195 loggerhead, addition, NMFS continues to promote mortality to leatherback sea turtles. An 23 to 57 leatherback, and 1 to 11 olive alternative to completely banning international collaboration and outreach ridley sea turtles. Of these, NMFS longline gear would be to implement a efforts to share research information on estimates that the West Coast-based time and area closure that is 100 percent possible new conservation measures for pelagic longline fishery under the effective at eliminating leatherback sea sea turtles. These are all very important management measures proposed by the turtle mortality. issues for NMFS. Response: Based on the analyses in Council would result in the annual the biological opinion evaluating the West Coast-based Fishing Effort mortality of 42 to 91 loggerhead sea effects of the FMP on listed species, At the time when NMFS issued the turtles, 4 to 25 leatherback sea turtles, including the leatherback sea turtle, proposed rule, preliminary data and 1 to 4 olive ridley sea turtles. NMFS concluded that longline fishing suggested that the West Coast-based Impacts to Sea Turtle Populations targeting tuna east of the 150° W. long. longline fishing fleet would set would not jeopardize the continued approximately 1.55 million hooks each Based on the analyses in the ESA existence of leatherback sea turtles. As calendar year. To evaluate whether this section 7 consultation, NMFS a result, NMFS has determined that a preliminary estimate in the FMP EIS concluded that if the fisheries under the complete ban on all longline fishing east was the best available information, FMP included shallow longline sets, the of the 150° W. long. is not warranted. NMFS reviewed and analyzed the FMP is likely to jeopardize the Comment 16: Unless gear HSFCA logbook data to determine the continued existence of loggerhead sea modifications can eliminate the number of active vessels and the turtles. However, when analyzed in mortality of leatherback sea turtles, a number of reported sets and hooks. conjunction with the prohibition of ° reduction of 60 percent, 70 percent, or Comparing these data with the NMFS shallow longline sets east of the 150 even 90 percent is not sufficient. observer program data and records, West long. by West Coast-based pelagic Response: Under the ESA, NMFS is NMFS determined that the preliminary longline vessels, the final conclusion for mandated to insure that any action estimates were too high. As a result, loggerhead sea turtles is that the authorized, funded, or carried out by an NMFS corrected the information about fisheries operating under the FMP are agency is not likely to jeopardize the the number of active vessels during not likely to jeopardize the continued continued existence of any endangered calendar years 2002 and 2003, and existence of loggerhead sea turtles. species or threatened species or result in decreased the estimated number of As a result, NMFS is proposing to the destruction or adverse modification expected fishing effort to one million implement restrictions in the West of habitat of such species. After hooks. Coast-based pelagic longline fishery in completing the section 7 consultation, waters east of 150° W. long. to conserve NMFS concludes that some leatherback Estimated Sea Turtle Take Levels leatherback and loggerhead sea turtles mortality will not jeopardize the There are two sets of data from which as required under the ESA. Under this continued existence of the species. rates of sea turtle interactions in the final rule, West Coast-based pelagic Comment 17: NMFS should close the West Coast-based pelagic longline longline vessels will be prohibited from West Coast-based longline fishery fishery could be derived: (1) Data from making shallow longline sets on the immediately via the immediate observers on Hawaii-based longline high seas in the Pacific Ocean east of promulgation of an emergency vessels operating in the same areas as 150° W. long. The prohibition of regulation rather than through an the West Coast-based pelagic longline shallow longline sets west of 150° W. extended notice and comment vessels; and (2) data from observers on long. proposed under the FMP would rulemaking process. West Coast-based pelagic longline also apply.
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There are several other factors that California ports for swordfish and profits would remain at $6.7 million, may ultimately affect the management associated species. All of these vessels minus the cost of adopting turtle and of the West Coast-based pelagic longline would be considered small businesses sea bird mitigation measures, fishery. As noted, the FMP contains under the SBA standards. Therefore, accommodating observers, and using framework procedures by which there would be no financial impacts monitoring equipment. NMFS is adjustments in conservation and resulting from disproportionality developing guidelines for the design management measures may be made between small and large vessels under and performance standards of through regulatory amendments if the rule. For most of the longline vessels equipment required for the handling of warranted by available information and involved, swordfish caught by longline incidentally caught sea turtles. The conditions. Further, the FMP recognizes gear makes up more than half of the required tools can be purchased, for an a potential for exempted fishing permits total revenue from fish sales. Table 1 estimated maximum cost of $2,000 per that allow testing of alternative gear presents total ex-vessel revenue and vessel, but vessel owners may also be and/or techniques that might dependence on swordfish landings for able use the guidelines to fabricate the demonstrate that longline fishing can be the 38 West coast-based vessels with equipment with lower cost materials. conducted in a manner that will not high seas pelagic longline swordfish Vessel owners do not pay an observer’s adversely affect protected species or that landings in 2001, broken down by the salary, but do bear costs associated with will result in lower levels of bycatch. number of vessels with varying percent providing room and board for the NMFS anticipates that the Council will dependence on swordfish. NMFS observer. Additionally, carrying an review information as it is generated to believes these data are representative of observer may increase the cost of consider possible changes in longline 2002 fishing vessel revenues. insurance that the vessel carries. Vessel fishing regulations and may propose monitoring equipment costs changes. NMFS will consider any such TABLE 1: TOTAL EX-VESSEL REVENUE approximately $2,000 to purchase and proposals. AND DEPENDENCE ON SWORDFISH $500 to install, and would require FOR 38 WEST-COAST-BASED VES- annual maintenance estimated to cost Classification approximately 20 percent of the SELS WITH HIGH SEAS PELAGIC NMFS has determined that this final purchase price per year. However, LONGLINE LANDINGS IN 2001. rule is consistent with the ESA and despite the equipment costs, the fishery would be able to land swordfish, and so other applicable laws. Depend- The impacts of this action and ence on over 25 years, the present value of long- alternatives are evaluated in accordance Average run profits relative to the status quo High Seas Percent with the National Environmental Policy Num- Longline Average Longline would range between $78 and $105 Act as the High Seas Pelagic Longline Caught Total Ex- million, using 7 percent and 4 percent ber of Swordfish vessel Swordfish Alternative 3 in the EIS prepared by the Ves- (category Revenue (swordfish discount rates, respectively. NMFS is Council (see ADDRESSES). sels revenue/ not adopting the Council’s proposed of sword- ($/vessel) total rev- This final rule has been determined to fish rev- enue) action because it does not adequately be not significant for purposes of enue/total reduce the incidental capture and Executive Order 12866. revenue) mortality of loggerhead sea turtles. This final rule does not contain 4 <50% $228,951 32.57% Alternative 3, which is the action collection-of-information requirements 3 50-70% $170,067 60.99% adopted by NMFS, would prohibit subject to the Paperwork Reduction Act. 3 >70-80% $222,089 76.66% fishermen from targeting swordfish east A combined RIR/IRFA was prepared 4 >80-90% $258,335 86.77% of 150° W. long. Swordfish are the target that describes the economic impacts of 13 >90-95% $182,211 93.26% species of this fishery. This would the Council’s FMP, which includes an 11 >95% $219,885 97.57% effectively eliminate all but incidental analysis of this proposed action as High swordfish landings and the short- and Seas Pelagic Longline Alternative 3. The The impacts of alternatives to this long-run profits currently associated RIR/IRFA is available from the Council action were evaluated in the RIR/IRFA. with landing swordfish ($6.7 million, (see ADDRESSES). No comments were Three alternatives were considered for and $78 million to $105 million, received on the RIR/IRFA. The FRFA is managing the high seas pelagic longline respectively), at least until alternative available from NMFS (see ADDRESSES). fishery. Under Alternative 1 (Status fishing opportunities are identified. A summary of the RIR/RFA follows: Quo), the FMP would not impose This loss assumes that all vessels in this The SUMMARY and SUPPLEMENTARY regulations on this fishery. The Council fishery cease fishing, although longline INFORMATION sections of this rule assumes that in the short-run, the fishing targeting tuna out of West Coast provide a description of the action, why fishery would continue to operate as it ports or Hawaii may be an alternative. it is being considered, and the legal currently does, earning average annual However, current participants in the basis for this action. That information is profits of $6.7 million. However, in the fishery indicate that without being able not repeated here. long-run, the Council expects that to target swordfish, the high seas A fish-harvesting business is regulations would be established under longline fishery originating from West considered a ‘‘small’’ business by the other authorities, due to concerns over Coast ports would cease to exist. Small Business Administration (SBA) if unregulated bycatch, such that over In keeping with the intent of it has annual receipts not in excess of time the fishery would disappear, and Executive Order 13132 to provide $3.5 million. For related fish-processing long-run profits would become zero as continuing and meaningful dialogue on businesses, a small business is one that the fishery was phased out. issues of mutual state and Federal employs 500 or fewer persons. For Alternative 2 (Council Proposed interest, NMFS conferred with the marinas and charter/party boats, a small Action) would maintain the fishery, States of California, Oregon, and business is one with annual receipts not allowing fishermen to continue targeting Washington regarding this rule. NMFS in excess of $5.0 million. swordfish east of 150° W. long., but has met with State Council and Plan This regulation imposes controls on impose some additional costs on Development Team representatives the fleet of approximately 21 longline longliners targeting swordfish on the throughout the FMP development vessels that fish principally out of high seas. Short-run average annual process. No comments were received
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from the States opposing the prohibition may be set between any two floats. The A season allocation of the 2004 of shallow sets east of the 150° W. long. Vessel operators using basket-style TAC of Pacific cod apportioned to and no objection has been raised by the longline gear must set a minimum of 10 vessels catching Pacific cod for Council. NMFS intends to continue branch lines between any 2 floats. processing by the offshore component in engaging in informal and formal (vi) Longline gear must be deployed the Western Regulatory Area is 1,017 contacts with these States during the such that the deepest point of the main metric tons (mt) as established by the implementation of this final rule and longline between any two floats, i.e., the 2004 final harvest specifications of amendments to the FMP. deepest point in each sag of the main groundfish for the GOA (69 FR 9261, line, is at a depth greater than 100 m February 27, 2004). List of Subjects in 50 CFR Part 223 (328.1 ft or 54.6 fm) below the sea In accordance with § 679.20(d)(1)(i), Endangered and threatened species, surface. the Administrator, Alaska Region, Exports, Imports, Marine mammals, [FR Doc. 04–5553 Filed 3–10–04; 8:45 am] NMFS (Regional Administrator), has Transportation. BILLING CODE 3510–22–S determined that the A season allocation Dated: March 5, 2004. of the 2004 TAC of Pacific cod Rebecca Lent, apportioned to vessels catching Pacific Deputy Assistant Administrator for DEPARTMENT OF COMMERCE cod for processing by the offshore Regulatory Programs, National Marine component of the Western Regulatory National Oceanic and Atmospheric Fisheries Service. Area of the GOA will be reached. Administration ■ For the reasons set out in the preamble, Therefore, the Regional Administrator is establishing a directed fishing 50 CFR part 223 is amended to read as 50 CFR Part 679 follows: allowance of 817 mt, and is setting aside [Docket No. 031125292–4061–02; I.D. the remaining 200 mt as bycatch to PART 223—THREATENED MARINE 030504A] support other anticipated groundfish AND ANADROMOUS SPECIES fisheries. In accordance with Fisheries of the Exclusive Economic § 679.20(d)(1)(iii), the Regional ■ 1. The authority citation for part 223 is Zone Off Alaska; Pacific Cod by revised to read as follows: Administrator finds that this directed Vessels Catching Pacific Cod for fishing allowance will soon be reached. Authority: 16 U.S.C. 1531–1543; subpart B, Processing by the Offshore Consequently, NMFS is prohibiting § 223.12 also issued under 16 U.S.C. 1361 et Component in the Western Regulatory directed fishing for Pacific cod by seq.; 16 U.S.C. 5503(d) for § 223.206(d)(9). Area of the Gulf of Alaska vessels catching Pacific cod for ■ 2. In § 223.206, a new paragraph (d)(9) processing by the offshore component in is added to read as follows: AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and the Western Regulatory Area of the § 223.206 Exceptions to prohibitions Atmospheric Administration (NOAA), GOA. relating to sea turtles. Commerce. Classification * * * * * ACTION: Closure. (d) * * * This action responds to the best (9) Restrictions applicable to Pacific SUMMARY: NMFS is prohibiting directed available information recently obtained pelagic longline vessels. In addition to fishing for Pacific cod by vessels from the fishery. The Assistant the general prohibitions specified in catching Pacific cod for processing by Administrator for Fisheries, NOAA, § 600.725 of Chapter VI, it is unlawful the offshore component in the Western (AA), finds good cause to waive the for any person who is not operating Regulatory Area of the Gulf of Alaska requirement to provide prior notice and under a western Pacific longline permit (GOA). This action is necessary to opportunity for public comment under § 660.21 to do any of the prevent exceeding the A season pursuant to the authority set forth at 5 following on the high seas of the Pacific allocation of the 2004 total allowable U.S.C. 553(b)(B) as such requirement is Ocean east of 150° W. long. and north catch (TAC) of Pacific cod apportioned impracticable and contrary to the public of the equator (0° N. lat.): to vessels catching Pacific cod for interest. This requirement is (i) Direct fishing effort toward the processing by the offshore component of impracticable and contrary to the public harvest of swordfish (Xiphias gladius) the Western Regulatory Area of the interest as it would prevent the Agency using longline gear. GOA. from responding to the most recent (ii) Possess a light stick on board a fisheries data in a timely fashion and DATES: Effective 1200 hrs, Alaska local longline vessel. A light stick as used in time (A.l.t.), March 8, 2004, through would delay the closure of the A season this paragraph is any type of light 1200 hrs, A.l.t., June 10, 2004. allocation of the 2004 TAC of Pacific emitting device, including any cod apportioned to vessels catching fluorescent glow bead, chemical, or FOR FURTHER INFORMATION CONTACT: Josh Pacific cod for processing by the electrically powered light that is affixed Keaton, 907–586–7228. offshore component of the Western underwater to the longline gear. SUPPLEMENTARY INFORMATION: NMFS Regulatory Area of the GOA. (iii) An operator of a longline vessel manages the groundfish fishery in the The AA also finds good cause to subject to this section may land or GOA exclusive economic zone waive the 30–day delay in the effective possess no more than 10 swordfish from according to the Fishery Management date of this action under 5 U.S.C. a fishing trip where any part of the trip Plan for Groundfish of the Gulf of 553(d)(3). This finding is based upon included fishing east of 150° W. long. Alaska (FMP) prepared by the North ° the reasons provided above for waiver of and north of the equator (0 N. lat.). Pacific Fishery Management Council prior notice and opportunity for public (iv) Fail to employ basket-style under authority of the Magnuson- comment. longline gear such that the mainline is Stevens Fishery Conservation and deployed slack when fishing. Management Act. Regulations governing This action is required by section (v) When a conventional fishing by U.S. vessels in accordance 679.20 and is exempt from review under monofilament longline is deployed by a with the FMP appear at subpart H of 50 Executive Order 12866. vessel, no fewer than 15 branch lines CFR part 600 and 50 CFR part 679. Authority: 16 U.S.C. 1801 et seq.
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Dated: March 5, 2004. Bruce C. Morehead, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service. [FR Doc. 04–5408 Filed 3–5–04; 3:07 pm] BILLING CODE 3510–22–S
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Proposed Rules Federal Register Vol. 69, No. 48
Thursday, March 11, 2004
This section of the FEDERAL REGISTER Internet as attached electronic files must must submit a self-addressed, stamped contains notices to the public of the proposed be formatted in Microsoft Word 97 or postcard on which the following issuance of rules and regulations. The 2000 or ASCII text. statement is made: ‘‘Comments to purpose of these notices is to give interested The service information referenced in Docket Number 2002–NM–201–AD.’’ persons an opportunity to participate in the the proposed rule may be obtained from rule making prior to the adoption of the final The postcard will be date stamped and rules. Rohr, Inc., 850 Lagoon Drive, Chula returned to the commenter. Vista, California 91910–2098. This information may be examined at the Availability of NPRMs FAA, Transport Airplane Directorate, DEPARTMENT OF TRANSPORTATION Any person may obtain a copy of this 1601 Lind Avenue, SW., Renton, NPRM by submitting a request to the Federal Aviation Administration Washington. FAA, Transport Airplane Directorate, FOR FURTHER INFORMATION CONTACT: Tim 14 CFR Part 39 ANM–114, Attention: Rules Docket No. Dulin, Aerospace Engineer, 2002–NM–201–AD, 1601 Lind Avenue, [Docket No. 2002–NM–201–AD] International Branch, ANM–116, FAA, SW., Renton, Washington 98055–4056. Transport Airplane Directorate, 1601 RIN 2120–AA64 Lind Avenue, SW., Renton, Washington Discussion 98055–4056; telephone (425) 227–2141; Airworthiness Directives; Airbus Model ´ ´ fax (425) 227–1149. The Direction Generale de l’Aviation A319–111, –112, –113, and –114; A320– Civile (DGAC), which is the SUPPLEMENTARY INFORMATION: 111, –211, –212, and –214; and A321– airworthiness authority for France, 111, –112, and –211 Series Airplanes Comments Invited notified the FAA that an unsafe AGENCY: Federal Aviation Interested persons are invited to condition may exist on certain Airbus Administration, DOT. participate in the making of the Model A319, A320, and A321 series ACTION: Notice of proposed rulemaking proposed rule by submitting such airplanes. The DGAC advises that, (NPRM). written data, views, or arguments as during routine maintenance on the they may desire. Communications shall actuator of a thrust reverser blocker SUMMARY: This document proposes the identify the Rules Docket number and door, the chrome plating on the piston adoption of a new airworthiness be submitted in triplicate to the address rod was found to extend up to the directive (AD) that is applicable to specified above. All communications hydraulic feed holes. The actuator certain Airbus Model A319, A320, and received on or before the closing date supplier discovered this quality concern A321 series airplanes. This proposal for comments, specified above, will be and identified numerous suspect units would require a one-time inspection to considered before taking action on the during rework. The overextended identify the serial number of the proposed rule. The proposals contained chrome plating could contribute to actuator of the thrust reverser blocker in this action may be changed in light decreased fatigue capability of the door, and corrective action if necessary. of the comments received. actuator and, in combination with other This action is necessary to prevent Submit comments using the following misrigging problems, could result in an inadvertent deployment of the thrust format: inadvertent thrust reverser door reverser door, which could result in • Organize comments issue-by-issue. deployment and consequent reduced reduced controllability of the airplane. For example, discuss a request to controllability of the airplane. This action is intended to address the change the compliance time and a identified unsafe condition. request to change the service bulletin Explanation of Relevant Service DATES: Comments must be received by reference as two separate issues. Information April 12, 2004. • For each issue, state what specific The actuator manufacturer has issued ADDRESSES: Submit comments in change to the proposed AD is being Rohr CFM56–5A/–5B Service Bulletin triplicate to the Federal Aviation requested. Administration (FAA), Transport • Include justification (e.g., reasons or RA32078–112, Revision 1, dated Airplane Directorate, ANM–114, data) for each request. February 6, 2002, which describes Attention: Rules Docket No. 2002–NM– Comments are specifically invited on procedures for inspecting the actuator 201–AD, 1601 Lind Avenue, SW., the overall regulatory, economic, (part number D23090000–6) of the Renton, Washington 98055–4056. environmental, and energy aspects of thrust reverser blocker door to identify Comments may be inspected at this the proposed rule. All comments the serial number, and replacing location between 9 a.m. and 3 p.m., submitted will be available, both before affected actuators with reworked Monday through Friday, except Federal and after the closing date for comments, actuators. Accomplishment of the holidays. Comments may be submitted in the Rules Docket for examination by actions specified in the service bulletin via fax to (425) 227–1232. Comments interested persons. A report is intended to adequately address the may also be sent via the Internet using summarizing each FAA-public contact identified unsafe condition. The DGAC the following address: 9-anm- concerned with the substance of this classified this service bulletin as [email protected]. Comments sent proposal will be filed in the Rules mandatory and issued French via fax or the Internet must contain Docket. airworthiness directive 2002–337(B) R1, ‘‘Docket No. 2002–NM–201–AD’’ in the Commenters wishing the FAA to dated July 24, 2002, to ensure the subject line and need not be submitted acknowledge receipt of their comments continued airworthiness of these in triplicate. Comments sent via the submitted in response to this action airplanes in France.
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FAA’s Conclusions These figures typically do not include To prevent inadvertent deployment of the thrust reverser door, which could result in These airplane models are incidental costs, such as the time required to plan, gain access and close reduced controllability of the airplane, manufactured in France and are type accomplish the following: certificated for operation in the United up, or perform other administrative States under the provisions of section actions. Repair History 21.29 of the Federal Aviation Regulatory Impact (a) If, from a review of the maintenance Regulations (14 CFR 21.29) and the records, it can be positively determined that applicable bilateral airworthiness The regulations proposed herein the thrust reverser blocker door actuator was agreement. Pursuant to this bilateral would not have a substantial direct never overhauled by ‘‘TRW—Lucas Repair airworthiness agreement, the DGAC has effect on the States, on the relationship Center—Englewood, New Jersey,’’ then no kept the FAA informed of the situation between the national Government and further work is required by this AD. described above. The FAA has the States, or on the distribution of Inspection power and responsibilities among the examined the findings of the DGAC, (b) Before the actuator of the thrust reverser reviewed all available information, and various levels of government. Therefore, blocker door accumulates 7,000 total flight determined that AD action is necessary it is determined that this proposal cycles since its last overhaul, or within 500 for products of this type design that are would not have federalism implications flight hours after the effective date of this AD, certificated for operation in the United under Executive Order 13132. whichever occurs later: Do a general visual States. For the reasons discussed above, I inspection to identify the part number and certify that this proposed regulation (1) serial number of the actuator, in accordance Explanation of Requirements of is not a ‘‘significant regulatory action’’ with Rohr CFM56–5A/–5B Service Bulletin Proposed Rule under Executive Order 12866; (2) is not RA32078–112, Revision 1, dated February 6, Since an unsafe condition has been a ‘‘significant rule’’ under the DOT 2002. Look for affected serial numbers as identified that is likely to exist or listed in paragraph 1.A(1) of the service Regulatory Policies and Procedures (44 bulletin. develop on other airplanes of the same FR 11034, February 26, 1979); and (3) if Note 1: For the purposes of this AD, a type design registered in the United promulgated, will not have a significant States, the proposed AD would require general visual inspection is defined as: ‘‘A economic impact, positive or negative, visual examination of an interior or exterior accomplishment of the actions specified on a substantial number of small entities area, installation, or assembly to detect in the service bulletin described under the criteria of the Regulatory obvious damage, failure, or irregularity. This previously, except as discussed below. Flexibility Act. A copy of the draft level of inspection is made from within Difference Between Proposed AD and regulatory evaluation prepared for this touching distance unless otherwise specified. French Airworthiness Directive action is contained in the Rules Docket. A mirror may be necessary to enhance visual A copy of it may be obtained by access to all exposed surfaces in the The applicability of the French contacting the Rules Docket at the inspection area. This level of inspection is airworthiness directive excludes location provided under the caption made under normally available lighting conditions such as daylight, hangar lighting, airplanes on which the particular ADDRESSES. actuator has never been overhauled by flashlight, or droplight and may require TRW—Lucas Repair Center. U.S. List of Subjects in 14 CFR Part 39 removal or opening of access panels or doors. operators are required to maintain Stands, ladders, or platforms may be required Air transportation, Aircraft, Aviation to gain proximity to the area being checked.’’ records of only the date of overhaul— safety, Safety. not the identity of the facility doing the (1) If no affected serial number is found, no overhaul. Therefore, this proposed AD The Proposed Amendment more work is required by this paragraph. would require inspection of all actuators (2) If any affected serial number is found: Accordingly, pursuant to the Before further flight, replace the affected having the particular part number, authority delegated to me by the actuator with a reworked part in accordance unless the maintenance records Administrator, the Federal Aviation with the service bulletin. positively determine that TRW has Administration proposes to amend part (c) An inspection and rework done before never overhauled that actuator. 39 of the Federal Aviation Regulations the effective date of this AD in accordance Cost Impact (14 CFR part 39) as follows: with Rohr CFM56–5A/–5B Service Bulletin RA32078–112, dated October 22, 2001, is We estimate that 551 airplanes of U.S. PART 39—AIRWORTHINESS acceptable for compliance with the registry would be affected by this DIRECTIVES applicable requirements of this AD. proposed AD. It would take about 4 Parts Installation work hours per airplane to identify the 1. The authority citation for part 39 actuator part numbers, at an average (d) As of the effective date of this AD, no continues to read as follows: person may install, on any airplane, an labor rate of $65 per work hour. Based Authority: 49 U.S.C. 106(g), 40113, 44701. actuator of the thrust reverser blocker door on these figures, the cost impact of the having a part number and serial number proposed AD on U.S. operators is § 39.13 [Amended] listed in paragraph 1.A.(1) of Rohr CFM56– estimated to be $143,260, or $260 per 2. Section 39.13 is amended by 5A/–5B Service Bulletin RA32078–112, airplane. adding the following new airworthiness Revision 1, dated February 6, 2002, unless The cost impact figure discussed directive: the actuator has been reworked in accordance above is based on assumptions that no with the service bulletin. Airbus: Docket 2002–NM–201–AD. operator has yet accomplished any of Alternative Methods of Compliance the proposed requirements of this AD Applicability: Model A319–111, –112, –113, and –114; A320–111, –211, –212, and (e) In accordance with 14 CFR 39.19, the action, and that no operator would Manager, International Branch, ANM–116, accomplish those actions in the future if –214; and A321–111, –112, and –211 series airplanes; certificated in any category; FAA, Transport Airplane Directorate, is this AD were not adopted. The cost powered by CFM56–5A or –5B engines authorized to approve alternative methods of impact figures discussed in AD having any thrust reverser blocker door compliance for this AD. rulemaking actions represent only the actuator part number D23090000–6. Note 2: The subject of this AD is addressed time necessary to perform the specific Compliance: Required as indicated, unless in French airworthiness directive 2002– actions actually required by the AD. accomplished previously. 337(B) R1, dated July 24, 2002.
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Issued in Renton, Washington, on March 3, be formatted in Microsoft Word 97 or Availability of NPRMs 2004. 2000 or ASCII text. Any person may obtain a copy of this Ali Bahrami, The service information referenced in NPRM by submitting a request to the Acting Manager, Transport Airplane the proposed rule may be obtained from FAA, Transport Airplane Directorate, Directorate, Aircraft Certification Service. Empresa Brasileira de Aeronautica S.A. ANM–114, Attention: Rules Docket No. [FR Doc. 04–5447 Filed 3–10–04; 8:45 am] (EMBRAER), P.O. Box 343—CEP 12.225, 2003–NM–67–AD, 1601 Lind Avenue, BILLING CODE 4910–13–P Sao Jose dos Campos—SP, Brazil. This SW., Renton, Washington 98055–4056. information may be examined at the FAA, Transport Airplane Directorate, Discussion DEPARTMENT OF TRANSPORTATION 1601 Lind Avenue, SW., Renton, The Departamento de Aviacao Civil Washington. (DAC), which is the airworthiness Federal Aviation Administration FOR FURTHER INFORMATION CONTACT: authority for Brazil, notified the FAA that an unsafe condition may exist on 14 CFR Part 39 Todd Thompson, Aerospace Engineer; International Branch, ANM–116, FAA, certain EMBRAER Model EMB–135 and –145 series airplanes. The DAC advises [Docket No. 2003–NM–67–AD] Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington that it has received reports of degradation in the performance of the RIN 2120–AA64 98055–4056; telephone (425) 227–1175; fax (425) 227–1149. VOR/ILS/MB system due to the presence of moisture, dirt, and corrosion Airworthiness Directives; Empresa SUPPLEMENTARY INFORMATION: Brasileira de Aeronautica S.A. between the base and the support of the (EMBRAER) Model EMB–135 and Comments Invited glide slope antenna and in the electrical EMB–145 Series Airplanes Interested persons are invited to connectors of the navigation system. participate in the making of the This condition, if not corrected, could AGENCY: Federal Aviation result in the display of erroneous or proposed rule by submitting such Administration, DOT. misleading information to the flight written data, views, or arguments as crew in the cockpit. ACTION: Notice of proposed rulemaking they may desire. Communications shall (NPRM). identify the Rules Docket number and Explanation of Relevant Service be submitted in triplicate to the address Information SUMMARY: This document proposes the adoption of a new airworthiness specified above. All communications EMBRAER has issued Service Bulletin directive (AD) that is applicable to received on or before the closing date 145–34–0069, dated March 28, 2002, certain EMBRAER Model EMB–135 and for comments, specified above, will be which describes procedures for an EMB–145 series airplanes. This considered before taking action on the inspection of the base and the support proposal would require an inspection of proposed rule. The proposals contained surfaces of the glide slope antenna, and the base and support surfaces of the in this action may be changed in light of certain electrical connectors of the glide slope antenna and of certain of the comments received. navigation system; and applicable Submit comments using the following electrical connectors of the navigation corrective actions. The applicable format: system; and applicable corrective corrective actions include cleaning the • Organize comments issue-by-issue. actions if necessary. These actions are glide slope antenna base and support For example, discuss a request to necessary to prevent the display of surfaces, repairing damage, applying change the compliance time and a erroneous or misleading information to silicone grease to the electrical request to change the service bulletin the flight crew in the cockpit due to connectors, and reinstalling the glide reference as two separate issues. degradation in the performance of the slope antenna with a new conductive • For each issue, state what specific VOR/ILS/MB system. These actions are gel gasket. The DAC classified this change to the proposed AD is being intended to address the identified service bulletin as mandatory and requested. issued Brazilian airworthiness directive unsafe condition. • Include justification (e.g., reasons or 2003–01–02R1, effective March 12, DATES: Comments must be received by data) for each request. 2003, to ensure the continued April 12, 2004. Comments are specifically invited on airworthiness of these airplanes in ADDRESSES: Submit comments in the overall regulatory, economic, Brazil. triplicate to the Federal Aviation environmental, and energy aspects of Administration (FAA), Transport the proposed rule. All comments FAA’s Conclusions Airplane Directorate, ANM–114, submitted will be available, both before These airplane models are Attention: Rules Docket No. 2003–NM– and after the closing date for comments, manufactured in Brazil and are type 67–AD, 1601 Lind Avenue, SW., in the Rules Docket for examination by certificated for operation in the United Renton, Washington 98055–4056. interested persons. A report States under the provisions of section Comments may be inspected at this summarizing each FAA-public contact 21.29 of the Federal Aviation location between 9 a.m. and 3 p.m., concerned with the substance of this Regulations (14 CFR 21.29) and the Monday through Friday, except Federal proposal will be filed in the Rules applicable bilateral airworthiness holidays. Comments may be submitted Docket. agreement. Pursuant to this bilateral via fax to (425) 227–1232. Comments Commenters wishing the FAA to airworthiness agreement, the DAC has may also be sent via the Internet using acknowledge receipt of their comments kept the FAA informed of the situation the following address: 9-anm- submitted in response to this action described above. The FAA has [email protected]. Comments sent must submit a self-addressed, stamped examined the findings of the DAC, via fax or the Internet must contain postcard on which the following reviewed all available information, and ‘‘Docket No. 2003–NM–67–AD’’ in the statement is made: ‘‘Comments to determined that AD action is necessary subject line and need not be submitted Docket Number 2003–NM–67–AD.’’ The for products of this type design that are in triplicate. Comments sent via the postcard will be date stamped and certificated for operation in the United Internet as attached electronic files must returned to the commenter. States.
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Explanation of Requirements of A copy of it may be obtained by Alternative Methods of Compliance Proposed Rule contacting the Rules Docket at the (b) In accordance with 14 CFR 39.19, the Since an unsafe condition has been location provided under the caption Manager, ANM–116, FAA, Transport ADDRESSES. Airplane Directorate, is authorized to identified that is likely to exist or approve alternative methods of compliance develop on other airplanes of the same List of Subjects in 14 CFR Part 39 for this AD. type design registered in the United States, the proposed AD would require Air transportation, Aircraft, Aviation Note 2: The subject of this AD is addressed safety, Safety. in Brazilian airworthiness directive 2003–01– accomplishment of the actions specified 02R1, effective March 12, 2003. in the service bulletin described The Proposed Amendment previously. Issued in Renton, Washington, on March 2, Accordingly, pursuant to the 2004. Cost Impact authority delegated to me by the Ali Bahrami, The FAA estimates that 365 airplanes Administrator, the Federal Aviation Administration proposes to amend part Acting Manager, Transport Airplane of U.S. registry would be affected by this Directorate, Aircraft Certification Service. proposed AD, that it would take 39 of the Federal Aviation Regulations (14 CFR part 39) as follows: [FR Doc. 04–5517 Filed 3–10–04; 8:45 am] approximately 2 work hours per BILLING CODE 4910–13–P airplane to accomplish the proposed PART 39—AIRWORTHINESS actions, and that the average labor rate DIRECTIVES is $65 per work hour. Based on these DEPARTMENT OF TRANSPORTATION figures, the cost impact of the proposed 1. The authority citation for part 39 AD on U.S. operators is estimated to be continues to read as follows: Federal Aviation Administration $47,450, or $130 per airplane. Authority: 49 U.S.C. 106(g), 40113, 44701. The cost impact figure discussed 14 CFR Part 39 above is based on assumptions that no § 39.13 [Amended] [Docket No. 2003–NM–251–AD] operator has yet accomplished any of 2. Section 39.13 is amended by the proposed requirements of this AD adding the following new airworthiness RIN 2120–AA64 action, and that no operator would directive: accomplish those actions in the future if Airworthiness Directives; McDonnell this AD were not adopted. The cost Empresa Brasileira De Aeronautica S.A. Douglas DC–9–82 (MD–82) and DC–9– impact figures discussed in AD (Embraer): Docket 2003–NM–67–AD. 83 (MD–83) Airplanes; and Model MD– rulemaking actions represent only the Applicability: Model EMB–135 and –145 88 Airplanes time necessary to perform the specific series airplanes, certificated in any category; as listed in EMBRAER Service Bulletin 145– AGENCY: actions actually required by the AD. Federal Aviation 34–0069, dated March 28, 2002. Administration, DOT. These figures typically do not include Compliance: Required as indicated, unless ACTION: Notice of proposed rulemaking incidental costs, such as the time accomplished previously. required to gain access and close up, To prevent display of erroneous or (NPRM). planning time, or time necessitated by misleading information to the flight crew in SUMMARY: This document proposes the other administrative actions. The the cockpit due to degradation in the adoption of a new airworthiness manufacturer may cover the cost of performance of the VOR/ILS/MB system, directive (AD) that is applicable to replacement parts associated with this accomplish the following: certain McDonnell Douglas DC–9–82 proposed AD, subject to warranty Inspection and Corrective Actions (MD–82) and DC–9–83 (MD–83) conditions. (a) Within 500 flight hours from the airplanes; and Model MD–88 airplanes. Regulatory Impact effective date of this AD: Perform a general This proposal would require inspection visual inspection of the base and the support of the captain’s and first officer’s seat The regulations proposed herein surfaces of the glide slope antenna and of would not have a substantial direct certain electrical connectors of the navigation track locking pins for insufficient effect on the States, on the relationship system for contamination and/or corrosion; engagement caused by seat track between the national Government and and do all applicable corrective actions by misalignment, and corrective actions, if the States, or on the distribution of accomplishing all the actions in accordance necessary. This action is necessary to power and responsibilities among the with the Accomplishment Instructions of prevent uncommanded movement of the EMBRAER Service Bulletin 145–34–0069, captain’s and first officer’s seats during various levels of government. Therefore, dated March 28, 2002. Do the actions per the it is determined that this proposal takeoff and landing, which could result service bulletin. Accomplish any applicable in interference with the operation of the would not have federalism implications corrective actions before further flight. under Executive Order 13132. airplane and consequent temporary loss Note 1: For the purposes of this AD, a of control of the airplane. This action is For the reasons discussed above, I general visual inspection is defined as: ‘‘A certify that this proposed regulation (1) intended to address the identified visual examination of an interior or exterior unsafe condition. is not a ‘‘significant regulatory action’’ area, installation, or assembly to detect under Executive Order 12866; (2) is not obvious damage, failure, or irregularity. This DATES: Comments must be received by a ‘‘significant rule’’ under the DOT level of inspection is made from within April 26, 2004. Regulatory Policies and Procedures (44 touching distance unless otherwise specified. ADDRESSES: Submit comments in FR 11034, February 26, 1979); and (3) if A mirror may be necessary to enhance visual triplicate to the Federal Aviation promulgated, will not have a significant access to all exposed surfaces in the Administration (FAA), Transport economic impact, positive or negative, inspection area. This level of inspection is Airplane Directorate, ANM–114, made under normally available lighting on a substantial number of small entities conditions such as daylight, hangar lighting, Attention: Rules Docket No. 2003–NM– under the criteria of the Regulatory flashlight, or droplight and may require 251–AD, 1601 Lind Avenue, SW., Flexibility Act. A copy of the draft removal or opening of access panels or doors. Renton, Washington 98055–4056. regulatory evaluation prepared for this Stands, ladders, or platforms may be required Comments may be inspected at this action is contained in the Rules Docket. to gain proximity to the area being checked.’’ location between 9 a.m. and 3 p.m.,
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Monday through Friday, except Federal submitted will be available, both before • Performing a detailed inspection of holidays. Comments may be submitted and after the closing date for comments, the lockpins for wear, and replacing via fax to (425) 227–1232. Comments in the Rules Docket for examination by lockpins with new lockpins, if may also be sent via the Internet using interested persons. A report necessary; and the following address: 9-anm- summarizing each FAA-public contact • Performing a detailed inspection of [email protected]. Comments sent concerned with the substance of this the seat track for proper alignment, and via fax or the Internet must contain proposal will be filed in the Rules repairing the seat track, if necessary. ‘‘Docket No. 2003–NM–251–AD’’ in the Docket. Accomplishment of the actions subject line and need not be submitted Commenters wishing the FAA to specified in the service bulletin is in triplicate. Comments sent via the acknowledge receipt of their comments intended to adequately address the Internet as attached electronic files must submitted in response to this action identified unsafe condition. be formatted in Microsoft Word 97 or must submit a self-addressed, stamped Explanation of Requirements of 2000 or ASCII text. postcard on which the following Proposed Rule The service information referenced in statement is made: ‘‘Comments to the proposed rule may be obtained from Docket Number 2003–NM–251–AD.’’ Since an unsafe condition has been Boeing Commercial Airplanes, Long The postcard will be date stamped and identified that is likely to exist or Beach Division, 3855 Lakewood returned to the commenter. develop on other products of this same type design, the proposed AD would Boulevard, Long Beach, California Availability of NPRMs 90846, Attention: Data and Service require accomplishment of the actions Management, Dept. C1–L5A (D800– Any person may obtain a copy of this specified in the service bulletin 0024). This information may be NPRM by submitting a request to the described previously. examined at the FAA, Transport FAA, Transport Airplane Directorate, Cost Impact Airplane Directorate, 1601 Lind ANM–114, Attention: Rules Docket No. There are approximately 1,166 Avenue, SW., Renton, Washington; or at 2003–NM–251–AD, 1601 Lind Avenue, airplanes of the affected design in the the FAA, Los Angeles Aircraft SW., Renton, Washington 98055–4056. worldwide fleet. The FAA estimates that Certification Office, 3960 Paramount Discussion 672 airplanes of U.S. registry would be Boulevard, Lakewood, California. The FAA has received a report affected by this proposed AD, that it FOR FURTHER INFORMATION CONTACT: indicating that the airplane would take approximately 1 work hour Cheyenne Del Carmen, Aerospace manufacturer discovered, during per airplane to accomplish the proposed Engineer, Systems and Equipment production, fore and aft misalignment of inspection, and that the average labor Branch, ANM–130L, FAA, Los Angeles cockpit floor seat tracks at the captain’s rate is $65 per work hour. Based on Aircraft Certification Office, 3960 and/or first officer’s seat assembly on these figures, the cost impact of the Paramount Boulevard, Lakewood, some McDonnell Douglas DC–9–82 proposed AD on U.S. operators is California 90712–4137; telephone (562) airplanes. The seat track misalignment estimated to be $43,680 or $65 per 627–5338; fax (562) 627–5210. was enough to prevent full engagement airplane. SUPPLEMENTARY INFORMATION: of the seat locking pins into the seat The cost impact figure discussed above is based on assumptions that no Comments Invited track detent holes. This condition, if not corrected, could result in operator has yet accomplished any of Interested persons are invited to uncommanded movement of the the proposed requirements of this AD participate in the making of the captain’s and first officer’s seats during action, and that no operator would proposed rule by submitting such takeoff and landing, which could result accomplish those actions in the future if written data, views, or arguments as in interference with the operation of the this proposed AD were not adopted. The they may desire. Communications shall airplane and consequent temporary loss cost impact figures discussed in AD identify the Rules Docket number and of control of the airplane. rulemaking actions represent only the be submitted in triplicate to the address time necessary to perform the specific specified above. All communications Similar Airplanes actions actually required by the AD. received on or before the closing date The subject areas on certain These figures typically do not include for comments, specified above, will be McDonnell Douglas Model DC–9–83 incidental costs, such as the time considered before taking action on the airplanes and Model MD–88 airplanes required to gain access and close up, proposed rule. The proposals contained are identical to those on the affected planning time, or time necessitated by in this action may be changed in light McDonnell Douglas DC–9–82 airplanes. other administrative actions. of the comments received. Therefore, all of these models may be Manufacturer warranty remedies may be Submit comments using the following subject to the same unsafe condition. available for labor costs associated with format: this proposed AD. As a result, the costs Explanation of Relevant Service • Organize comments issue-by-issue. attributable to the proposed AD may be Information For example, discuss a request to less than stated above. change the compliance time and a The FAA has reviewed and approved request to change the service bulletin Boeing Alert Service Bulletin MD80– Regulatory Impact reference as two separate issues. 25A367, Revision 01, dated June 14, The regulations proposed herein • For each issue, state what specific 2002, which describes procedures for a would not have a substantial direct change to the proposed AD is being detailed inspection of the captain’s and effect on the States, on the relationship requested. first officer’s seat track locking pins for between the national Government and • Include justification (e.g., reasons or sufficient engagement; and corrective the States, or on the distribution of data) for each request. actions, if necessary. The corrective power and responsibilities among the Comments are specifically invited on actions include the following actions: various levels of government. Therefore, the overall regulatory, economic, • Adjusting/repairing the locking it is determined that this proposal environmental, and energy aspects of mechanism and/or replacing the lockpin would not have federalism implications the proposed rule. All comments with a new lockpin; under Executive Order 13132.
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For the reasons discussed above, I actions must be accomplished before further the fuselage. This action is intended to certify that this proposed regulation (1) flight. address the identified unsafe condition. is not a ‘‘significant regulatory action’’ Note 1: For the purposes of this AD, a DATES: Comments must be received by under Executive Order 12866; (2) is not detailed inspection is defined as: ‘‘An April 12, 2004. intensive visual examination of a specific a ‘‘significant rule’’ under the DOT ADDRESSES: Submit comments in structural area, system, installation, or Regulatory Policies and Procedures (44 triplicate to the Federal Aviation FR 11034, February 26, 1979); and (3) if assembly to detect damage, failure, or irregularity. Available lighting is normally Administration (FAA), Transport promulgated, will not have a significant supplemented with a direct source of good Airplane Directorate, ANM–114, economic impact, positive or negative, lighting at intensity deemed appropriate by Attention: Rules Docket No. 2003–NM– on a substantial number of small entities the inspector. Inspection aids such as mirror, 183–AD, 1601 Lind Avenue, SW., under the criteria of the Regulatory magnifying lenses, etc., may be used. Surface Renton, Washington 98055–4056. Flexibility Act. A copy of the draft cleaning and elaborate access procedures Comments may be inspected at this regulatory evaluation prepared for this may be required.’’ location between 9 a.m. and 3 p.m., action is contained in the Rules Docket. Monday through Friday, except Federal A copy of it may be obtained by Inspection/Corrective Actions Accomplished Per Previous Issue of Service Bulletin holidays. Comments may be submitted contacting the Rules Docket at the via fax to (425) 227–1232. Comments (b) Any inspection/corrective action location provided under the caption may also be sent via the Internet using ADDRESSES. accomplished before the effective date of this AD per Boeing Alert Service Bulletin MD80– the following address: 9-anm- List of Subjects in 14 CFR Part 39 25A367, dated December 6, 1999, is [email protected]. Comments sent considered acceptable for compliance with via fax or the Internet must contain Air transportation, Aircraft, Aviation the corresponding inspection/corrective ‘‘Docket No. 2003–NM–183–AD’’ in the safety, Safety. action specified in this AD. subject line and need not be submitted The Proposed Amendment Alternative Methods of Compliance in triplicate. Comments sent via the Internet as attached electronic files must Accordingly, pursuant to the (c) In accordance with 14 CFR 39.19, the be formatted in Microsoft Word 97 or authority delegated to me by the Manager, Los Angeles Aircraft Certification Office, FAA, is authorized to approve 2000 or ASCII text. Administrator, the Federal Aviation The service information referenced in Administration proposes to amend part alternative methods of compliance for this AD. the proposed rule may be obtained from 39 of the Federal Aviation Regulations Airbus, 1 Rond Point Maurice Bellonte, (14 CFR part 39) as follows: Issued in Renton, Washington, on March 2, 2004. 31707 Blagnac Cedex, France. This PART 39—AIRWORTHINESS Ali Bahrami, information may be examined at the DIRECTIVES Acting Manager, Transport Airplane FAA, Transport Airplane Directorate, Directorate, Aircraft Certification Service. 1601 Lind Avenue, SW., Renton, 1. The authority citation for part 39 [FR Doc. 04–5518 Filed 3–10–04; 8:45 am] Washington. continues to read as follows: BILLING CODE 4910–13–P FOR FURTHER INFORMATION CONTACT: Tim Authority: 49 U.S.C. 106(g), 40113, 44701. Backman, Aerospace Engineer, International Branch, ANM–116, FAA, § 39.13 [Amended] DEPARTMENT OF TRANSPORTATION Transport Airplane Directorate, 1601 2. Section 39.13 is amended by Lind Avenue, SW., Renton, Washington adding the following new airworthiness Federal Aviation Administration 98055–4056; telephone (425) 227–2797; directive: fax (425) 227–1149. 14 CFR Part 39 McDonnell Douglas: Docket 2003-NM–251- SUPPLEMENTARY INFORMATION: AD. [Docket No. 2003–NM–183–AD] Comments Invited Applicability: Model DC–9–82 (MD–82) RIN 2120–AA64 and DC–9–83 (MD–83) airplanes, and Model Interested persons are invited to participate in the making of the MD–88 airplanes; as listed in Boeing Alert Airworthiness Directives; Airbus Model proposed rule by submitting such Service Bulletin MD80–25A367, Revision 01, A330–202, –203, –223, and –243 written data, views, or arguments as dated June 14, 2002; certificated in any Airplanes, and A330–300 Series category. they may desire. Communications shall Airplanes Compliance: Required as indicated, unless identify the Rules Docket number and accomplished previously. AGENCY: Federal Aviation be submitted in triplicate to the address To prevent uncommanded movement of Administration, DOT. specified above. All communications the captain’s and first officer’s seats during received on or before the closing date takeoff and landing, which could result in ACTION: Notice of proposed rulemaking interference with the operation of the (NPRM). for comments, specified above, will be airplane and consequent temporary loss of considered before taking action on the SUMMARY: control of the airplane, accomplish the This document proposes the proposed rule. The proposals contained following: adoption of a new airworthiness in this action may be changed in light directive (AD) that is applicable to of the comments received. Inspection and Corrective Actions certain Airbus Model A330–202, –203, Submit comments using the following (a) Within 6 months after the effective date –223, and –243 airplanes, and A330– format: of this AD, perform a detailed inspection of 300 series airplanes. This proposal • Organize comments issue-by-issue. the captain’s and first officer’s seat track would require modification of the center For example, discuss a request to locking pins for sufficient engagement, and box junction and upper sections of the change the compliance time and a any applicable corrective actions by accomplishing all the actions in the center fuselage to reinforce the frame request to change the service bulletin base junction, and related corrective reference as two separate issues. Accomplishment Instructions of Boeing Alert • Service Bulletin MD80–25A367, Revision 01, action. This action is necessary to For each issue, state what specific dated June 14, 2002. Do the actions per the prevent fatigue cracking, which could change to the proposed AD is being service bulletin. Any applicable corrective result in reduced structural integrity of requested.
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• Include justification (e.g., reasons or fasteners. The service bulletin also flight hours since the date of issuance of data) for each request. specifies contacting Airbus for repair if the original Airworthiness Certificate or Comments are specifically invited on any cracking is found during the date of issuance of the Export the overall regulatory, economic, accomplishment of the modification. Certificate of Airworthiness, whichever environmental, and energy aspects of Accomplishment of the actions is first.’’ For Model A330–202, –203, the proposed rule. All comments specified in the service bulletin is –223, –243, –323, and –343 airplanes, submitted will be available, both before intended to adequately address the ‘‘Before the accumulation of 11,400 total and after the closing date for comments, identified unsafe condition. The DGAC flight cycles or 33,100 total flight hours in the Rules Docket for examination by classified this service bulletin as since the date of issuance of the original interested persons. A report mandatory and issued French Airworthiness Certificate or the date of summarizing each FAA-public contact airworthiness directive 2002–528(B), issuance of the Export Certificate of concerned with the substance of this dated October 30, 2002, to ensure the Airworthiness, whichever is first.’’ proposal will be filed in the Rules continued airworthiness of these These compliance times include a grace Docket. airplanes in France. period of 6 months after the effective Commenters wishing the FAA to date of the AD. This decision is based FAA’s Conclusions acknowledge receipt of their comments on our determination that ‘‘since the submitted in response to this action These airplane models are first flight of the airplane’’ may be must submit a self-addressed, stamped manufactured in France and are type interpreted differently by different postcard on which the following certificated for operation in the United operators. We find that our proposed statement is made: ‘‘Comments to States under the provisions of section terminology is generally understood Docket Number 2003–NM–183–AD.’’ 21.29 of the Federal Aviation within the industry and records will The postcard will be date stamped and Regulations (14 CFR 21.29) and the always exist that establish these dates returned to the commenter. applicable bilateral airworthiness with certainty. In addition, we have agreement. Pursuant to this bilateral determined that a 6-month grace period Availability of NPRMs airworthiness agreement, the DGAC has will ensure an acceptable level of safety Any person may obtain a copy of this kept us informed of the situation and is an appropriate interval of time NPRM by submitting a request to the described above. We have examined the wherein the modification can be FAA, Transport Airplane Directorate, findings of the DGAC, reviewed all accomplished during scheduled ANM–114, Attention: Rules Docket No. available information, and determined maintenance intervals for the majority 2003–NM–183–AD, 1601 Lind Avenue, that this AD action is necessary for of affected operators. SW., Renton, Washington 98055–4056. products of this type design that are The service bulletin specifies that operators may contact Airbus for Discussion certificated for operation in the United States. disposition of certain repair conditions, The Direction Ge´ne´rale de l’Aviation but this proposed AD would require Civile (DGAC), which is the Explanation of Requirements of operators to repair those conditions per airworthiness authority for France, Proposed Rule a method approved by either the FAA notified the FAA that an unsafe Since an unsafe condition has been or the DGAC (or its delegated agent). In condition may exist on certain Airbus identified that is likely to exist or light of the type of repair that would be Model A330–202, –203, –223, and –243 develop on other airplanes of the same required to address the unsafe airplanes, and A330–300 series type design registered in the United condition, and consistent with existing airplanes. The DGAC advises that, States, the proposed AD would require bilateral airworthiness agreements, we during fatigue testing, cracking initiated accomplishment of the actions specified have determined that a repair approved and propagated in the center box in the service bulletin described by either the FAA or the DGAC would junction and upper section of the previously, except as discussed below. be acceptable for compliance with this fuselage between frame (FR) 40.3 and proposed AD. FR 45 at stringers 26 through 29. Such Differences Among This Proposed AD, cracking, if not corrected, could result French Airworthiness Directive and Cost Impact in reduced structural integrity of the Service Bulletin The FAA estimates that 9 airplanes of fuselage. For Model A330–301, –322, –321, U.S. registry would be affected by this –341, and –342 airplanes, the French proposed AD, that it would take about Explanation of Relevant Service airworthiness directive and the service 67 work hours per airplane to do the Information bulletin specify doing the modification proposed modification, and that the Airbus has issued Service Bulletin of the center box junction and upper average labor rate is $65 per work hour. A330–53–3126, Revision 01, dated sections of the center fuselage before the Required parts would cost about $1,420 March 19, 2003, which describes accumulation of 13,500 flight cycles or per airplane. Based on these figures, the procedures for modification of the 39,200 flight hours ‘‘since the first flight cost impact of the modification center box junction and upper bent of the airplane, whichever is first.’’ For proposed by this AD on U.S. operators sections of the center fuselage, between Model A330–202, –203, –223, –243, is estimated to be $51,975, or $5,775 per FR 40.3 and FR 45 at stringers 26 –323, and –343 airplanes, the airplane. through 29, on the left and right sides modification is to be done before the The cost impact figure discussed of the airplane, and related corrective accumulation of 11,400 flight cycles or above is based on assumptions that no action. This modification includes 33,100 flight hours ‘‘since the first flight operator has yet accomplished any of performing rotating probe inspections of the airplane, whichever is first.’’ the proposed requirements of this AD for cracking of certain fastener holes, This proposed AD would require action, and that no operator would drilling and reaming certain fastener accomplishment of the modification at accomplish those actions in the future if holes (as a follow-on action for the following times: For Model A330– this AD were not adopted. The cost uncracked fastener holes), cold-working 301, –322, –321, –341, and –342 impact figures discussed in AD certain fastener holes, and replacing airplanes, ‘‘Before the accumulation of rulemaking actions represent only the certain existing fasteners with improved 13,500 total flight cycles or 39,200 total time necessary to perform the specific
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actions actually required by the AD. To prevent fatigue cracking, which could Issued in Renton, Washington, on March 2, These figures typically do not include result in reduced structural integrity of the 2004. incidental costs, such as the time fuselage, accomplish the following: Ali Bahrami, required to gain access and close up, Modification Acting Manager, Transport Airplane planning time, or time necessitated by Directorate, Aircraft Certification Service. other administrative actions. (a) Modify the center box junction and [FR Doc. 04–5519 Filed 3–10–04; 8:45 am] upper bent sections of the center fuselage, BILLING CODE 4910–13–P Regulatory Impact between frame (FR) 40.3 and FR 45 at stringers 26 through 29, on the left and right The regulations proposed herein sides of the airplane, by doing all the actions DEPARTMENT OF TRANSPORTATION would not have a substantial direct per the Accomplishment Instructions of effect on the States, on the relationship Airbus Service Bulletin A330–53–3126, Federal Aviation Administration between the national Government and Revision 01, dated March 19, 2003. Do the the States, or on the distribution of modification at the times specified in 14 CFR Part 39 power and responsibilities among the paragraphs (a)(1) and (a)(2) of this AD. various levels of government. Therefore, (1) For Model A330–301, –322, –321, –341, [Docket No. 2003–NM–163–AD] it is determined that this proposal and –342 airplanes: Do the modification at RIN 2120–AA64 would not have federalism implications the later of the times specified in paragraphs under Executive Order 13132. (a)(1)(i) and (a)(1)(ii) of this AD. Airworthiness Directives; Bombardier For the reasons discussed above, I (i) Before the accumulation of 13,500 total Model CL–600–2B19 (Regional Jet certify that this proposed regulation (1) flight cycles or 39,200 total flight hours since Series 100 & 440) Airplanes is not a ‘‘significant regulatory action’’ the date of issuance of the original under Executive Order 12866; (2) is not Airworthiness Certificate or the date of AGENCY: Federal Aviation a ‘‘significant rule’’ under the DOT issuance of the Export Certificate of Administration, DOT. Regulatory Policies and Procedures (44 Airworthiness, whichever is first. ACTION: Notice of proposed rulemaking FR 11034, February 26, 1979); and (3) if (ii) Within 6 months after the effective date (NPRM). promulgated, will not have a significant of this AD. SUMMARY: economic impact, positive or negative, (2) For Model A330–202, –203, –223, –243, This document proposes the on a substantial number of small entities –323, and –343 airplanes: Do the adoption of a new airworthiness under the criteria of the Regulatory modification at the later of the times directive (AD) that is applicable to Flexibility Act. A copy of the draft specified in paragraphs (a)(2)(i) and (a)(2)(ii) certain Bombardier Model CL–600– regulatory evaluation prepared for this of this AD. 2B19 (Regional Jet Series 100 & 440) action is contained in the Rules Docket. (i) Before the accumulation of 11,400 total airplanes. This proposal would require A copy of it may be obtained by flight cycles or 33,100 total flight hours since performing an inspection of the contacting the Rules Docket at the the date of issuance of the original electrical harnesses of the spoiler and location provided under the caption Airworthiness Certificate or the date of the brake pressure sensor unit on both sides of the wing root to detect any ADDRESSES. issuance of the Export Certificate of Airworthiness, whichever is first. chafing or wire damage, and repairing or List of Subjects in 14 CFR Part 39 (ii) Within 6 months after the effective date replacing any damaged or chafed of this AD. harness or wire with a new harness, as Air transportation, Aircraft, Aviation applicable. This action is necessary to safety, Safety. Previously Accomplished Actions detect and correct chafing of the The Proposed Amendment (b) Accomplishment of the modification electrical cables of the spoiler and brake per Airbus Service Bulletin A330–53–3126, pressure sensor unit on both sides of the Accordingly, pursuant to the dated October 18, 2002, is considered wing root, which could result in loss of authority delegated to me by the acceptable for compliance with the flight control system and consequent Administrator, the Federal Aviation modification required by paragraph (a) of this reduced controllability of the airplane. Administration proposes to amend part AD. This action is intended to address the 39 of the Federal Aviation Regulations identified unsafe condition. (14 CFR part 39) as follows: Repair (c) If any crack is found during DATES: Comments must be received by PART 39—AIRWORTHINESS accomplishment of the modification required April 12, 2004. DIRECTIVES by paragraph (a) of this AD, and the service ADDRESSES: Submit comments in bulletin recommends contacting Airbus for triplicate to the Federal Aviation 1. The authority citation for part 39 appropriate action: Before further flight, Administration (FAA), Transport continues to read as follows: repair per a method approved by the Airplane Directorate, ANM–114, Authority: 49 U.S.C. 106(g), 40113, 44701. Manager, International Branch, ANM–116, Attention: Rules Docket No. 2003–NM– FAA, Transport Airplane Directorate; or the 163–AD, 1601 Lind Avenue, SW., § 39.13 [Amended] Direction Ge´ne´rale de l’Aviation Civile (or its Renton, Washington 98055–4056. 2. Section 39.13 is amended by delegated agent). Comments may be inspected at this location between 9 a.m. and 3 p.m., adding the following new airworthiness Alternative Methods of Compliance directive: Monday through Friday, except Federal (d) In accordance with 14 CFR 39.19, the holidays. Comments may be submitted Airbus: Docket 2003–NM–183–AD. Manager, International Branch, ANM–116, is via fax to (425) 227–1232. Comments Applicability: A330–202, –203, –223, and authorized to approve alternative methods of may also be sent via the Internet using –243 airplanes, and A330–300 series compliance for this AD. airplanes; certificated in any category; on the following address: 9-anm- Note 1: The subject of this AD is addressed which Airbus Modification 49404 has not [email protected]. Comments sent been done. in French airworthiness directive 2002– via fax or the Internet must contain Compliance: Required as indicated, unless 528(B), dated October 30, 2002. ‘‘Docket No. 2003–NM–163–AD’’ in the accomplished previously. subject line and need not be submitted
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in triplicate. Comments sent via the must submit a self-addressed, stamped TCCA has kept the FAA informed of the Internet as attached electronic files must postcard on which the following situation described above. The FAA has be formatted in Microsoft Word 97 or statement is made: ‘‘Comments to examined the findings of TCCA, 2000 or ASCII text. Docket Number 2003–NM–163–AD.’’ reviewed all available information, and The service information referenced in The postcard will be date stamped and determined that AD action is necessary the proposed rule may be obtained from returned to the commenter. for products of this type design that are Bombardier, Inc., Canadair, Aerospace certificated for operation in the United Availability of NPRMs Group, P.O. Box 6087, Station Centre- States. ville, Montreal, Quebec H3C 3G9, Any person may obtain a copy of this Explanation of Requirements of Canada. This information may be NPRM by submitting a request to the Proposed Rule examined at the FAA, Transport FAA, Transport Airplane Directorate, Airplane Directorate, 1601 Lind ANM–114, Attention: Rules Docket No. Since an unsafe condition has been Avenue, SW., Renton, Washington; or at 2003–NM–163–AD, 1601 Lind Avenue, identified that is likely to exist or the FAA, New York Aircraft SW., Renton, Washington 98055–4056. develop on other airplanes of the same Certification Office, 1600 Stewart Discussion type design registered in the United Avenue, suite 410, Westbury, New York. Transport Canada Civil Aviation States, the proposed AD would require FOR FURTHER INFORMATION CONTACT: (TCCA), which is the airworthiness accomplishment of the actions specified Wing Chan, Aerospace Engineer, authority for Canada, notified the FAA in the service bulletin described Systems and Flight Test Branch, ANE– that an unsafe condition may exist on previously, except as discussed below. 172, FAA, New York Aircraft certain Bombardier Model CL–600– Certification Office, 1600 Stewart Difference Between Proposed AD and 2B19 (Regional Jet Series 100 & 440) Avenue, suite 410, Westbury, New York Referenced Service Bulletin airplanes. TCCA advises that it has 11590; telephone (516) 228–7311; fax received three reports of chafing of the Operators should note that, although (516) 794–5531. electrical cables of the spoiler and brake the Accomplishment Instructions of the SUPPLEMENTARY INFORMATION: pressure sensor unit (BPSU) on both referenced service bulletin describe Comments Invited sides of the wing root. The chafing procedures for completing and condition occurred where electrical submitting to the manufacturer a Interested persons are invited to cables (harnesses) are routed through comment sheet related to service participate in the making of the two misaligned adjacent lightening bulletin quality and a sheet recording proposed rule by submitting such holes in the wing box of both wings at compliance with the service bulletin, written data, views, or arguments as station 545. The condition can exist due this proposed AD would not require they may desire. Communications shall to tight routing of the harness in this those actions. The FAA does not need identify the Rules Docket number and location and movement of the harnesses this information from operators. be submitted in triplicate to the address due to wing flex and vibration. These specified above. All communications Interim Action conditions, if not corrected, could result received on or before the closing date in loss of flight control system and for comments, specified above, will be This is considered to be interim consequent reduced controllability of considered before taking action on the action until final action is identified, at the airplane. proposed rule. The proposals contained which time the FAA may consider in this action may be changed in light Explanation of Relevant Service further rulemaking. of the comments received. Information Cost Impact Submit comments using the following Bombardier has issued Alert Service The FAA estimates that 191 airplanes format: Bulletin A601R–27–101, Revision ‘A’, of U.S. registry would be affected by this • Organize comments issue-by-issue. dated October 26, 2001. The service proposed AD, that it would take For example, discuss a request to bulletin describes, among other actions, approximately 1 work hour per airplane change the compliance time and a procedures for performing a general to accomplish the proposed inspection, request to change the service bulletin visual inspection of the electrical and that the average labor rate is $65 per reference as two separate issues. harnesses of the spoiler and the BPSU • work hour. Based on these figures, the For each issue, state what specific on both sides of the wing root to detect cost impact of the proposed AD on U.S. change to the proposed AD is being any chafing or wire damage, and operators is estimated to be $12,415, or requested. repairing or replacing any damaged or • $65 per airplane, per inspection cycle. Include justification (e.g., reasons or chafed harness or wire with a new data) for each request. harness, as applicable. TCCA classified The cost impact figure discussed Comments are specifically invited on this service bulletin as mandatory and above is based on assumptions that no the overall regulatory, economic, issued Canadian airworthiness directive operator has yet accomplished any of environmental, and energy aspects of CF–2003–14, dated May 15, 2003, to the proposed requirements of this AD the proposed rule. All comments ensure the continued airworthiness of action, and that no operator would submitted will be available, both before these airplanes in Canada. accomplish those actions in the future if and after the closing date for comments, this AD were not adopted. The cost in the Rules Docket for examination by FAA’s Conclusions impact figures discussed in AD interested persons. A report This airplane model is manufactured rulemaking actions represent only the summarizing each FAA-public contact in Canada and is type certificated for time necessary to perform the specific concerned with the substance of this operation in the United States under the actions actually required by the AD. proposal will be filed in the Rules provisions of section 21.29 of the These figures typically do not include Docket. Federal Aviation Regulations (14 CFR incidental costs, such as the time Commenters wishing the FAA to 21.29) and the applicable bilateral required to gain access and close up, acknowledge receipt of their comments airworthiness agreement. Pursuant to planning time, or time necessitated by submitted in response to this action this bilateral airworthiness agreement, other administrative actions.
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Regulatory Impact Initial and Repetitive Inspections Issued in Renton, Washington, on March 2, (a) Within 500 flight hours after the 2004. The regulations proposed herein Ali Bahrami, would not have a substantial direct effective date of this AD, do a general visual inspection of the electrical harnesses of the Acting Manager, Transport Airplane effect on the States, on the relationship spoiler and the BPSU on both sides of the Directorate, Aircraft Certification Service. between the national Government and wing root to detect any chafing or wire [FR Doc. 04–5520 Filed 3–10–04; 8:45 am] the States, or on the distribution of damage, in accordance with Part A of the BILLING CODE 4910–13–P power and responsibilities among the Accomplishment Instructions of Bombardier various levels of government. Therefore, Alert Service Bulletin A601R–27–101, it is determined that this proposal Revision ‘A’, dated October 26, 2001. Repeat DEPARTMENT OF TRANSPORTATION would not have federalism implications the inspection thereafter at intervals not to under Executive Order 13132. exceed 4,000 flight hours. Federal Aviation Administration For the reasons discussed above, I Note 1: For the purposes of this AD, a certify that this proposed regulation (1) general visual inspection is defined as: ‘‘A 14 CFR Part 39 is not a ‘‘significant regulatory action’’ visual examination of an interior or exterior under Executive Order 12866; (2) is not area, installation, or assembly to detect [Docket No. 2001–SW–33–AD] a ‘‘significant rule’’ under the DOT obvious damage, failure, or irregularity. This RIN 2120–AA64 Regulatory Policies and Procedures (44 level of inspection is made from within FR 11034, February 26, 1979); and (3) if touching distance unless otherwise specified. Airworthiness Directives; Eurocopter A mirror may be necessary to enhance visual France Model SA–365N, SA–365N1, promulgated, will not have a significant access to all exposed surfaces in the economic impact, positive or negative, AS–365N2, AS 365 N3, SA–366G1 inspection area. This level of inspection is Helicopters on a substantial number of small entities made under normally available lighting under the criteria of the Regulatory conditions such as daylight, hangar lighting, AGENCY: Federal Aviation Flexibility Act. A copy of the draft flashlight, or droplight and may require Administration, DOT. regulatory evaluation prepared for this removal or opening of access panels or doors. ACTION: Supplemental notice of action is contained in the Rules Docket. Stands, ladders, or platforms may be required A copy of it may be obtained by to gain proximity to the area being checked.’’ proposed rulemaking; reopening of contacting the Rules Docket at the comment period. Corrective Actions location provided under the caption SUMMARY: This document revises an (b) If any damaged or chafed electrical ADDRESSES. earlier proposed airworthiness directive harness or wire is found during any List of Subjects in 14 CFR Part 39 inspection required by paragraph (a) of this (AD) for Eurocopter France (Eurocopter) AD, before further flight, do either paragraph Model SA–365N, SA–365N1, AS– Air transportation, Aircraft, Aviation 365N2, AS 365 N3, SA–366G1 safety, Safety. (b)(1) or (b)(2) of this AD. (1) Replace any damaged or chafed harness helicopters that would have required The Proposed Amendment or wire with a new harness, in accordance inspecting the 9-degree frame flange with Part C or Part D of the Accomplishment (frame) for the correct edge distance of Accordingly, pursuant to the Instructions of Bombardier Alert Service the four attachment holes for the authority delegated to me by the Bulletin A601R–27–101, Revision ‘A’, dated stretcher support and for a crack, and Administrator, the Federal Aviation October 26, 2001, as applicable. repairing the frame, if necessary. That Administration proposes to amend part (2) Repair any damaged or chafed electrical proposal was prompted by a quality 39 of the Federal Aviation Regulations harness in accordance with Part B of the control check that revealed some (14 CFR part 39) as follows: Accomplishment Instructions of Bombardier stretcher attachment holes were Alert Service Bulletin A601R–27–101, improperly located on the frame where PART 39—AIRWORTHINESS Revision ‘A’, dated October 26, 2001. Within there was insufficient edge distance. DIRECTIVES 4,000 flight hours after the repair is done, do paragraph (b)(1) of this AD. This action revises the proposed rule by 1. The authority citation for part 39 requiring the same actions as the continues to read as follows: Credit for Earlier Service Bulletin previous proposal, but adds recurring (c) Replacements and repairs accomplished inspections and refers to an engineering Authority: 49 U.S.C. 106(g), 40113, 44701. before the effective date of this AD in report that lists approved U.S. § 39.13 [Amended] accordance with Bombardier Alert Service alternative fasteners and materials that Bulletin A601R–27–101, Initial Issue, dated may be used in any required repairs. 2. Section 39.13 is amended by April 17, 2000, are acceptable for compliance adding the following new airworthiness The actions specified by this proposed with the requirements of paragraph (b) of this AD are intended to prevent failure of the directive: AD. frame due to a crack at the stretcher Bombardier, Inc. (Formerly Canadair): Exception to Service Bulletin support attachment holes, loss of a Docket 2003–NM–163–AD. (d) Although the service bulletin passenger door, damage to the rotor Applicability: Model CL–600–2B19 referenced in this AD specifies to submit system, and subsequent loss of control (Regional Jet Series 100 & 440) airplanes, certain information to the manufacturer, this of the helicopter. serial numbers 7003 through 7067 inclusive, AD does not include such a requirement. and 7069 through 7351 inclusive, certificated DATES: Comments must be received on in any category. Alternative Methods of Compliance or before May 10, 2004. Compliance: Required as indicated, unless (e) In accordance with 14 CFR 39.19, the ADDRESSES: Submit comments in accomplished previously. Manager, New York Aircraft Certification triplicate to the Federal Aviation To detect and correct chafing of the Office, FAA, is authorized to approve Administration (FAA), Office of the electrical cables of the spoiler and brake alternative methods of compliance for this pressure sensor unit (BPSU) on both sides of Regional Counsel, Southwest Region, AD. the wing root, which could result in loss of Attention: Rules Docket No. 2001–SW– flight control system and consequent reduced Note 2: The subject of this AD is addressed 33–AD, 2601 Meacham Blvd., Room controllability of the airplane, accomplish in Canadian airworthiness directive CF– 663, Fort Worth, Texas 76137. You may the following: 2003–14, dated May 15, 2003. also send comments electronically to
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the Rules Docket at the following 365N2, AS 365 N3, SA–366G1 parts would cost approximately $200 address: [email protected]. helicopters was published in the per helicopter for the repair of the 15 Comments may be inspected at the Federal Register on December 18, 2002 helicopters. Based on these figures, the Office of the Regional Counsel between (67 FR 77444). That proposal would total cost impact of the proposed AD on 9 a.m. and 3 p.m., Monday through have required, within 50 hours time-in- U.S. operators is estimated to be Friday, except Federal holidays. service (TIS), inspecting the frame for $19,250, assuming each operator repairs The service information referenced in the correct edge distance of the four the helicopter rather than performs the the proposed rule may be obtained from attachment holes of the stretcher repetitive inspection. American Eurocopter Corporation, 2701 support and for a crack, and repairing The regulations proposed herein Forum Drive, Grand Prairie, Texas the frame, if necessary. The repair was would not have a substantial direct 75053–4005, telephone (972) 641–3460, to be approved by the Manager, effect on the States, on the relationship fax (972) 641–3527. This information Regulations Group, Rotorcraft between the national Government and may be examined at the FAA, Office of Directorate, FAA. That NPRM was the States, or on the distribution of the Regional Counsel, Southwest prompted by a quality control check power and responsibilities among the Region, 2601 Meacham Blvd., Room that revealed some stretcher attachment various levels of government. Therefore, 663, Fort Worth, Texas. holes were improperly located on the it is determined that this proposal FOR FURTHER INFORMATION CONTACT: Gary frame where there was insufficient edge would not have federalism implications Roach, Aviation Safety Engineer, FAA, distance. That condition, if not under Executive Order 13132. Rotorcraft Directorate, Regulations and corrected, could result in failure of the For the reasons discussed above, I Guidance Group, Fort Worth, Texas frame due to a crack at the stretcher certify that this proposed regulation (1) 76193–0111, telephone (817) 222–5130, support attachment holes, loss of a is not a ‘‘significant regulatory action’’ fax (817) 222–5961. passenger door, damage to the rotor under Executive Order 12866; (2) is not system, and subsequent loss of control a ‘‘significant rule’’ under the DOT SUPPLEMENTARY INFORMATION: of the helicopter. Regulatory Policies and Procedures (44 Comments Invited Since the issuance of that NPRM, we FR 11034, February 26, 1979); and (3) if have decided to allow the use of U.S.- promulgated, will not have a significant Interested persons are invited to available alternative fasteners and economic impact, positive or negative, participate in the making of the materials. Therefore, we determined on a substantial number of small entities proposed rule by submitting such that this proposal should reference an under the criteria of the Regulatory written data, views, or arguments as Addendum to Eurocopter France AS Flexibility Act. A copy of the draft they may desire. Communications 365 Alert Service Bulletin 53.00.43, regulatory evaluation prepared for this should identify the Rules Docket dated January 31, 2001, that provides for action is contained in the Rules Docket. number and be submitted in triplicate to use of U.S.-available alternative A copy of it may be obtained by the address specified above. All fasteners and materials. Additionally, contacting the Rules Docket at the communications received on or before we have determined that it is location provided under the caption the closing date for comments, specified unnecessary to require installation of a ADDRESSES. above, will be considered before taking reinforcing angle, and it has been action on the proposed rule. The replaced with a 550-hour repetitive List of Subjects in 14 CFR Part 39 proposals contained in this document inspection for those helicopters that Air transportation, Aircraft, Aviation may be changed in light of the have an edge distance on the frame of safety, Safety. comments received. less than 5mm, are not cracked, and Comments are specifically invited on have not been repaired. The Proposed Amendment the overall regulatory, economic, Since this change expands the scope Accordingly, pursuant to the environmental, and energy aspects of of the originally proposed rule, we have authority delegated to me by the the proposed rule. All comments determined that it is necessary to reopen Administrator, the Federal Aviation submitted will be available, both before the comment period to provide Administration proposes to amend part and after the closing date for comments, additional opportunity for public 39 of the Federal Aviation Regulations in the Rules Docket for examination by comment. (14 CFR part 39) as follows: interested persons. A report On July 10, 2002, the FAA issued a summarizing each FAA-public contact new version of 14 CFR part 39 (67 FR PART 39—AIRWORTHINESS concerned with the substance of this 47997, July 22, 2002), which governs the DIRECTIVES FAA’s AD system. The regulation now proposal will be filed in the Rules 1. The authority citation for part 39 includes material that relates to altered Docket. continues to read as follows: Commenters wishing the FAA to products, special flight permits, and acknowledge receipt of their mailed alternative methods of compliance. Authority: 49 U.S.C. 106(g), 40113, 44701. comments submitted in response to this Because we have now included this § 39.13 [Amended] proposal must submit a self-addressed, material in part 39, we no longer need 2. Section 39.13 is amended by stamped postcard on which the to include it in each individual AD. adding a new airworthiness directive to The FAA estimates that 45 helicopters following statement is made: read as follows: ‘‘Comments to Docket No. 2001–SW– of U.S. registry would be affected by this 33–AD.’’ The postcard will be date proposed AD, that it would take Eurocopter France: Docket No. 2001–SW– stamped and returned to the approximately 2 work hours to visually 33–AD. commenter. inspect each helicopter and 10 work Applicability: Model SA–365N, SA–365N1, hours to repair an estimated 10 AS–365N2, AS 365 N3, and SA–366G1 Discussion helicopters to correct edge distance only helicopters, certificated in any category. Compliance: Required as indicated, unless A proposal to amend part 39 of the and 12 work hours to repair edge accomplished previously. Federal Aviation Regulations (14 CFR distance and cracks for an estimated 5 To prevent failure of the 9-degree frame part 39) to add an AD for Eurocopter helicopters, and that the average labor flange (frame) due to a crack at the stretcher Model SA–365N, SA–365N1, AS– rate is $65 per work hour. Required support attachment holes, loss of a passenger
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door, damage to the rotor system, and DEPARTMENT OF TRANSPORTATION Airbus, 1 Rond Point Maurice Bellonte, subsequent loss of control of the helicopter, 31707 Blagnac Cedex, France. This accomplish the following: Federal Aviation Administration information may be examined at the (a) Within 50 hours time-in-service (TIS), FAA, Transport Airplane Directorate, measure the edge distance of each 9-degree 14 CFR Part 39 1601 Lind Avenue, SW., Renton, frame at the four attachment holes of the [Docket No. 2000–NM–70–AD] Washington. stretcher support at Z2321 as shown in detail FOR FURTHER INFORMATION CONTACT: ‘‘A’’ of Figure 1 in Eurocopter France AS 365 RIN 2120–AA64 Tim Alert Service Bulletin 53.00.43, dated Dulin, Aerospace Engineer, January 31, 2001, for the Models SA–365N, Airworthiness Directives; Airbus Model International Branch, ANM–116, FAA, SA–365N1, AS–365N2, and AS 365 N3 (365 A319, A320, and A321 Series Airplanes Transport Airplane Directorate, 1601 ASB) or Eurocopter France AS 366 Alert Lind Avenue, SW., Renton, Washington AGENCY: Federal Aviation 98055–4056; telephone (425) 227–2141; Service Bulletin 53.06, dated June 1, 2001, Administration, DOT. for the Model SA366G–1 (366 ASB) fax (425) 227–1149. helicopters. Inspect the area around the ACTION: Supplemental notice of SUPPLEMENTARY INFORMATION: proposed rulemaking; reopening of attachment holes for a crack. Comments Invited (1) If the edge distance of all attachment comment period. Interested persons are invited to holes is equal to or more than 5 mm (0.197 SUMMARY: This document revises an inch) and no crack is present, no further participate in the making of the earlier proposed airworthiness directive proposed rule by submitting such action is required by this AD. (AD), applicable to all Airbus Model (2) If the edge distance is less than 5 mm written data, views, or arguments as A319, A320, and A321 series airplanes, they may desire. Communications shall and no crack is present, reinspect the area at that would have required operators to intervals not to exceed 550 hours TIS and identify the Rules Docket number and revise the Airworthiness Limitations modify the frame no later than the next 500 be submitted in triplicate to the address section (ALS) of the Instructions for hour inspection in accordance with specified above. All communications Continued Airworthiness to incorporate paragraph 2.B.2. of the 365 ASB or 366 ASB, received on or before the closing date service life limits for certain items and as appropriate. for comments, specified above, will be inspections to detect fatigue cracking, (3) If the frame is cracked, before further considered before taking action on the flight, repair the frame. Acceptable U.S. accidental damage, or corrosion in proposed rule. The proposals contained alternatives to the fasteners and materials certain structures. This new action in this action may be changed in light needed to perform repairs or modifications would require operators to revise the of the comments received. are listed in American Eurocopter ALS of the Instructions for Continued Submit comments using the following Engineering Report No. AEC/03R–E–005, Airworthiness to incorporate new and format: ‘‘Addendum ASB 53.00.42 and 53.00.43 more restrictive service life limits for • certain items, and new and more Organize comments issue-by-issue. AS365’’, dated January 29, 2003. For example, discuss a request to (4) Modifying or repairing the frame restrictive inspections to detect fatigue cracking, accidental damage, or change the compliance time and a constitutes terminating action for the request to change the service bulletin requirements of this AD, which is attached to corrosion in certain structures. The actions specified by this new proposed reference as two separate issues. the 365 ASB. • For each issue, state what specific AD are intended to ensure the (b) To request a different method of change to the proposed AD is being continued structural integrity of these compliance or a different compliance time requested. airplanes. This action is intended to for this AD, follow the procedures in 14 CFR • Include justification (e.g., reasons or address the identified unsafe condition. 39.19. Contact the Safety Management Group, data) for each request. Rotorcraft Directorate, FAA, for information DATES: Comments must be received by Comments are specifically invited on about previously approved alternative April 5, 2004. the overall regulatory, economic, methods of compliance. ADDRESSES: Submit comments in environmental, and energy aspects of Note: The subject of this AD is addressed triplicate to the Federal Aviation the proposed rule. All comments in Direction Generale De L’Aviation Civile Administration (FAA), Transport submitted will be available, both before (France) AD No. 2001–283–025(A), dated Airplane Directorate, ANM–114, and after the closing date for comments, July 11, 2001, for Model SA366 helicopters, Attention: Rules Docket No. 2000–NM– in the Rules Docket for examination by and AD No. 2001–061–053(A), dated 70–AD, 1601 Lind Avenue, SW., interested persons. A report February 21, 2001, for Model AS 365N, N1, Renton, Washington 98055–4056. summarizing each FAA-public contact N2, and N3 helicopters. Comments may be inspected at this concerned with the substance of this location between 9 a.m. and 3 p.m., proposal will be filed in the Rules Issued in Fort Worth, Texas, on March 4, Monday through Friday, except Federal Docket. 2004. holidays. Comments may be submitted Commenters wishing the FAA to Kim Smith, via fax to (425) 227–1232. Comments acknowledge receipt of their comments Acting Manager, Rotorcraft Directorate, may also be sent via the Internet using submitted in response to this action Aircraft Certification Service. the following address: 9-anm- must submit a self-addressed, stamped [FR Doc. 04–5521 Filed 3–10–04; 8:45 am] [email protected]. Comments sent postcard on which the following BILLING CODE 4910–13–P via fax or the Internet must contain statement is made: ‘‘Comments to ‘‘Docket No. 2000–NM–70–AD’’ in the Docket Number 2000–NM–70–AD.’’ The subject line and need not be submitted postcard will be date stamped and in triplicate. Comments sent via the returned to the commenter. Internet as attached electronic files must be formatted in Microsoft Word 97 or Availability of NPRMs 2000 or ASCII text. Any person may obtain a copy of this The service information referenced in NPRM by submitting a request to the the proposed rule may be obtained from FAA, Transport Airplane Directorate,
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ANM–114, Attention: Rules Docket No. A320/A321 ALI document, AI/SE–M4/ revision to the ALS that includes 2000–NM–70–AD, 1601 Lind Avenue, 95A.0252/96, Issue 6, dated May 15, reduced life limits, or new or different SW., Renton, Washington 98055–4056. 2003; which specify new and more structural inspection requirements. restrictive inspections for significant These revisions then are mandatory for Discussion structural items (SSIs). Accomplishment operators under section 91.403(c) of the A proposal to amend part 39 of the of the actions specified in these Federal Aviation Regulations (14 CFR Federal Aviation Regulations (14 CFR documents is intended to adequately 91.403), which prohibits operation of an part 39) to add an airworthiness address the identified unsafe condition. airplane for which airworthiness directive (AD), applicable to all Airbus limitations have been issued unless the Conclusion Model A319, A320, and A321 series inspection intervals specified in those airplanes, was published as a notice of Since this proposed AD would limitations have been complied with. proposed rulemaking (NPRM) in the mandate adherence to the new and more After that document is revised, as Federal Register on November 3, 2000 restrictive life limits, and new and more required, and the AD has been fully (65 FR 66197). That NPRM would have restrictive inspections; this proposed complied with, the life limit or required operators to revise the action would expand the scope of the structural inspection change remains Airworthiness Limitations section (ALS) earlier proposed AD. Therefore, the enforceable as a part of the of the Instructions for Continued FAA has determined that it is necessary airworthiness limitations. (This is Airworthiness to incorporate service life to reopen the comment period to analogous to ADs that require changes limits for certain items and inspections provide additional opportunity for to the Limitations Section of the to detect fatigue cracking, accidental public comment. Airplane Flight Manual.) damage, or corrosion in certain structures. That NPRM was prompted Explanation of Change to Compliance Requiring a revision of the by issuance of Revision 1 to section 9– Time airworthiness limitations, rather than requiring individual inspections, is 1 (Life Limited/Monitored Parts) of the We have changed the compliance advantageous for operators because it Airbus Industrie A319/A320/A321 time for revising the ALS of the allows them to record AD compliance Maintenance Planning Document, Instructions for Continued status only once—at the time they make which specifies new or more restrictive Airworthiness from 30 days to 2 the revision—rather than after every life limits. That NPRM was also months. This change reflects the inspection. It also has the advantage of prompted by issuance of Issue 3 of the compliance time listed in French keeping all airworthiness limitations, Airbus Industrie Airworthiness airworthiness directive F–2004–18, whether imposed by original Limitations Items (ALI) document AI/ dated February 4, 2004, and in French certification or by AD, in one place SE–M4/95A.0252/96, dated May 27, airworthiness directive F–2004–032, within the operator’s maintenance 1999, which specifies new or more dated February 18, 2004. restrictive compliance times for program, thereby reducing the risk of structural inspection. Fatigue cracking, Explanation of Action Taken by the non-compliance because of oversight or accidental damage, or corrosion in FAA confusion. certain structure, if not corrected, could In accordance with airworthiness Changes to 14 CFR Part 39/Effect on the result in reduced structural integrity of standards requiring ‘‘damage tolerance Proposed AD the airplanes. assessments’’ for transport category airplanes (§ 25.1529 of the Federal On July 10, 2002, the FAA issued a Actions Since Issuance of Previous Aviation Regulations (14 CFR 25.1529), new version of 14 CFR part 39 (67 FR Proposal and the Appendices referenced in that 47997, July 22, 2002), which governs the Since issuance of the previous section), all products certificated to FAA’s airworthiness directives system. proposal, the Direction Ge´ne´rale de comply with that section must have The regulation now includes material l’Aviation Civile (DGAC), which is the Instructions for Continued that relates to altered products, special airworthiness authority for France, has Airworthiness (or, for some products, flight permits, and alternative methods issued French airworthiness directives maintenance manuals) that include an of compliance. Because we have now F–2004–018, dated February 4, 2004; ALS. That section must set forth: included this material in part 39, we no and F–2004–032, dated February 18, • Mandatory replacement times for longer need to include it in each 2004. These French ADs mandate structural components, individual AD. Therefore, paragraph (d) Revision 6 the ALS of the Instructions • Structural inspection intervals, and and Note 1 of the original NPRM are not for Continued Airworthiness, which • Related approved structural included in this supplemental NPRM, introduces new and more restrictive life inspection procedures necessary to and paragraph (c) of the original NPRM limits, and new and more restrictive show compliance with the damage- has been revised and is included as inspections and inspection intervals. tolerance requirements. paragraph (d) of this supplemental Compliance with the terms specified NPRM. Explanation of Relevant Service in the ALS is required by sections 43.16 Change to Labor Rate Estimate Information (for persons maintaining products) and Airbus has issued Section 9–1, ‘‘Life 91.403 (for operators) of the Federal We have reviewed the figures we have Limits/Monitored Parts,’’ Revision 06, Aviation Regulations (14 CFR 43.16 and used over the past several years to dated June 13, 2003, of Airbus A318/ 91.403). calculate AD costs to operators. To A319/A320/A321 Maintenance In order to require compliance with account for various inflationary costs in Planning Document (MPD), which these inspection intervals and life the airline industry, we find it necessary specifies new and more restrictive life limits, the FAA must engage in to increase the labor rate used in these limits for certain items. Airbus has also rulemaking, namely the issuance of an calculations from $60 per work hour to issued Section 9–2, ‘‘Airworthiness AD. For products certificated to comply $65 per work hour. The cost impact Limitation Items,’’ Revision 06, dated with the referenced part 25 information, below, reflects this June 13, 2003, of the A318/A319/A320/ requirements, it is within the authority increase in the specified hourly labor A321 MPD; and Airbus A318/A319/ of the FAA to issue an AD requiring a rate.
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Cost Impact 39 of the Federal Aviation Regulations Issued in Renton, Washington, on March 2, 2004. There are approximately 605 (14 CFR part 39) as follows: Ali Bahrami, airplanes of U.S. registry that would be PART 39—AIRWORTHINESS Acting Manager, Transport Airplane affected by this proposed AD. It would DIRECTIVES take approximately 1 work hour per Directorate, Aircraft Certification Service. [FR Doc. 04–5457 Filed 3–10–04; 8:45 am] airplane to accomplish the proposed 1. The authority citation for part 39 revision to the ALS, at an average labor continues to read as follows: BILLING CODE 4910–13–P rate of $65 per work hour. Based on these figures, the cost impact of the Authority: 49 U.S.C. 106(g), 40113, 44701. proposed AD on U.S. operators is § 39.13 [Amended] estimated to be $39,325, or $65 per DEPARTMENT OF THE TREASURY airplane. 2. Section 39.13 is amended by The cost impact figure discussed adding the following new airworthiness Internal Revenue Service above is based on assumptions that no directive: operator has yet accomplished any of Airbus: Docket 2000–NM–70–AD. 26 CFR Part 1 the proposed requirements of this AD Applicability: All Model A319, A320, and action, and that no operator would A321 series airplanes; certificated in any [REG–136890–02] accomplish those actions in the future if category. this AD were not adopted. The cost Compliance: Required as indicated, unless RIN 1545–BA90 impact figures discussed in AD accomplished previously. rulemaking actions represent only the To ensure continued structural integrity of Transfers To Provide for Satisfaction time necessary to perform the specific these airplanes, accomplish the following: of Contested Liabilities; Hearing actions actually required by the AD. Airworthiness Limitations Revision These figures typically do not include (a) For all airplanes: Within 2 months after AGENCY: Internal Revenue Service (IRS), incidental costs, such as the time Treasury. required to gain access and close up, the effective date of this AD, revise the Airworthiness Limitations Section (ALS) of planning time, or time necessitated by ACTION: Cancellation of notice of public the Instructions for Continued Airworthiness hearing on proposed rulemaking. other administrative actions. by incorporating into the ALS sub-Section 9– Regulatory Impact 1–2, ‘‘Life Limits/Monitored Parts,’’ and sub- Section 9–1–3, ‘‘Demonstrated Fatigue Life SUMMARY: This document provides The regulations proposed herein Parts,’’ both Revision 06, dated June 13, 2003, notice of cancellation of a public would not have a substantial direct of the Airbus A318/A319/A320/A321 hearing on proposed rulemaking effect on the States, on the relationship Maintenance Planning Document. relating to transfers to provide for between the national Government and (b) For all airplanes except Model A319 satisfaction of contested liabilities. the States, or on the distribution of series airplanes on which Airbus power and responsibilities among the Modification 28238, 28162, and 28342 was DATES: The public hearing originally various levels of government. Therefore, incorporated during production: Within 2 scheduled for Tuesday, March 23, 2004, it is determined that this proposal months after the effective date of this AD, at 10 a.m. is cancelled. revise the ALS of the Instructions for would not have federalism implications FOR FURTHER INFORMATION CONTACT: Continued Airworthiness by incorporating Guy under Executive Order 13132. R. Traynor, Procedures and For the reasons discussed above, I into the ALS sub-Section 9–2, ‘‘Airworthiness Limitation Items,’’ Revision Administration, Publications & certify that this proposed regulation (1) 6, dated June 13, 2003, or the Airbus A318/ Regulations Branch, at (202) 622–3693 is not a ‘‘significant regulatory action’’ A319/A320/A321 Maintenance Planning (not a toll-free number). under Executive Order 12866; (2) is not Document (MPD); and Airbus A318/A319/ a ‘‘significant rule’’ under the DOT A320/A321 Airworthiness Limitation Items SUPPLEMENTARY INFORMATION: A notice Regulatory Policies and Procedures (44 AI/SE–M4/95A.0252/96, Issue 6, dated May of proposed rulemaking and notice of FR 11034, February 26, 1979); and (3) if 15, 2003 (approved by the Direction Ge´ne´rale public hearing that appeared in the promulgated, will not have a significant de l’Aviation Civile (DGAC) on July 15, Federal Register on November 21, 2003 economic impact, positive or negative, 2003). (68 FR 65645), announced that a public on a substantial number of small entities (c) Except as provided by paragraph (d) of hearing was scheduled for March 23, under the criteria of the Regulatory this AD: After the actions specified in 2004 at 10 a.m., in the auditorium of the Flexibility Act. A copy of the draft paragraphs (a) and (b) of this AD have been Internal Revenue Service, 1111 regulatory evaluation prepared for this accomplished, no alternative life limits, Constitution Avenue NW., Washington, inspections, or inspection intervals may be action is contained in the Rules Docket. DC. The subject of the public hearing is A copy of it may be obtained by approved for the structural elements specified in the documents listed in proposed regulations under section 461 contacting the Rules Docket at the paragraphs (a) and (b) of this AD. of the Internal Revenue Code. The location provided under the caption public comment period for these ADDRESSES. Alternative Methods of Compliance proposed regulations expired on List of Subjects in 14 CFR Part 39 (d) In accordance with 14 CFR 39.19, the February 19, 2004. Manager, International Branch, ANM–116, Air transportation, Aircraft, Aviation FAA, Transport Airplane Directorate, is The notice of proposed rulemaking safety, Safety. authorized to approve alternative methods of and notice of public hearing, instructed compliance for this AD. those interested in testifying at the The Proposed Amendment Note 1: The subject of this AD is addressed public hearing to submit a request to Accordingly, pursuant to the in French airworthiness directive F–2004– speak and an outline of topics to be authority delegated to me by the 018, dated February 4, 2004; and in French addressed by March 2, 2004. As of Administrator, the Federal Aviation airworthiness directive F–2004–032, dated March 8, 2004, no one has requested to Administration proposes to amend part February 18, 2004. speak. Therefore, the public hearing
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scheduled for March 23, 2004 is SUPPLEMENTARY INFORMATION: FOR FURTHER INFORMATION CONTACT cancelled. section of this preamble. Background Guy R. Traynor, The rules of 26 CFR 601.601(a)(3) Temporary regulations in the Rules apply to the hearing. Federal Register Certifying Officer, and Regulations section of this issue of Publications & Regulations Branch, Legal the Federal Register amend the Income Persons who wish to present oral Processing Division, Associate Chief Counsel comments at the hearing must submit (Procedures & Administration). Tax Regulations (26 CFR part 1) relating written comments and an outline of the [FR Doc. 04–5562 Filed 3–10–04; 8:45 am] to section 45D. The temporary topics to be discussed and the time to BILLING CODE 4830–01–P regulations provide guidance for taxpayers claiming the new markets tax be devoted to each topic (preferably a credit under section 45D. The text of signed original and eight (8) copies) by DEPARTMENT OF THE TREASURY those regulations also serves as the text May 10, 2004. A period of 10 minutes of these proposed regulations. The will be allotted to each person for Internal Revenue Service preamble to the temporary regulations making comments. An agenda showing explains the amendments. the scheduling of the speakers will be 26 CFR Part 1 Special Analyses prepared after the deadline for receiving [REG–115471–03] outlines has passed. Copies of the It has been determined that this notice agenda will be available free of charge RIN 1545–BC03 of proposed rulemaking is not a at the hearing. significant regulatory action as defined New Markets Tax Credit Amendments in Executive Order 12866. Therefore, a Drafting Information regulatory assessment is not required. It AGENCY: Internal Revenue Service (IRS), The principal author of these also has been determined that section Treasury. regulations is Paul F. Handleman, Office ACTION: Notice of proposed rulemaking 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply of the Associate Chief Counsel by cross-reference to temporary (Passthroughs and Special Industries), regulations and notice of public hearing. to these regulations, and because the regulations do not impose a new IRS. However, other personnel from the SUMMARY: In the Rules and Regulations collection of information on small IRS and Treasury Department section of this issue of the Federal entities, the Regulatory Flexibility Act participated in their development. Register, the IRS is issuing revised (5 U.S.C. chapter 6) does not apply. List of Subjects in 26 CFR Part 1 temporary regulations relating to the Pursuant to section 7805(f) of the new markets tax credit. The text of those Internal Revenue Code, this notice of Income taxes, Reporting and regulations also serves as the text of proposed rulemaking will be submitted recordkeeping requirements. these proposed regulations. This to the Chief Counsel for Advocacy of the document also provides notice of a Small Business Administration for Proposed Amendments to the public hearing on these proposed comment on their impact on small Regulations regulations. business. Accordingly, 26 CFR part 1 is DATES: Written or electronic comments Comments and Public Hearing proposed to be amended as follows: must be received by May 10, 2004. Outlines of topics to be discussed at the Before these proposed regulations are PART 1—INCOME TAXES public hearing scheduled for adopted as final regulations, Wednesday, June 2, 2004, must be consideration will be given to any Paragraph 1. The authority citation received by May 10, 2004. written comments (a signed original and for part 1 continues to read in part as ADDRESSES: Send submissions to: eight (8) copies) or electronic comments follows: CC:PA:LPD:PR (REG–115471–03), room that are submitted timely to the IRS. 5203, Internal Revenue Service, POB Comments are requested on all aspects Authority: 26 U.S.C. 7805 * * * 7604, Ben Franklin Station, Washington, of the proposed regulations. In addition, Par. 2. Section 1.45D–1 is amended as DC 20044. Alternatively, submissions the IRS and Treasury Department follows: may be hand delivered Monday through specifically request comments on the Friday between the hours of 8 a.m. and clarity of the proposed regulations and § 1.45D–1 New markets tax credit. 4 p.m. to: CC:PA:LPD:PR (REG–115471– how they can be revised to be more 03), Courier’s Desk, Internal Revenue easily understood. All comments will be [The text of the amendments to this Service, 1111 Constitution Avenue, available for public inspection and proposed section is the same as the text NW., Washington, DC, or sent copying. of the amendments to ‘‘1.45D–1T electronically via the IRS Internet site at A public hearing has been scheduled published elsewhere in this issue of the http://www.irs.gov/regs. The public for Wednesday, June 2, 2004, at 10 a.m. Federal Register.] hearing will be held in IRS Auditorium, in the IRS Auditorium, Internal Revenue Mark E. Matthews, Internal Revenue Building, 1111 Building, 1111 Constitution Avenue, Constitution Avenue, NW., Washington, Deputy Commissioner for Services and NW., Washington DC. All visitors must Enforcement. DC. present photo identification to enter the [FR Doc. 04–5561 Filed 3–10–04; 8:45 am] FOR FURTHER INFORMATION CONTACT: building. Because of access restrictions, Concerning the regulations, Paul F. visitors will not be admitted beyond the BILLING CODE 4830–01–P Handleman or Lauren R. Taylor, (202) immediate entrance area at the 622–3040; concerning submission of Constitution Avenue entrance more comments, the hearing, and/or to be than 30 minutes before the hearing placed on the building access list to starts. For information about having attend the hearing, Lanita Van Dyke, your name placed on the building (202) 622–7180 (not toll-free numbers). access list to attend the hearing, see the
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DEPARTMENT OF THE INTERIOR FOR FURTHER INFORMATION CONTACT: Mr. At section 15–505(d)(6), the words ‘‘in George Rieger, Telephone: (412) 937– a timely manner’’ are added to the end Office of Surface Mining Reclamation 2153. Internet: [email protected]. of the provision as follows: and Enforcement (6) The Department shall review all SUPPLEMENTARY INFORMATION: aspects of the application, including 30 CFR Part 920 I. Background on the Maryland Program information pertaining to any other II. Description of the Proposed Amendment [MD–053–FOR] permit required from the Department for III. Public Comment Procedures the proposed strip mining operation in IV. Procedural Determinations Maryland Regulatory Program a timely manner. Section 15–505(d)(7) is amended by I. Background on the Maryland AGENCY: Office of Surface Mining adding new (7)(I)(1), (7)(I)(2), (7)(I)(2)(A) Program Reclamation and Enforcement (OSM), (7)(I)(2)(B), and (7)(III). As amended, Interior. Section 503(a) of the Act permits a section 15–505(d)(7) provides as ACTION: Proposed rule; public comment State to assume primacy for the follows: period and opportunity for public regulation of surface coal mining and (7)(I) Upon completion of the review hearing on proposed amendments. reclamation operations on non-Federal required by paragraph (6) of this and non-Indian lands within its borders subsection, the Department shall grant, SUMMARY: We are announcing receipt of by demonstrating that its program require modification of, or deny the a proposed amendment to the Maryland includes, among other things, ‘‘*** a application for a permit and notify the regulatory program under the Surface State law which provides for the applicant and any participant to a Mining Control and Reclamation Act of regulation of surface coal mining and public informational hearing, in writing, 1977 (SMCRA or the Act). The program reclamation operations in accordance of its decision: amendment consists of changes to the with the requirements of the Act’; and 1. Within 90 days after the date the Annotated Code of Maryland as rules and regulations consistent with Department determines that an contained in House Bill 893. The regulations issued by the Secretary application for a new permit or an amendment requires the Department of pursuant to the Act * * *’’ See 30 application for permit revision that the Environment to take action for U.S.C. 1253(a)(1) and (7). On the basis proposes significant alterations in the permit applications, permit revisions, of these criteria, the Secretary of the permit is complete; or and revised applications within certain Interior conditionally approved the 2. Within 45 days after receiving: time periods. The amendment is Maryland program on December 1, A. A revised application for a new intended to require the timely review of 1980. You can find background permit; or applications for open-pit mining information on the Maryland program, B. An application for a permit permits. including the Secretary’s findings, the revision that does not propose significant alterations in the permit. DATES: We will accept written disposition of comments, and (II) The applicant for a permit shall comments on this amendment until 4 conditions of approval in the December have the burden of establishing that the p.m. (local time), on April 12, 2004. If 1, 1980, Federal Register (45 FR 79431). application is in compliance with all of requested, we will hold a public hearing You can also find later actions the requirements of this subtitle and the on the amendment on April 5, 2004. We concerning Maryland’s program and rules and regulations issued under this will accept requests to speak at a program amendments at 30 CFR 920.12, subtitle. hearing until 4 p.m. (local time), on 920.15, and 920.16. (III) The Department may provide for March 26, 2004. II. Description of the Proposed one extension of the deadlines in ADDRESSES: You should mail or hand- Amendment subparagraph (I) of this paragraph for up deliver written comments and requests to 30 days by notifying the applicant in to speak at the hearing to Mr. George By letter dated January 7, 2004 writing prior to the expiration of the Rieger at the address listed below. (Administrative Record Number MD– original deadlines. You may review copies of the 586–00), Maryland sent us an Maryland program, this amendment, a amendment to its program under III. Public Comment Procedures listing of any scheduled public hearings, SMCRA (30 U.S.C. 1201 et seq.). Under the provisions of 30 CFR and all written comments received in Maryland sent the amendment to 732.17(h), we are seeking your response to this document at the include changes made at its own comments on whether the amendment addresses listed below during normal initiative. The amendment consists of satisfies the applicable program business hours, Monday through Friday, Maryland House Bill 893, which was approval criteria of 30 CFR 732.15. If we excluding holidays. You may receive enacted for the purpose of requiring the approve the amendment, it will become one free copy of the amendment by Department of the Environment to part of the Maryland program. contacting the Appalachian Regional review an application for an open-pit Coordinating Center. mining permit in a timely manner. The Written Comments Mr. George Rieger, Chief, Pittsburgh bill revises the Annotated Code of Send your written or electronic Field Division, Office of Surface Mining Maryland, and requires the Department comments to OSM at the address given Reclamation and Enforcement, of the Environment to take action for above. Your written comments should Appalachian Regional Coordinating permit applications, permit revisions, be specific, pertain only to the issues Center, 3 Parkway Center, Pittsburgh, and revised applications within certain proposed in this rulemaking, and PA 15220, Telephone: (412) 937–2153. time periods. The full text of the include explanations in support of your E-mail: [email protected]. program amendment is available to you recommendations. We may not consider Mr. C. Edmon Larrimore, Program to read at the locations listed above or respond to your comments when Manager, Mining Program, 1800 under ADDRESSES. Specifically, developing the final rule if they are Washington Boulevard, Baltimore, Maryland proposes the following received after the close of the comment Maryland 21230, Telephone: (410) 537– amendments to the Annotated Code of period (see DATES). We will make every 3000, or 1–800–633–6101. Maryland. attempt to log all comments into the
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administrative record, but comments Public Meeting SMCRA requires that State laws delivered to an address other than the If only one person requests an regulating surface coal mining and Appalachian Regional Coordinating opportunity to speak, we may hold a reclamation operations be ‘‘in Center may not be logged in. public meeting rather than a public accordance with’’ the requirements of SMCRA, and section 503(a)(7) requires Electronic Comments hearing. If you wish to meet with us to discuss the amendment, please request that State programs contain rules and Please submit Internet comments as regulations ‘‘consistent with’’ an ASCII, Word file avoiding the use of a meeting by contacting the person listed under FOR FURTHER INFORMATION regulations issued by the Secretary special characters and any form of pursuant to SMCRA. encryption. Please also include ‘‘Attn: CONTACT. All such meetings will be SATS NO. MD–053–FOR’’ and your open to the public and, if possible, we Executive Order 13175—Consultation name and return address in your will post notices of meetings at the and Coordination With Indian Tribal Internet message. If you do not receive locations listed under ADDRESSES. We Governments will make a written summary of each a confirmation that we have received In accordance with Executive Order meeting a part of the Administrative your Internet message, contact the 13175, we have evaluated the potential Record. Appalachian Regional Coordinating effects of this rule on Federally- Center at (412) 937–2153. IV. Procedural Determinations recognized Indian tribes and have determined that the rule does not have Availability of Comments Executive Order 12630—Takings substantial direct effects on one or more We will make comments, including This rule does not have takings Indian tribes, on the relationship names and addresses of respondents, implications. This determination is between the Federal Government and available for public review during based on the analysis performed for the Indian tribes, or on the distribution of normal business hours. We will not counterpart Federal regulation. power and responsibilities between the consider anonymous comments. If Federal Government and Indian tribes. individual respondents request Executive Order 12866—Regulatory Planning and Review The basis for this determination is that confidentiality, we will honor their decision is on a State regulatory request to the extent allowable by law. This rule is exempt from review by program and does not involve a Federal Individual respondents who wish to the Office of Management and Budget regulation involving Indian lands. withhold their name or address from (OMB) under Executive Order 12866. public review, except for the city or Executive Order 13211—Regulations Executive Order 12988—Civil Justice town, must state this prominently at the That Significantly Affect the Supply, Reform beginning of their comments. We will Distribution, or Use of Energy make all submissions from The Department of the Interior has On May 18, 2001, the President issued organizations or businesses, and from conducted the reviews required by Executive Order 13211 which requires individuals identifying themselves as section 3 of Executive Order 12988 and agencies to prepare a Statement of representatives or officials of has determined that this rule meets the Energy Effects for a rule that is (1) organizations or businesses, available applicable standards of subsections (a) considered significant under Executive for public inspection in their entirety. and (b) of that section. However, these Order 12866, and (2) likely to have a standards are not applicable to the Public Hearing significant adverse effect on the supply, actual language of State regulatory distribution, or use of energy. Because If you wish to speak at the public programs and program amendments this rule is exempt from review under hearing, contact the person listed under because each program is drafted and Executive Order 12866 and is not FOR FURTHER INFORMATION CONTACT by 4 promulgated by a specific State, not by expected to have a significant adverse p.m. (local time), on March 26, 2004. If OSM. Under sections 503 and 505 of effect on the supply, distribution, or use you are disabled and need special SMCRA (30 U.S.C. 1253 and 1255) and of energy, a Statement of Energy Effects accommodations to attend a public the Federal regulations at 30 CFR is not required. hearing, contact the person listed under 730.11, 732.15, and 732.17(h)(10), FOR FURTHER INFORMATION CONTACT. We decisions on proposed State regulatory National Environmental Policy Act will arrange the location and time of the programs and program amendments This rule does not require an hearing with those persons requesting submitted by the States must be based environmental impact statement the hearing. If no one requests an solely on a determination of whether the because section 702(d) of SMCRA (30 opportunity to speak, we will not hold submittal is consistent with SMCRA and U.S.C. 1292(d)) provides that agency a hearing. its implementing Federal regulations decisions on proposed State regulatory To assist the transcriber and ensure an and whether the other requirements of program provisions do not constitute accurate record, we request, if possible, 30 CFR parts 730, 731, and 732 have major Federal actions within the that each person who speaks at the been met. meaning of section 102(2)(C) of the public hearing provide us with a written Executive Order 13132—Federalism National Environmental Policy Act (42 copy of his or her comments. The public U.S.C. 4332(2)(C)). hearing will continue on the specified This rule does not have Federalism date until everyone scheduled to speak implications. SMCRA delineates the Paperwork Reduction Act has been given an opportunity to be roles of the Federal and State This rule does not contain heard. If you are in the audience and governments with regard to the information collection requirements that have not been scheduled to speak and regulation of surface coal mining and require approval by OMB under the wish to do so, you will be allowed to reclamation operations. One of the Paperwork Reduction Act (44 U.S.C. speak after those who have been purposes of SMCRA is to ‘‘establish a 3507 et seq.). scheduled. We will end the hearing after nationwide program to protect society everyone scheduled to speak and others and the environment from the adverse Regulatory Flexibility Act present in the audience who wish to effects of surface coal mining The Department of the Interior speak, have been heard. operations.’’ Section 503(a)(1) of certifies that this rule will not have a
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significant economic impact on a DEPARTMENT OF HOMELAND envelope. We will consider all substantial number of small entities SECURITY comments and material received during under the Regulatory Flexibility Act (5 the comment period. We may change U.S.C. 601 et seq.). The State submittal, Coast Guard this proposed rule in view of them. which is the subject of this rule, is based Public Meeting upon counterpart Federal regulations for 33 CFR Part 100 We do not plan to hold a public which an economic analysis was [CGD09–03–233] meeting. But you may submit a request prepared and certification made that RIN 1625–AA08 [Previously AA00] for a meeting by writing to Coast Guard such regulations would not have a MSO Cleveland at the address under significant economic effect upon a Special Local Regulations; Head of the ADDRESSES explaining why one would substantial number of small entities. In Cuyahoga Regatta, Cleveland, OH be beneficial. If we determine that one making the determination as to whether AGENCY: Coast Guard, DHS. would aid this rulemaking, we will hold this rule would have a significant one at a time and place announced by ACTION: Supplemental notice of economic impact, the Department relied a later notice in the Federal Register. upon the data and assumptions for the proposed rulemaking. Background and Purpose counterpart Federal regulations. SUMMARY: On July 16, 2003, the Coast Guard published a notice of proposed On July 16, 2003, the Coast Guard Small Business Regulatory Enforcement published an NPRM in the Federal Fairness Act rulemaking (NPRM) requesting comments on the proposed safety zone Register proposing a safety zone for the annual Head of the Cuyahoga Rowing This rule is not a major rule under 5 for the annual Head of the Cuyahoga Regatta event (68 FR 41982). The U.S.C. 804(2), the Small Business Rowing Regatta in Cleveland, Ohio. The Coast Guard received four letters with proposed safety zone was introduced to Regulatory Enforcement Fairness Act. control vessel traffic within the This rule: (a) Does not have an annual several substantive comments. Based upon the comments, a new final rule is immediate location of the regatta to effect on the economy of $100 million; ensure the safety of life and property on (b) Will not cause a major increase in being proposed under 33 CFR part 100, in lieu of a safety zone under part 165. the navigable waters of the United costs or prices for consumers, States during the event. The Coast DATES: Comments and related material individual industries, Federal, State, or Guard received four comments in must reach the Coast Guard on or before local government agencies, or response to the July 16, 2003 NPRM. geographic regions; and (c) Does not April 26, 2004. The first comment addressed the have significant adverse effects on ADDRESSES: You may mail comments appropriate use of a safety zone for this competition, employment, investment, and related material to Coast Guard event. The proposed safety zone productivity, innovation, or the ability Marine Safety Office Cleveland restricted commercial vessel traffic on of U.S.-based enterprises to compete (CGD09–03–233), 1055 East Ninth the Cuyahoga River during the event, with foreign-based enterprises. This Street, Cleveland, Ohio, 44114. Marine with the exception of a two-hour determination is based upon the Safety Office Cleveland maintains the window to allow for commercial public docket for this rulemaking. analysis performed under various laws transits. We agree that the use of a safety Comments and material received from and executive orders for the counterpart zone to restrict vessel traffic in the the public, as well as documents Federal regulations. vicinity of a regatta is not the most indicated in this preamble as being appropriate type of waterway regulation Unfunded Mandates available in the docket, will become part for this event. Therefore, the safety zone of this docket and available for will not be implemented. Alternatively, This rule will not impose an inspection or copying at Coast Guard a proposal to manage vessel traffic using unfunded mandate on State, local, or MSO Cleveland between 8 a.m. and 3:30 special local regulations under 33 CFR tribal governments or the private sector p.m., Monday through Friday, except part 100 is presented below. of $100 million or more in any given Federal holidays. The second comment addressed the year. This determination is based upon FOR FURTHER INFORMATION CONTACT: two-hour window intended to facilitate the analysis performed under various Lieutenant Allen Turner, U.S. Coast commercial vessel traffic during the laws and executive orders for the Guard Marine Safety Office Cleveland, event. Commercial entities have counterpart Federal regulations. at (216) 937–0128. determined that the two-hour window SUPPLEMENTARY INFORMATION: was insufficient for safe passage. We List of Subjects in 30 CFR Part 948 concur with this statement, and the two- Request for Comments Intergovernmental relations, Surface hour window will be withdrawn. The mining, Underground mining. We encourage you to participate in event will now run continuous from 8 this rulemaking by submitting a.m. until 3 p.m. The Coast Guard will Dated: February 24, 2004. comments and related material. If you provide sufficient notice to the public so Tim L. Dieringer, do so, please include your name and commercial entities will have ample Acting Regional Director, Appalachian address, identify the docket number for opportunity to schedule around the Regional Coordinating Center. this rulemaking (CGD09–03–233), event. [FR Doc. 04–5498 Filed 3–10–04; 8:45 am] indicate the specific section of this The third comment addressed the BILLING CODE 4310–05–P document to which each comment necessity of a Final Rule for this event, applies, and give the reason for each stating that a recurring temporary final comment. Please submit all comments rule would be advantageous to all and related material in an unbound parties involved because it would allow format, no larger than 81⁄2 by 11 inches, for comments each year. We disagree. suitable for copying. If you would like There is no need to initiate a separate to know they reached us, please include rulemaking process every time for this a stamped, self-addressed postcard or annual event. Since 1996, this event has
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been held annually and is expected to a significant impact on a substantial Federalism continue into the foreseeable future. The number of small entities. The term We have analyzed this proposed rule event sponsors will still be required to ‘‘small entities’’ comprises small under Executive Order 13132 and have submit a marine event permit and the businesses, not-for-profit organizations determined that this rule does not have dates will be published annually. that are independently owned and implications for federalism under that However, since the event is not operated and are not dominant in their Order. temporary in nature, a permanent rule fields, and governmental jurisdictions should be established. Furthermore, the with populations of less than 50,000. Unfunded Mandates Reform Act final rule can be cancelled if there are The Coast Guard certifies under 5 U. The Unfunded Mandates Reform Act any significant changes. S. C. 605(b) that this proposed rule of 1995 (2 U.S.C. 1531–1538) requires The fourth comment stated that would not have a significant economic Federal agencies to assess the effects of commercial vessel restrictions on the impact on a substantial number of small their discretionary regulatory actions. In river during the event were necessary to entities. particular, the Act addresses actions ensure the safety of participants. We that may result in the expenditure by a agree that vessel traffic on the Cuyahoga This proposed rule would affect the State, local, or tribal government, in the River must be managed to ensure safety following entities, some of which might aggregate, or by the private sector of of life and property on the navigable be small entities: The owners or $100,000,000 or more in any one year. waters of the United States during this operators of commercial vessels Though this proposed rule would not event. Using special local regulations intending to transit a portion of the result in such expenditure, we do under 33 CFR part 100 allows the Coast regulated area. discuss the effects of this rule elsewhere Guard to manage vessel traffic during This proposed rule would not have a in this preamble. the event and ensure safety of significant economic impact on a Taking of Private Property competitors, shells, and course substantial number of small entities for markings from recreational and the following reasons: The proposed This proposed rule would not effect a commercial vessels. special local regulations are only in taking of private property or otherwise Discussion of Proposed Rule effect for a few hours on the day of the have taking implications under event and the Coast Guard will provide Executive Order 12630, Governmental This proposed rule would establish full and adequate notice of the dates of Actions and Interference with special local regulations for an annual the regatta, together with full and Constitutionally Protected Property event on the third Saturday of complete information of the special Rights. September from 8 a.m. until 3 p.m. We local regulations to ensure commercial intend to maintain positive control over Civil Justice Reform entities have ample time to schedule all vessel movement in the vicinity of This proposed rule meets applicable around the event. Recreational vessels the event, and therefore all vessels are standards in sections 3(a) and 3(b)(2) of can safely pass through the regulated required to obtain permission from the Executive Order 12988, Civil Justice area under sponsor or Coast Guard Coast Guard Patrol Commander prior to Reform, to minimize litigation, escort. transiting the area. eliminate ambiguity, and reduce If you think that your business, burden. Regulatory Evaluation organization, or governmental This proposed rule is not a jurisdiction qualifies as a small entity Protection of Children ‘‘significant regulatory action’’ under and that this rule would have a The Coast Guard has analyzed this section 3(f) of Executive Order 12866 significant economic impact on it, proposed rule under Executive Order and does not require an assessment of please submit a comment (see 13045, Protection of Children from potential costs and benefits under ADDRESSES) explaining why you think it Environmental Health Risks and Safety section 6(a)(3) of that order. The Office qualifies and how and to what degree Risks. This rule is not an economically of Management and Budget has not this rule would economically affect it. significant rule and does not concern an reviewed this rule under that order. It is environmental risk to health or risk to not significant under the regulatory Assistance for Small Entities safety that may disproportionately affect policies and procedures of the Under section 213(a) of the Small children. Department of Transportation (DOT) (44 Business Regulatory Enforcement Indian Tribal Governments FR 11040, February 26, 1979). We Fairness Act of 1996 (Public Law 104– This proposed rule does not have expect the economic impact of this 121), we want to assist small entities in tribal implications under Executive proposed rule to be so minimal that a understanding this rule so that they can Order 13175, Consultation and full Regulatory Evaluation under better evaluate its effects and participate Coordination with Indian Tribal paragraph 10(e) of the regulatory in the rulemaking process. If the rule Governments, because it would not have policies and procedures of DHS is would affect your small business, a substantial direct effect on one or unnecessary. organization, or governmental The Coast Guard will publish full and more Indian tribes, on the relationship jurisdiction and you have questions adequate notice of the dates of the between the Federal Government and concerning its provisions or options for regatta, together with full and complete Indian tribes, or on the distribution of compliance, please contact Marine information of the special local power and responsibilities between the Safety Office Cleveland (see regulations to ensure commercial Federal Government and Indian tribes. ADDRESSES). entities have ample time to schedule Energy Effects around the event. Collection of Information The Coast Guard has analyzed this Small Entities This proposed rule would call for no proposed rule under Executive Order Under the Regulatory Flexibility Act new collection of information under the 13211, Actions Concerning Regulations (5 U.S.C. 601–612), we have considered Paperwork Reduction Act of 1995 (44 That Significantly Affect Energy Supply, whether this proposed rule would have U.S.C. 3501–3520). Distribution, or Use. We have
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determined that it is not a ‘‘significant Guard Patrol Commander via VHF/FM Washington, DC between 8:30 a.m. and energy action’’ under that order because Radio, Channel 16, to transit the area. 5 p.m. it is not a ‘‘significant regulatory action’’ Dated: February 23, 2004. FOR FURTHER INFORMATION CONTACT: under Executive Order 12866 and is not Lorne W. Thomas, David O. Carson, General Counsel, or likely to have a significant adverse effect Commander, U.S. Coast Guard, Captain of Tanya M. Sandros, Senior Attorney, on the supply, distribution, or use of the Port Cleveland. Copyright Arbitration Royalty Panel, energy. It has not been designated by the [FR Doc. 04–5466 Filed 3–10–04; 8:45 am] P.O. Box 70977, Southwest Station, Administrator of the Office of Washington, DC 20024–0977. BILLING CODE 4910–15–P Information and Regulatory Affairs as a Telephone: (202) 707–8380; Telefax: significant energy action. Therefore, it (202) 252–3423. does not require a Statement of Energy SUPPLEMENTARY INFORMATION: Effects under Executive Order 13211. LIBRARY OF CONGRESS I. Background Environment Copyright Office Section 115 of the Copyright Act, 17 We have considered the U.S.C., provides that ‘‘[w]hen 37 CFR Part 201 environmental impact of this proposed phonorecords of a nondramatic musical rule under Commandant Instruction [Docket No. RM 2001–6A] work have been distributed to the public M16475.1C, which guides the Coast in the United States under the authority Guard in complying with the National Compulsory License for Making and of the copyright owner, any other Environmental Policy Act of 1969 Distributing Phonorecords, Including person * * * may, by complying with (NEPA) (42 U.S.C. 4321–4370f), and Digital Phonorecord Deliveries the provisions of this section, obtain a have concluded that there are no factors compulsory license to make and in this case that would limit the use of AGENCY: Copyright Office, Library of distribute phonorecords of the work.’’ categorical exclusion under Section Congress. 17 U.S.C. 115(a)(1). The compulsory 2.B.2 of the Instruction. Therefore, this ACTION: Notice of proposed rulemaking. license set forth in section 115 permits rule is categorically excluded under the use of a nondramatic musical work SUMMARY: Figure 2–1, paragraph 35(h) of the The Copyright Office of the without the consent of the copyright Instruction, from further environmental Library of Congress is proposing to owner if certain conditions are met and documentation. A written categorical amend its regulations governing the royalties are paid. exclusion determination is available in content and service of certain notices on One such condition precedent set the docket for inspection or copying the copyright owner of a musical work. forth in the law requires any person where indicated under ADDRESSES. The notice is served or filed by a person using the section 115 license to provide who intends to use a musical work to List of Subjects in 33 CFR Part 100 notice to the copyright owner of a make and distribute phonorecords, musical work ‘‘before or within thirty Marine safety, navigation (water), including by means of digital days after making, and before Reporting and recordkeeping phonorecord deliveries, under a distributing any phonorecords’ of his or requirements, waterways. compulsory license. her intent to use the copyright owner’s For the reasons discussed in the DATES: Comments should be received no work under the statutory license. 17 preamble, the Coast Guard proposes to later than April 12, 2004. U.S.C. 115(b). Pursuant to this section, amend 33 CFR part 100 as follows: ADDRESSES: An original and ten copies the Register of Copyrights issued PART 100—REGATTAS AND MARINE of any comment shall be sent to the regulations prescribing the form, PARADES Copyright Office. If comments are content, and manner of service of the mailed, the address is: Copyright Notice of Intention (‘‘Notice’’) to obtain 1. The authority citation for part 100 Arbitration Royalty Panel, P.O. Box the license. Final regulations governing continues to read as follows: 70977, Southwest Station, Washington, the content and service of the Notice Authority: 33 U.S.C. 1233; and Department DC 20024–0400. If comments are hand were adopted on November 28, 1980. 45 of Homeland Security Delegation No. 0170.1. delivered by a commercial, non- FR 79038 (November 28, 1980). These 2. Add § 100.903 to read as follows: government courier or messenger, rules served the traditional needs of the comments must be delivered to: The statutory licensee who wished to use a § 100.903 Head of the Cuyahoga Regatta, Congressional Courier Acceptance Site, copyrighted musical work to make their Cleveland, OH. located at Second and D Streets, NE., own sound recording under the (a) Regulated Area. All portions of the between 8:30 a.m. and 4 p.m., and traditional section 115 mechanical Cuyahoga River between a line drawn addressed to ‘‘Office of the General license. perpendicular to each riverbank at Counsel, U.S. Copyright Office, James Section 115 was subsequently 41°29′19″ N, 81°40′50″ W (Marathon Madison Memorial Building, Room LM– amended on November 1, 1995, with the Bend), to a line drawn perpendicular to 401, First and Independence Avenue, enactment of the Digital Performance each riverbank at 41°29′56″ N, 81°42′27″ SE., Washington, DC 20559–6000.’’ If Right in Sound Recordings Act of 1995 W (confluence with the Old River). comments are hand delivered by a (‘‘DPRA’’), Public Law 104–39 (1995). These coordinates are based upon North private party, they must be addressed to: Among other things, this law expanded American Datum (NAD 1983). ‘‘Office of the General Counsel, U.S. the section 115 compulsory license for (b) Enforcement Period. This section Copyright Office, James Madison making and distributing phonorecords will be enforced annually on the third Memorial Building, Room LM–401, First to include not only the traditional use Saturday of September from 8 a.m. until and Independence Avenue, SE., of the musical work to make an original 3 p.m. The Coast Guard will publish the Washington, DC 20559–6000,’’ and sound recording, but also the dates annually. delivered to the Public Information distribution of a phonorecord of a (c) Special Local Regulations. All Office, James Madison Memorial nondramatic musical work by means of vessels are prohibited from transiting Building, Room 401, First and a digital phonorecord delivery (‘‘DPD’’). the area without permission from Coast Independence Avenue, SE., See 17 U.S.C. 115(c)(3)(A). As defined
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in the law, a digital phonorecord II. Comments Competition Act of 2001 (‘‘MOCA’’), delivery is: In response to this notice, the proposed in the 107th Congress as H.R. each individual delivery of a phonorecord by Copyright Office received comments 2724. Specifically, DiMA and Napster digital transmission of a sound recording from Wixen Music Publishing, Inc. would like the Copyright Office to which results in a specifically identifiable (‘‘Wixen’’), the Digital Media designate a single entity upon which to reproduction by or for any transmission Association (‘‘DiMA’’), Napster, Inc. serve Notices and make royalty recipient of a phonorecord of that sound (‘‘Napster’’),1 and a joint comment from payments. In addition, DiMA proposes recording, regardless of whether the digital the Recording Industry Association of the creation of a ‘‘safe harbor’’ for those transmission is also a public performance of America, Inc., the National Music who fail to exercise properly the license the sound recording or any nondramatic during the period of uncertainty arising musical work embodied therein. Publishers’ Association, Inc., and The Harry Fox Agency, Inc. (collectively, from the administration of the license 17 U.S.C. 115(d). ‘‘RIAA/NMPA/HFA’’). for digital phonorecord deliveries The right to make and distribute a Wixen filed general comments which (‘‘DPDs’’). It would also like to see the DPD, however, does not include the oppose the proposed amendments. It regulations amended to allow payment exclusive rights to make and distribute argues that the changes are designed to on a quarterly rather than a monthly the sound recording itself. These rights make it easier to use the statutory basis and to establish a threshold below are held by the copyright owner of the license and that increased use of the which payment would not be required. sound recording and must be cleared license is not a desirable result because These suggestions, however, require through a separate transaction. In fact, use of the license erodes the rights of statutory changes. For example, the to avoid any confusion on this point, the copyright owners. Wixen, however, fails Office has no authority to excuse a Digital Millennium Copyright Act of to offer any support for its position or licensee’s failure to serve a Notice 1998 (‘‘DMCA’’), Public Law 105–304, its observation, other than to assert that within the statutory time frame, nor clarifies that the making of a DPD will record clubs fail to adhere to the does it have the authority to alter the constitute an act of infringement under mechanical licensing process altogether. timetable for payment. Section 115(b) of section 501 unless: (1) The copyright But failure on the part of some persons the Copyright Act states that a licensee owner of the sound recording authorizes to use the license properly is not a ‘‘shall, before or within thirty days after the making of the DPD, and (2) the reason to erect barriers for others to take making, and before distributing any owner of the copyright of the sound advantage of the statutory license. In phonorecords of the work, serve notice recording or the entity making the DPD fact, the Office has a responsibility to of intention to do so on the copyright has obtained a compulsory license promulgate regulations that implement owner.’’ Likewise, section 115(c)(5) under section 115 or has otherwise been Congress’ express intent to allow the use specifically requires that ‘‘royalty authorized to distribute, by means of a of a musical work for the purpose of payments shall be made on or before the twentieth day of each month and shall DPD, each musical work embodied in making and distributing phonorecords include all royalties for the month next the sound recording. See 17 U.S.C. under the terms of the statutory license. preceding.’’ Moreover, section 115(c)(6) 115(c)(3)(H). The remaining three commenters, DiMA, Napster and RIAA/NMPA/HFA, makes clear that upon failure to make What the DMCA did not do is change payment within thirty days from the or alter the longstanding notice all agree that the current regulations do not meet the needs of the new date of receipt of a written notice from requirement set forth in section 115(b). the copyright owner indicating that However, the amendments did require technologies and are in need of revision. In fact, these commenters do not think payment has not been received, the the Copyright Office to amend its license will be terminated and further regulations governing the content and the proposed changes go far enough, and they encourage the Office to adopt making or distributions pursuant to the service of the required Notices of license are actionable as acts of Intention to use the license to include further revisions to streamline and simplify the notice provisions. In infringement. 17 U.S.C. 115 (c)(6). the making of a digital phonorecord Notwithstanding the requests to issue delivery, and the Office did so in 1999. addition to the revisions proposed in the initial notice, RIAA/NMPA/HFA rules to modify the law, the Office has See 64 FR 41286 (July 30, 1999). found the comments useful and has Unfortunately, these changes did not go propose regulatory language that addresses electronic licensing, incorporated many of the commenters’ far enough to address the needs of proposals in the rules proposed herein, certain digital music services which eliminates the requirement that certain ownership, officer and director especially where the proposed changes anticipate using most, if not all, of the would facilitate the process for filing musical works embodied in the sound information be provided, and allows service of Notices by regular mail or Notices to the benefit of both the recordings readily available in today’s licensee and the copyright owner. marketplace under the section 115 courier. DiMA agrees with RIAA/NMPA/HFA The proposed rules published today license. in large part but maintains that the reflect the Office’s proposed resolution Consequently, on August 28, 2001, current system, even with the proposed of the issues raised in this rulemaking the Copyright Office published a second changes, does not address the needs of proceeding and of the proposals made notice of proposed rulemaking in which the newly emerging business models. by the commenters. Because the Office it suggested further amendments to Both it and Napster support electronic proposes to address one issue raised by those rules associated with service of a commenters but not raised in the earlier filing, but their comments go much Notice to use the section 115 license notice of proposed rulemaking, and further than the changes proposed by and filing of such notice with the Office. because the Office seeks further the Office or RIAA/NMPA/HFA, in that 66 FR 45241 (August 28, 2001). The comment on one issue addressed below, they urge the Office, to the extent purpose of these amendments is to we are publishing a final notice of possible, to incorporate the changes set streamline the notification process and proposed rulemaking to seek comments forth in the proposed Music Online make it easier for the licensee to serve on those two particular issues. the copyright owner with notice of the 1 Napster, Inc. subsequently went out of business. Commenters may, of course, address potential user’s intention to use The Napster service mark is now used by Roxio, other provisions of the proposed rules multiple musical works. Inc. in connection with an online music service. as well, but the Office does not
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anticipate that its determinations on copyright owner to use an agent to advise the licensee where to send them, those provisions will change. It is the accept the requisite Notices and/or but this appears to be a necessary result Office’s goal to propound final royalty payments accompanied by of the system proposed by copyright regulations promptly after the statements of account, but the rules will owners that would permit them to limit expiration of the comment period. not require that the copyright owner use the authority of the agent to receipt of a single agent to perform both functions. Notices of Intention. The Office also III. Discussion The decision to use an agent is left to seeks comment on an alternative 1. Service on Authorized Agents. the discretion of the copyright owner approach that would require the Under the proposed amendments, a who may wish to use one agent to licensee to send Statements of Account potential licensee could choose to serve accept all filings under the section 115 and royalty payments to the agent to either the copyright owner of the license, including the Notice, the whom the Notice of Intention was sent musical work or a duly authorized agent Statements of Account and royalty unless and until the agent or the of the copyright owner for purposes of payments. Alternatively, a copyright copyright owner advises the licensee complying with the notice requirements owner may choose to use an agent only that the statements and payments of the section 115 license. In principle, for the purpose of accepting Notices should be sent elsewhere. RIAA/NMPA/HFA support such a with the expectation that the licensee In adopting the new approach, the change, but they contend that the will thereafter send all statements of Office also considered carefully the rule proposed amendment is too restrictive. account and royalty payments directly proposed by RIAA/NMPA/HFA that First, they object to the requirement that to the copyright owner or to another would protect a licensee in the event the the agent must be specifically agent designated by the copyright owner Notice is incorrectly served on an agent authorized to grant or administer the for that purpose. with no authority to act on behalf of the particular rights that are being licensed. However, use of multiple agents can copyright owner for purposes of the They note that a compulsory license is create traps for the unwary licensee in compulsory license. Under the proposed conferred automatically, by operation of the case where an agent has been RIAA/NMPA/HFA rule, a licensee law, and consequently, a ‘‘copyright authorized only to accept Notices and would incur no liability for a owner * * * should have the flexibility the licensee is unaware of the limits of misdirected Notice provided that the to appoint agents that are authorized to the agent’s authority or assumes licensee served the Notice properly on receive Notices of Intention and incorrectly that, as under the former the copyright owner within thirty days transmit them to the copyright owner, regulatory scheme, Notices and after receiving the returned Notice. even if such agents are not empowered Statements of Account are served on the Moreover, the proposed rule would with discretion to grant or administer same entity. Consequently, the new have specified the date of the mailing of rights on a voluntary basis,’’ RIAA/ rules would impose a duty on the the original Notice as the date of service NMPA/HFA comment at 5, and propose copyright owner to have its agent for purposes of providing notice to the additional language to cover this disclose the extent of its authority and copyright owner. contingency. to provide each licensee with the The rule change proposed by RIAA/ Second, they contend that a licensee information they need to make payment NMPA/HFA, however, would be should not be penalized for not knowing to the proper party and to file the contrary to law in at least two ways. the metes and bounds of the agent’s Statements of Account. This approach First, the proposed rule would not authority. To deal with such a case, would allocate to the licensee the insure notice in all situations. It would RIAA/NMPA/HFA seek a change in the responsibility for serving Notices on the only require a licensee to serve a Notice proposed regulatory language that proper party, see discussion infra, directly on the copyright owner in the would protect the licensee in the event section 4, Risk Assessment, and would case where a misdirected Notice has an agent who has no authority to receive place responsibility for supplying been returned to the licensee. It would the Notice is mistakenly served on information for making proper payment not provide for any means to notify the behalf of the copyright owner. on the copyright owner, who is in the copyright owner in the case where a Specifically, their proposed rule would best position to provide this Notice has been misdirected and not allow the agent to return the Notice to information. Licensees who make returned, thus, failing to meet the notice the licensee who would then serve the payment in accordance with the requirement. Notice on the copyright owner directly information provided by an authorized Second, the proposed rule would within thirty days after receiving the agent would be deemed to have fully extend the period for serving a Notice returned original Notice. The rule complied with the statutory beyond the period set forth in the law. would further specify the date of the requirements. A licensee who has The statute requires that notice be mailing of the original Notice as the date served the Notice of Intention upon an served on the copyright owner ‘‘before of service for purposes of the section agent will be under no obligation to or within thirty days after making, and 115 license. send Statements of Account or royalty before distributing any phonorecords of Third, RIAA/NMPA/HFA express payments to the agent or the copyright the work,’’ 17 U.S.C. 115(b)(1). Yet, the concern that the emphasis on an agent owner until the agent notifies the RIAA/NMPA/HFA rule would expand being ‘‘duly authorized’’ may set a licensee where to send the Statements of the period for serving a Notice on the standard for establishing an agency Account and payments. However, once copyright owner, by resetting the clock relationship higher than that applied as the agent sends such notification, the for the thirty-day period for serving the a matter of agency law. licensee would be required to send Notice on the copyright owner to the The need for a more flexible system Statements of Account and royalty date a misdirected Notice is returned to for notification of use of the section 115 payments covering the intervening the licensee. RIAA/NMPA/HFA realize statutory license is evident from the period. that this proposal could contravene the comments received by the Copyright Such an approach creates the risk that statutory time frame for serving notice Office. Consequently, the rules a licensee may be able temporarily to and attempt to solve the problem by proposed today will provide greater delay sending Statements of Account having the Office adopt a new rule, flexibility to the copyright owner and to and royalty payments to a copyright specifying the mailing date of the the licensee. They will allow a owner when the agent has failed to original Notice as the date of service.
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But this approach is flawed because it the statute to promulgate such a rule. In evidentiary record to document the ignores the fact that the law requires fact, Napster’s and DiMA’s suggestion licensee’s attempt to serve the Notice on that a person wishing to use the that the Copyright Office designate a the copyright owner in a timely manner. compulsory license ‘‘serve notice of single agent for purposes of receiving However, there is no reason to compel intention to do so on the copyright the Notices is contrary to the express a licensee to use a particular method owner.’’ 17 U.S.C. 115(b)(1). Service on language in the law. Section 115(b)(1) provided that the licensee assumes the someone other than the copyright owner requires that a licensee serve a Notice to burden of proving that the Notice was or the owner’s authorized agent, even use the compulsory section 115 on the served in a timely manner. As before, when done in good faith, is not service copyright owner and allows filing of the where the licensee elects to serve the on the copyright owner. For the Notice with the Office only in the event Notice by certified or registered mail on foregoing reasons, the RIAA/NMPA/ the ‘‘registration or other public records the copyright owner at the last address HFA proposed rule has not been of the Copyright Office do not identify for the copyright owner shown in the adopted. the copyright owner and include an records of the Copyright Office, the date We have also considered RIAA/ address at which notice can be served.’’ the original Notice was sent, as NMPA/HFA’s suggestion to eliminate Thus, there can be no serious dispute documented by either a certified or the requirement that an agent be ‘‘duly that the law allows service of the Notice registered mail receipt, shall be authorized’’ to act on behalf of the with the Copyright Office only in very considered the date of service. copyright owner for the purpose of limited circumstances. Notice to either Moreover, the Office will accept the administering the reproduction and the Copyright Office or a single agent date of attempted delivery by a distribution rights of the copyright designated by the Copyright Office reputable courier as the date of service, owner and agree that it is not necessary would alter the structure set forth in the provided that documentation from the for an agent to be authorized to this law and, hence, it is clearly not courier identifying the date of attempted extent, if the agent will only be permissible. Moreover, while the delivery is provided. Alternatively, in accepting Notices to use the section 115 advantage of such an approach to the case where the licensee chooses to license, see 37 CFR 201.18(a)(4), and/or licensees is apparent, copyright owners serve the Notice by means other than accepting Statements of Account and presumably would consider themselves certified or registered mail or a royalty payments, see 37 CFR disadvantaged by such an approach reputable courier, e.g., first-class mail, 201.19(a)(4) and (e)(7)(i). However, the because they would no longer receive the licensee should have the burden of agent must have the authority to accept direct notification that their works are demonstrating that service was timely. the Notices and/or Statements of being used by particular licensees. This change would not alter in any way Account and royalty payments. RIAA/ However, there is no reason that a the licensee’s obligation to serve the NMPA/HFA also express concern that copyright owner cannot affirmatively Notice on the copyright owner or the the requirement that the agent be ‘‘duly designate an agent to act on his or her copyright owner’s agent in the authorized’’ might be interpreted as behalf for purposes of receiving the prescribed manner. setting a standard of authority different Notices and the monthly statements of 3. Service to Known Address. Section from that which would apply as a account, and so the proposed rules have 115(b)(1) of the Copyright Act requires matter of agency law. They propose that been amended accordingly. the compulsory licensee to serve the persons wishing to use the statutory RIAA/NMPA/HFA also suggest a required Notice on the copyright owner. license be permitted to serve Notices of technical correction to make clear that Under the current regulations, the Intention on agents ‘‘with authority’’ to service may be accomplished by either Notice must be sent to the copyright receive the Notice of Intention. The serving the copyright owner directly or owner identified in the registration Office agrees that service upon an agent an agent of the copyright owner. We records or other public records of the who has authority to accept Notices of agree that the final rules should be clear Copyright Office at the last address Intention on behalf of a copyright owner that service on either the copyright listed in these records in order to meet should be sufficient. For this reason, the owner or its agent is sufficient, and we the notice requirements. Users have rules will require that service be made have revised the proposed amendment argued and the Office agrees that service on the copyright owner or on an agent accordingly. on the copyright owner at the address with authority to receive the Notice, but 2. Service by Regular Mail or Courier. listed in the Copyright Office records will not include the original proposed RIAA/NMPA/HFA suggest that the places a tremendous burden on a requirement that the agent be fully Office amend its rules to allow service potential licensee who hopes to use the authorized to administer the by means other than certified mail or license to reproduce multiple works in reproduction and distribution rights. registered mail, including first class those cases where the public records do Napster and DiMA, like RIAA/NMPA/ mail, airmail, express mail, or by not reflect the most current information HFA, support the adoption of a rule that reputable courier. They maintain that and the licensee knows the current would allow service on an agent, but service by certified mail or registered address for the copyright owner or the they offer a different approach to the mail is both needlessly expensive and agent for the copyright owner who problem. They propose that service be time consuming. They also note that handles the reproduction and made upon a single agent to be service by regular mail is an accepted distribution rights. A licensee may have designated by the Office in a procedure practice in other legal contexts and that such information based upon a course of similar to that used to designate service by a reputable courier, e.g., dealing with the copyright owner or SoundExchange as the receiving agent Federal Express, DHL and UPS, is a because the copyright owner has for all royalty fees for the performance widely accepted practice in the publicized the information. of sound recordings under the statutory commercial business community. For that reason, the Office proposed section 114 license. See 63 FR 25394 The Office agrees with the proposed an amendment to its regulations that (May 8, 1998); 67 FR 45239 (July 8, suggestion and proposes to amend its would give the potential licensee an 2002). regulations to allow the licensee to option to serve the copyright owner or We recognize the potential benefit choose the method of service. The his or her agent at a current address that such a rule would have for advantage to using certified or registered instead of requiring that the Notice be licensees, but we find no authority in mail, of course, is the creation of an served on the copyright owner at the
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address listed for that copyright owner compulsory license will not cover any submissions must be in writing and in the public records of the Copyright activity taken by the licensee under a available to the public. An electronic Office. RIAA/NMPA/HFA support this mistaken assumption that the Notice submission made in this manner would change, recognizing that many copyright was properly served. be deemed to comply fully with the owners and licensees have an ongoing DiMA finds this approach too harsh regulations for providing adequate business relationship and knowledge of and suggests that mistakes by a notice to the copyright owner. current information not reflected in the licensee’s agent should not be imputed However, the Office recognizes that in public records of the Copyright Office. to the principal. It prefers a rule that some cases, an option to serve Notices They offer no proposed changes to this would not bar a licensee from obtaining electronically may be insufficient, and provision. a statutory license for future use of the copyright owners may have good reason DiMA, on the other hand, proposes a works in the case where the licensee to insist upon electronic filing. As more centralized approach whereby the reasonably relied on the integrity of the RIAA/NMPA/HFA assert, a Notice of user sends the Notices to a limited agent to effectuate proper notice. While Intention that lists a large number of number of centralized entities such as the problem outlined is a serious works may be difficult to process and the Copyright Office, or an agent or concern, the Copyright Office has no handle if it is submitted only in hard agents designated by the Copyright authority to limit liability in the case copy, especially if it is served on an Office, instead of the copyright owner or where a Notice is improperly served. agent for a number of copyright owners his designated agent. DiMA comment at See 63 FR 25394 (May 8, 1998) and lists the works of a number of 4. This approach would, as DiMA points (rejecting proposed term in rate setting copyright owners. For that reason, the out, reduce expense and eliminate the proceeding that would have limited Office proposes a solution somewhat problems that arise when a copyright liability of a statutory licensee to acts different than, but modeled upon, the owner refuses to accept certified mail which materially breach the statutory RIAA/NMPA/HFA suggestion to require filings. license terms). an electronic filing in every instance However, as explained earlier, the 5. Service of Notice by Electronic where the licensee intends to file a only time it is appropriate for a licensee Means. RIAA/NMPA/HFA, DiMA and Notice to license 50 works or more. to file a Notice with the Copyright Napster requested that the Office amend Rather than require an electronic Office is when ‘‘the registration or other its rules to permit a licensee to serve a submission in every such case, the public records of the Copyright Office Notice electronically. RIAA/NMPA/ proposed rule would give a copyright do not identify the copyright owner and HFA note that service of a Notice in a owner or agent who receives a Notice of include an address at which notice can digital format will reduce the potential Intention that designates more than 50 be served.’’ 17 U.S.C. 115(b)(1). Since for loss of information, prove less works the right to demand that the the statute clearly sets forth the burdensome for both the licensee and person submitting the notice resubmit a conditions under which a licensee can the copyright owner (at least in those list of the works identified in the notice file its Notice with the Office, the cases where the licensee is filing a in an electronic format. A list of the proposed changes offered by DiMA to Notice for use of multiple works), and designated works would then have to be allow all Notices to come to the provide a convenient and easy way to resubmitted in electronic format within Copyright Office cannot be adopted. manage the data. To this end, RIAA/ 30 days of the licensee’s receipt of the Such a rule would be an impermissible NMPA/HFA propose that the rules be demand. As RIAA/NMPA/HFA expansion of the duties and amended to require service by electronic proposed, the notice could be in any responsibilities delegated to the means when the Notice lists titles of electronic format in wide use, giving Copyright Office under the law. more than 50 works and that any licensees wide flexibility whether to Therefore, the Copyright Office licensee be allowed to do so in these use, for example, a particular word proposes to adopt a less expansive rule circumstances. processing or spreadsheet program to than the one proposed by DiMA which The Copyright Office fully supports prepare the notice. would allow a licensee to serve the the concept of service by electronic The Office has also considered copyright owner or his or her agent at means and is cognizant of the many whether to allow a licensee to file a an address other than the one listed in advantages it would provide to both Notice in the Copyright Office in an the Copyright Office records. If the licensees and copyright owners. electronic format. At this time, the licensee believes that he or she has more Therefore, it is proposed that the rules Copyright Office is not prepared to current or accurate information than the be amended to provide an option for accept electronic filings because it does information in the Copyright Office serving a Notice in a digital format. If a not have in place the systems that records, he or she may serve the Notice copyright owner/agent can would accommodate such filings. It is using that information. However, as accommodate a licensee who wishes to anticipated that such filings will be discussed below, the licensee bears the submit the Notice in a digital format and accepted in the future. For the time risk if his or her information proves to chooses to receive the Notice in this being, however, in the case where the be inaccurate. manner, then the Notice may be so licensee intends to license a high 4. Risk Assessment. In the event the served. Therefore, the Office proposes to volume of musical works under section person or entity seeking to obtain the adopt the RIAA/NMPA/HFA proposal to 115 and would endure significant license chooses not to serve the allow a licensee to submit a Notice to hardships if required to submit the copyright owner at the address for the a copyright owner or its agent by means Notices under the standard practices, copyright owner noted in the public of an electronic transmission when the the licensee may contact the Licensing records in the Copyright Office and copyright owner or agent has Division of the Copyright Office to mistakenly sends the Notice to a person determined that it can accommodate inquire whether special arrangements or entity who is not the actual copyright such submissions. The proposed rules can be made for submission of the owner, or the agent with authority to would allow each copyright owner or Notice electronically. accept the Notice, or to an incorrect agent acting on behalf of a copyright 6. Multiple Works. Another way to address, the licensee bears all risk owner to establish written guidelines for increase the efficiencies associated with associated with the misdirected service, making electronic submissions. All the filing of a Notice is to allow the including the likelihood that the guidelines for making electronic listing of multiple works on a single
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Notice in the case where the works are formatting and transmittal of the affirmative statement that the owned by the same copyright owner. information. registration records or other public For this reason, the Office proposed to The proposed amended regulations records of the Copyright Office have amend its rules to eliminate the also would require that in the case been searched and that the name and requirement that a separate Notice be where a licensee files a Notice listing address of the copyright owner is not served or filed for each nondramatic multiple titles with the Copyright listed in these records.3 The purpose of musical work embodied, or intended to Office, the licensee shall pay the $12 this amendment is to provide sufficient be embodied, in phonorecords made filing fee for each title. The filing fee information to the Copyright Office so under the compulsory license. See 37 will cover the administrative costs that it can ascertain whether the Notice CFR 201.18(a)(2). associated with separately processing has been properly filed. Moreover, this RIAA/NMPA/HFA support the the information for each title in the requirement will serve as a reminder to Office’s proposal to allow the listing of Notice. There was no opposition to this the potential licensee that he or she has multiple works on a single Notice in the provision. an obligation to search the public case where a single copyright owner has 7. Content. The current regulations do records of the Copyright Office before an interest in each of the listed works. not require that the licensee list the filing the required Notice with this DiMA also supports the Office’s copyright owner’s name on the Notice Office. Napster, however, expressed a proposal to allow a licensee to list because a separate Notice for each work concern that the additional requirement multiple works on a single Notice, but was served directly on the copyright may be used against a licensee as a then suggests that, in the case of an owner, who has no need to be informed means to oppose or restrict access to the electronic submission, the Office allow of his or her identity. Under the compulsory license. We understand this a licensee ‘‘to file a single database proposed amended rules, though, this concern, but the rules allow a licensee notice including multiple works by would no longer be the case. A Notice to file a Notice with the Office only multiple owners.’’ DiMA Comment at 5. listing multiple works could be served when the registration records or other DiMA postulates that a single database on an agent working on behalf of public records of the Copyright Office Notice would make it demonstrably multiple copyright owners. Under these do not identify the copyright owner of easier to manage the information. RIAA/ circumstances, the Notice would have to the work and include an address, or NMPA/HFA agree with DiMA on this identify the copyright owner of each when the Notice is returned to the point. work, and so an amendment was sender because the copyright owner is The Office recognizes the efficiencies proposed to add this information to the no longer located at that address or for the licensee associated with DiMA’s Notice. refused to accept delivery. suggestion but it has chosen not to In response to this proposed change, Consequently, the Office does not find adopt this approach as a general rule at RIAA/NMPA/HFA assert that the need a requirement to affirmatively state that this time. Instead, the proposed rule to identify the copyright owner arises the licensee has completed the requires that a Notice list only the works only when the Notice is not served obligatory search to be an onerous one of the copyright owner being served but, directly on the copyright owner and and proposes to require the licensee to in the case of a Notice served on an suggest that the requirement apply only affirmatively state that the Office agent, the Notice may list the works of to Notices not served on a copyright records have been searched and that the multiple copyright owners as long as all owner directly. In theory we agree, and records do not include the name and the works listed on the Notice are recognize that it may be redundant to address of the copyright owner. owned or co-owned by copyright include the name of the copyright In addition, RIAA/NMPA/HFA has owners who have authorized the agent owner on the Notice in those instances asked the Office to ‘‘eliminate the to accept Notices on their behalf. The where the Notice is served directly on requirement that a licensee provide Office is taking this approach because the copyright owner. Nevertheless, we certain information concerning its section 115, which requires service of a recognize that all such Notices do not ownership, officers and directors, and Notice on the copyright owner, does not reach their intended destination. In substitute greatly simplified anticipate that the copyright owner these cases, the Notices may end up requirements that the licensee (1) should have to search a licensee’s being filed with the Copyright Office provides the name and title of the universal database Notice to determine and would have to include the name of licensee’s CEO, managing partner or the which of the copyright owner’s works a the copyright owner. Such Notices like and (2) identify the entity expected licensee intends to use pursuant to the should be complete on their face and to be actively engaged in the business of compulsory license. not require any further work on the part making and distributing, or authorizing However, in the case where the of the staff or the public to identify the the making and distribution of, copyright owner or agent has the ability copyright owner. Moreover, requiring phonorecords if the licensee is a holding to sort the information and is willing to that the Notice contain the name of the company, trust or other passive entity accept a database Notice submitted copyright owner will eliminate the need not actively engaged in such business.’’ electronically, the Office sees no reason to create multiple notice formats for While the current requirements to prohibit the use of such Notice and service on different entities. presumably are intended to benefit require in its place the more Consequently, the proposed rules copyright owners, see 37 CFR particularized Notice outlined in the require the identification of the 201.18(c)(1)(iii) and 201.19(f)(3)(iii), the proposed regulations. Thus, the copyright owner on all Notices. fact that NMPA and HFA propose that proposed rule leaves it to the discretion The Office also proposed adding a it be eliminated suggests that copyright of the licensee and the copyright owner requirement that, in the case where a owners would not be harmed by (or agent) to determine whether a person files the Notice with the removing it. In fact, RIAA/NMPA/HFA database Notice listing multiple works Copyright Office pursuant to by multiple owners is acceptable to both 3 Newly designated § 201.18(f)(1) provides that if § 201.18(e)(1),2 the Notice include an the licensee and the copyright owner/ the registration records or other public records of agent. In such situations, the licensee the Copyright Office do not identify the name and 2 This rule has been redesignated as § 201.18(f)(1) address of the copyright owner of a particular work, and the copyright owner/agent should under the proposed rules announced in this a Notice of Intention with respect to that work may work out the details associated with document. be filed with the Copyright Office.
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maintain that the current regulations are employed to verify that an electronic of a Notice, like most other Copyright not tailored to provide meaningful submission will be made under the Office fees, is based upon the Office’s information to the copyright owners and authority of the appropriate person—the costs in performing the service. See Fees may well impose a needless burden on regulations will not specify how a and Registration of Claims to Copyright, licensees. In light of these assertions by submission should be authenticated. 64 FR 29518 (June 1, 1999). Thus, the both copyright owners and users, the However, the Office intends to require Office intends to amend its rules to Office proposes to remove these that, in the case where a submission is require a filing fee in each instance requirements from the rules; but made electronically, a licensee and a where the Notice is filed with the because the proposal was not included copyright owner/agent develop Copyright Office without regard to the in the initial Notice of Proposed mutually acceptable protocols to verify licensee’s reason for filing the Notice Rulemaking, the Office is seeking public the authenticity of the person serving with the Office. comment on these issues for the Notice. While filing a Notice listing multiple consideration in preparing the final 9. Harmless errors. The statute titles simplifies the process for rule. requires that a person or entity who licensees, the Office still must index 8. Signature. The Office proposes to intends to use the compulsory license each title included on the Notice, further amend its rule to allow a duly give notice to the copyright owner of the thereby incurring costs for each title. authorized agent of the intended nondramatic musical work before or The current cost for filing a Notice of licensee to sign the Notice. An agent within thirty days after making, and Intention is $12. This fee may be who signs on behalf of the licensee before distributing any phonorecords of changed only after the Register has would have to be specifically authorized the work. The rules outline specific studied the costs incurred by the to execute the Notice on behalf of the elements that are to be included in each Copyright Office in connection with the licensee. A concise statement of Notice. This information helps the filing and has submitted the proposed authorization to that effect would have copyright owner identify which of his or change in the fee to Congress, which has to be included in the Notice. her works are being used under the 120 days to disapprove the change in RIAA/NMPA/HFA raise concerns that license. However, errors may occur in fee. 17 U.S.C. 708(a)(5), (b). The Register the proposed regulatory language may the preparation of these Notices, many will review the cost of processing ‘‘require specific resolution of a of which do not affect the legal multiple-title Notices and will present a licensee’s board of directors or a sufficiency of the Notice. For this proposal to modify this fee to Congress. certificate evidencing the agent’s reason, the Office proposes to adopt a Meanwhile, however, because the $12 authority,’’ and has suggested new paragraph (g) to § 201.18 to clarify fee would clearly be inadequate to cover alternative language to make clear that that such errors will be considered the costs of processing Notices of such procedures are not required. harmless and will not affect the validity Intention containing large numbers of Specifically, they have asked the Office of the Notice. titles, the proposed regulation will to remove the regulatory language that As stated in the initial notice of provide that for purposes of calculating requires the agent to be specifically proposed rulemaking, the Office does fees, a Notice which lists multiple authorized to execute the Notice and a not anticipate that it will have any role works shall be considered a composite concise statement of authorization to in resolving disputes about whether an filing of multiple Notices, and that fees that effect and in its place require that error in a Notice is harmless. shall be paid accordingly (i.e., a separate the Notice include only an affirmative RIAA/NMPA/HFA support this $12 fee shall be paid for each work statement that the agent is authorized to change and offer no further changes. listed in the Notice). It is anticipated execute the Notice on behalf of the DiMA also agrees with the change, that this fee for the filing of multiple- licensee. Since the purpose of the rule although it suggests that the rule does title Notices will be decreased is to insure that the person signing the not adequately address the major significantly when the Register makes Notice is either the licensee or a duly problems with the current system her fee proposal to Congress. authorized agent and the proposed concerning service and payment. The 11. Certificate of Filing.5 Section changes accomplish this goal without Office agrees with DiMA’s observation, 201.18(e)(1) of 37 CFR provided, in using language that would impose but notes that the proposed change is pertinent part, that ‘‘[u]pon request and unintended requirements on a licensee meant only to clarify that a Notice need payment of the fee specified in or its board of directors, the Office not be perfect to give proper notice of § 201.3(e), a Certificate of Filing [of a proposes to amend its regulation to use under the law. Nor is the rule to be Notice of Intention] will be provided to incorporate the proposed changes construed as a ‘‘safe harbor’’ for a the sender.’’ This Certificate of Filing is offered by RIAA/NMPA/HFA. licensee who fails to serve adequate The Copyright Office also intends to in addition to a written notice on the proper copyright owner in amend its regulations regarding acknowledgment of receipt and filing a timely manner. that the Office routinely provides to a signature to address the issues and 10. Fee for filing Notices of Intention.4 problems associated with making person who files a Notice. Section 201.18(e)(3) of 37 CFR provides, The Office has reexamined this rule service electronically. Currently, there in pertinent part, that when a Notice of are no regulations pertaining to and has determined that the issuance of Intention is filed with the Office a Certificate of Filing serves no useful electronic service, but as explained because the copyright owner is no earlier, the Office has considered the purpose, given that the Office routinely longer at the last address indicated in provides a written acknowledgment of comments offered on this issue and the Copyright Office’s records or has proposes to adopt regulations that receipt and filing. Moreover, a person refused to accept delivery, no filing fee who wishes to obtain official provide an option for electronic service. will be required. The Office proposed to Since this option is voluntary and the certification of the filing of a Notice of amend § 201.18(e) to remove this Intention may do so pursuant to the Office has not requested comment on provision. The fee charged for the filing this issue—nor has any party who 5 The citations to 37 CFR 201.18(e)(1) in this advocates and supports electronic 4 The citations to 37 CFR 201.18(e) in this section section refer to the rule prior to its redesignation service offered any suggestions as to the refer to the rule prior to its redesignation under the under the proposed rules announced in this appropriate methodology to be proposed rules announced in this document. document.
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existing regulations governing certified permit someone who intends to use the collective to receive and distribute the copies of Copyright Office records. See section 115 DPD license to rely upon a royalty payments on behalf of all 37 CFR 201.2(d). previously served Notice of Intention to affected copyright owners, the Librarian Because there is no identifiable reason use the section 115 mechanical license. adopted the stipulated term of payment. to incur the extra time and expense The benefits of such a provision for See 63 FR 25394 (May 8, 1998). associated with the issuance of a licensees are apparent, but copyright However, in that context the Librarian Certificate of Filing for each Notice that owners, who have had no opportunity of Congress has the power to establish is filed with the Copyright Office, the thus far to respond to DiMA’s proposal, the terms of royalty payments. See 17 Office intends to delete that portion of may well have compelling reasons to U.S.C. 114(f). The Office has no such § 201.18(e)(1) that provides for a oppose it. The Office is unwilling to authority under section 115. Moreover, Certificate of Filing from the Licensing consider such a proposal, which was because this rulemaking is directed only Division of the Copyright Office. not included in the initial notice of toward amending the current 12. Other issues. a. Safe harbor. proposed rulemaking, at this time regulations in order to streamline the Napster and DiMA advocate the creation without the benefit of further comment procedures for serving Notices of of a safe harbor to avoid any copyright from both copyright owners and users of Intention and Statements of Account, infringement liability which may occur the compulsory license. The Office the Office finds DiMA’s proposal to during the time it takes to implement invites elaboration on this proposal by designate a collective for the purpose of any desired electronic systems. In DiMA and comment on this proposal by collecting the section 115 royalties essence, these entities are asking for a copyright owners and other users of the beyond the scope of this proceeding. rule that would hold harmless any past compulsory license. In light of the DiMA has also asked the Copyright infringing activity in the case where an intention to publish a final rule shortly Office to adopt regulations to permit online service has not complied with after the close of the comment period, quarterly rather than monthly filing of the rules for obtaining a compulsory it is highly unlikely the final rule the statements of account and to permit license because of the difficulties promulgated in this proceeding will the withholding of fees below a certain associated with filing multiple Notices include such an innovation, but threshold level. It cites the or due to a dispute between the comments received on this issue will be administrative costs associated with the publishers and the services over the considered by the Office for possible distribution of de minimis fees and need for the license. Napster at 7; DiMA future action. speculates that on-line music services at 5 n.6. The Office has no authority to d. Royalty Payments and Statements may decide not to offer works of minor promulgate regulations that would of Account. DiMA seeks a regulation interest because the costs of effectively absolve a compulsory that would allow the Copyright Office or administering the license for these licensee from liability for past errors or an agent designated by the Copyright works is disproportionately high inadvertent errors under the new Office to receive payments of royalty compared to the royalties to be paid. procedures. See 63 FR 25394 (May 8, fees and statements of accounts. We The schedule of payment, however, is 1998) (rejecting proposed term in rate recognize that DiMA’s suggestion offers not an appropriate subject for a setting proceeding that would have efficiencies for licensees, but the rulemaking proceeding. Section limited liability of a statutory licensee to Copyright Office has no authority to 115(c)(5) requires a licensee to make acts which materially breach the adopt the proposed payment monthly payments. The only way to statutory license terms). mechanism through a notice and alter the schedule for payment is b. Database. DiMA asks the Office to comment proceeding. First, the through an amendment to the law. No establish a complete and up-to-date Copyright Office collects royalty fees agency has the authority to promulgate electronic database of all musical works only in three instances and in each case regulations that alter requirements set registered with the Copyright Office that Congress has expressly delegated the forth in the law. are still under copyright protection, responsibility to the Office. See 17 e. Filings with the Copyright Office. arguing that an electronic database will U.S.C. 111(d)(2), 119(b)(1), and 1005. DiMA suggests that the Office draft make it easier for all companies to Without similar statutory authority to regulations that would allow licensees search the registration files. Certainly, collect royalty fees under section 115, to offset costs associated with filing the creation of an all-inclusive database the Copyright Office cannot promulgate Notices with the Office in those is a laudable goal and deserves serious regulations directing or permitting a situations where the copyright owner consideration, but it is not the subject of compulsory licensee to make monthly wrongly refuses service. It suggests that this proceeding nor a realistic goal at royalty payments directly to the licensees might be allowed to deduct this time. Consequently, the Office has Copyright Office. Second, the Copyright the administrative costs associated with proposed modest changes to its Office cannot unilaterally designate an such filings from the royalty fees. Again, regulations that can be implemented entity as an agent to receive these fees. this is a subject beyond the scope of the immediately to the benefit of those In a past proceeding to set rates and current rulemaking proceeding and, companies that wish to utilize the terms for the section 114 license, the thus, it will not be considered at this statutory license in the immediate parties to that proceeding proposed a time. future. If needed, further amendments term to the Copyright Arbitration List of Subjects in 37 CFR Part 201 may be considered at a future time. Royalty Panel (‘‘CARP’’), the c. Extension of current mechanical administrative entity with the authority Copyright. licenses to cover DPDs. DiMA suggests and responsibility for adopting terms of Proposed Regulation that the Office promulgate ‘‘a minimal payment for that license, designating a set of regulations for the common single collective for the purpose of In consideration of the foregoing, the situation in which online entities will receiving and distributing the royalty Copyright Office proposes to amend part be distributing digital phonorecord fees. Recognizing the administrative 201 of 37 CFR as follows: deliveries of sound recordings already efficiencies for the interested parties PART 201—GENERAL PROVISIONS covered by a mechanical license.’’ and after finding that it was not contrary DiMA offers little explanation for its to law for the parties to the section 114 1. The authority citation for part 201 suggestion, which may be intended to rate setting proceeding to agree upon a continues to read as follows:
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Authority: 17 U.S.C. 702. works designated in the Notice is owned compulsory license, and if a business 2. Section 201.18 is revised to read as by any of the copyright owners who organization intends to obtain the follows: have authorized that agent to receive compulsory license, the name and title Notices. of the chief executive officer, managing § 201.18 Notice of intention to obtain a (5) For purposes of this section, a partner, sole proprietor or other person compulsory license for making and copyright owner or an agent of a similarly responsible for the distributing phonorecords of nondramatic copyright owner with authority to musical works. management of such entity. A post receive Notices of Intention may make office box or similar designation will (a) General. (1) A ‘‘Notice of public a written policy that it will not be sufficient for this purpose except Intention’’ is a Notice identified in accept Notices of Intention to make and where it is the only address that can be section 115(b) of title 17 of the United distribute phonorecords pursuant to 17 used in that geographic location. States Code, and required by that U.S.C. 115 which include less than all (iii) The information specified in section to be served on a copyright of the information required by this paragraphs (d)(1)(i) and (ii) of this owner or, in certain cases, to be filed in section, in a form different than section for the primary entity expected the Copyright Office, before or within required by this section, or delivered by to be engaged in the business of making thirty days after making, and before means (including electronic and distributing phonorecords under distributing any phonorecords of the transmission) other than those required the license or of authorizing such work, in order to obtain a compulsory by this section. Any Notice provided in making and distribution (for example: a license to make and distribute accordance with such policy shall not record company or digital music phonorecords of nondramatic musical be rendered invalid for failing to comply service), if an entity intending to obtain works. with the specific requirements of this the compulsory license is a holding (2) A Notice of Intention shall be section. company, trust or other entity that is not served or filed for nondramatic musical (6) For the purposes of this section, a works embodied, or intended to be expected to be actively engaged in the digital phonorecord delivery shall be business of making and distributing embodied, in phonorecords made under treated as a type of phonorecord the compulsory license. A Notice of phonorecords under the license or of configuration, and a digital phonorecord authorizing such making and Intention may designate any number of delivery shall be treated as a nondramatic musical works, provided distribution; phonorecord manufactured, made, and (iv) The fiscal year of the person or that the copyright owner of each distributed on the date the phonorecord entity intending to obtain the designated work or, in the case of any is digitally transmitted. compulsory license. If that fiscal year is work having more than one copyright (b) Agent. An agent who has authority a calendar year, the Notice shall state owner, any one of the copyright owners to accept Notices of Intention in that this is the case; is the same and that the information accordance with paragraph (a)(4) of this (v) For each nondramatic musical required under paragraphs (d)(1)(i)–(iv) section and who has received a Notice work embodied or intended to be of this section does not vary. For of Intention on behalf of a copyright embodied in phonorecords made under purposes of this section, a Notice which owner shall provide within two weeks the compulsory license: lists multiple works shall be considered of the receipt of that Notice of Intention (A) The title of the nondramatic a composite filing of multiple Notices the name and address of the copyright musical work; and fees shall be paid accordingly if owner or its agent upon whom the (B) The name of the author or authors, filed in the Copyright Office under person or entity intending to obtain the if known; paragraph (f) of this section (i.e., a compulsory license shall serve (C) A copyright owner of the work, if separate fee, in the amount set forth in Statements of Account and the monthly known; § 201.3(e)(1), shall be paid for each work royalty in accordance with (D) The types of all phonorecord listed in the Notice). § 201.19(a)(4). configurations already made (if any) and (3) For the purposes of this section, (c) Form. The Copyright Office does expected to be made under the the term copyright owner, in the case of not provide printed forms for the use of compulsory license (for example: Single any work having more than one persons serving or filing Notices of disk, long-playing disk, cassette, copyright owner, means any one of the Intention. cartridge, reel-to-reel, a digital co-owners. (d) Content. (1) A Notice of Intention phonorecord delivery, or a combination (4) For the purposes of this section, shall be clearly and prominently of them); service of a Notice of Intention on a designated, at the head of the notice, as (E) The expected date of initial copyright owner may be accomplished a ‘‘Notice of Intention to Obtain a distribution of phonorecords already by means of service of the Notice on Compulsory License for Making and made (if any) or expected to be made either the copyright owner or an agent Distributing Phonorecords,’’ and shall under the compulsory license; of the copyright owner with authority to include a clear statement of the (F) The name of the principal receive the Notice. In the case where the following information: recording artist or group actually work has more than one copyright (i) The full legal name of the person engaged or expected to be engaged in owner, the service of the Notice on any or entity intending to obtain the rendering the performances fixed on one of the co-owners of the nondramatic compulsory license, together with all phonorecords already made (if any) or musical work or upon an authorized fictitious or assumed names used by expected to be made under the agent of one of the co-owners identified such person or entity for the purpose of compulsory license; in the Notice of Intention shall be conducting the business of making and (G) The catalog number or numbers, sufficient with respect to all co-owners. distributing phonorecords; and label name or names, used or Notwithstanding paragraph (a)(2) of this (ii) The telephone number, the full expected to be used on phonorecords section, a single Notice may designate address, including a specific number already made (if any) or expected to be works not owned by the same copyright and street name or rural route of the made under the compulsory license; owner in the case where the Notice is place of business, and an e-mail and served on a common agent of multiple address, if available, of the person or (H) In the case of phonorecords copyright owners, and where each of the entity intending to obtain the already made (if any) under the
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compulsory license, the date or dates of musical works named in the Notice of agent of the copyright owner by sending such manufacture. Intention and include an address for the Notice by mail or delivering it by (vi) In the case where the Notice will such owner, the Notice may be served reputable courier service to the address be filed with the Copyright Office on such owner by mail sent to, or by of the copyright owner or agent of the pursuant to paragraph (f)(3) of this reputable courier service at, the last copyright owner. For purposes of section, the Notice shall include an address for such owner shown by the section 115(b)(1) of title 17 of the United affirmative statement that with respect records of the Office. It shall not be States Code, the Notice will not be to the nondramatic musical work named necessary to file a copy of the Notice in considered properly served if the Notice in the Notice of Intention, the the Copyright Office in this case. is not sent to the copyright owner or the registration records or other public (2) If the Notice is sent by mail or agent of the copyright owner as records of the Copyright Office have delivered by reputable courier service to described in paragraph (a)(4) of this been searched and found not to identify the last address for the copyright owner section, or if the Notice is sent to an the name and address of the copyright shown by the records of the Copyright incorrect address. owner of such work. Office and the Notice is returned to the (5) If a Notice is sent by certified mail (2) A ‘‘clear statement’’ of the sender because the copyright owner is or registered mail, a mailing receipt information listed in paragraph (d)(1) of no longer located at the address or has shall be sufficient to prove that service this section requires a clearly refused to accept delivery, the original was timely. In the absence of a receipt intelligible, legible, and unambiguous Notice as sent shall be filed in the of mailing by certified mail or registered statement in the Notice itself and Copyright Office. Notices of Intention mail, the person or entity intending to without incorporation by reference of submitted for filing under this obtain the compulsory license shall bear facts or information contained in other paragraph (f)(2) shall be submitted to the burden of proving that the Notice documents or records. the Licensing Division of the Copyright was served on the copyright owner or its (3) Where information is required to Office, shall be accompanied by a brief authorized agent in a timely manner. be given by paragraph (d)(1) of this statement that the Notice was sent to the (6) If a Notice served upon a copyright section ‘‘if known’’ or as ‘‘expected,’’ last address for the copyright owner owner or an authorized agent of a such information shall be given in good shown by the records of the Copyright copyright owner identifies more than 50 faith and on the basis of the best Office but was returned, and may be works that are embodied or intended to knowledge, information, and belief of accompanied by appropriate evidence be embodied in phonorecords made the person signing the Notice. If so that it was mailed to, or that delivery by under the compulsory license, the given, later developments affecting the reputable courier service was attempted copyright owner or authorized agent accuracy of such information shall not at, that address. In these cases, the may send the person who served the affect the validity of the Notice. Copyright Office will specially mark its Notice a demand that a list of each of (e) Signature. The Notice shall be records to consider the date the original the works so identified be resubmitted signed by the person or entity intending Notice was mailed, or the date delivery in an electronic format, along with a to obtain the compulsory license or by by courier service was attempted, if copy of the original Notice. The person a duly authorized agent of such person shown by the evidence mentioned who served the Notice must submit or entity. above, as the date of filing. An such a list, which shall include all of (1) If the person or entity intending to acknowledgment of receipt and filing the information required in paragraph obtain the compulsory license is a will be provided to the sender. (d)(1)(v) of this section, within 30 days corporation, the signature shall be that (3) If, with respect to the nondramatic after receipt of the demand from the of a duly authorized officer or agent of musical works named in the Notice of copyright owner or authorized agent. the corporation. Intention, the registration records or The list shall be submitted on magnetic (2) If the person or entity intending to other public records of the Copyright disk or another medium widely used at obtain the compulsory license is a Office do not identify the copyright the time for the electronic storage of partnership, the signature shall be that owner of such work and include an data, in the form of a flat file, word of a partner or of a duly authorized address for such owner, the Notice may processing document or spreadsheet agent of the partnership. be filed in the Copyright Office. Notices readable with computer software in (3) If the Notice is signed by a duly of Intention submitted for filing shall be wide use at such time, with the required authorized agent for the person or entity accompanied by the fee specified in information identified and/or delimited intending to obtain the compulsory § 201.3(e). A separate fee shall be so as to be readily discernible. The list license, the Notice shall include an assessed for each title listed in the may be submitted by means of affirmative statement that the agent is Notice. Notices of Intention will be filed electronic transmission (such as e-mail) authorized to execute the Notice of by being placed in the appropriate if the demand from the copyright owner Intention on behalf of the person or public records of the Licensing Division or authorized agent states that such entity intending to obtain the of the Copyright Office. The date of submission will be accepted. compulsory license. filing will be the date when the Notice (g) Harmless errors. Harmless errors (4) If the Notice is served and fee are both received in the in a Notice that do not materially affect electronically, the person or entity Copyright Office. An acknowledgment the adequacy of the information intending to obtain the compulsory of receipt and filing will be provided to required to serve the purposes of section license and the copyright owner shall the sender. 115(b)(1) of title 17 of the United States establish a procedure to verify that the (4) Alternatively, if the person or Code, shall not render the Notice Notice is being submitted upon the entity intending to obtain the invalid. authority of the person or entity compulsory license knows the name 3. Section 201.19 is amended as intending to obtain the compulsory and address of the copyright owner of follows: license. the nondramatic musical work, or the a. By revising paragraph (a)(3); (f) Filing and service. (1) If the agent of the copyright owner as b. By redesignating paragraphs (a)(4) registration records or other public described in paragraph (a)(4) of this through (a)(11) as paragraph (a)(5) records of the Copyright Office identify section, the Notice of Intention may be through (a)(12), respectively; the copyright owner of the nondramatic served on the copyright owner or the c. By adding a new paragraph (a)(4);
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d. By removing ‘‘subparagraph (B) of Statement of Account on one co-owner mail, the compulsory licensee shall bear this § 201.19(a)(5)(iii)’’ and adding or upon an agent of one of the co- the burden of proving that the Statement ‘‘paragraph (a)(7)(iii)(B) of this section’’ owners shall be sufficient with respect of Account was served on the copyright in its place each place it appears; to all co-owners. owner or its authorized agent in a timely e. By removing ‘‘paragraph (B) of this * * * * * manner. § 201.19(a)(5)(iii)’’ and adding (e) * * * (f) * * * ‘‘paragraph (a)(7)(iii)(B) of this section’’ (7) Service. (i) Each monthly (3) * * * in its place each place it appears; Statement of Account shall be served on (iii) If the compulsory licensee is a f. In newly designated paragraph the copyright owner or the agent with business organization, the name and (a)(7), by removing ‘‘paragraph (a)(5)’’ authority to receive Statements of title of the chief executive officer, and adding ‘‘paragraph (a)(6) of this Account on behalf of the copyright managing partner, sole proprietor or section’’ in its place; owner to whom or which it is directed, other person similarly responsible for g. In paragraph (c)(2)(iii), by removing together with the total royalty for the the management of such entity. ‘‘paragraph (a)(7)’’ and adding month covered by the Monthly * * * * * ‘‘paragraph (a)(10)’’ in its place; Statement, by mail or by reputable (7) Service. (i) Each Annual Statement h. In paragraph (d), by removing courier service on or before the 20th day ‘‘§ 201.19(a)(4)’’ and adding ‘‘paragraph of Account shall be served on the of the immediately succeeding month. copyright owner or the agent with (a)(5) of this section’’ in its place; However, in the case where the licensee i. By revising paragraph (e)(7)(i); authority to receive Statements of has served its Notice of Intention upon Account on behalf of the copyright j. By revising paragraph (e)(7)(ii)(A); an agent of the copyright owner k. In paragraph (e)(7)(ii)(B), by owner to whom or which it is directed pursuant to § 201.18, the licensee is not by mail or by reputable courier service removing ‘‘§ 202.19(e)(7)(ii)’’ and adding required to serve Statements of Account ‘‘this paragraph (e)(7)(ii)’’ in its place; on or before the twentieth day of the or make any royalty payments until the third month following the end of the l. In paragraph (e)(7)(ii)(D), by licensee receives from the agent with removing ‘‘this § 201.19(e)(7)(ii)’’ and fiscal year covered by the Annual authority to receive the Notice of Statement. It shall not be necessary to adding ‘‘this paragraph (e)(7)(ii)’’ in its Intention notice of the name and place; file a copy of the Annual Statement in address of the copyright owner or its the Copyright Office. An Annual m. By adding a new paragraph agent upon whom the licensee shall (e)(7)(iv); Statement of Account shall be served for serve Statements of Account and the each fiscal year during which at least n. By revising paragraph (f)(3)(iii); monthly royalty fees. Upon receipt of o. In paragraph (f)(4)(ii), by removing one Monthly Statement of Account shall this information, the licensee shall serve be served for each fiscal year during ‘‘paragraphs (A) through (F) of this Statements of Account and all royalty § 201.19(f)(4)(i)’’ and adding which at least one Monthly Statement of fees covering the intervening period Account was required to have been ‘‘paragraphs (f)(4)(i)(A) through (F) of upon the person or entity identified by this section’’ in its place; served under paragraph (e)(7) of this the agent with authority to receive the section. p. In paragraph (f)(5), by removing Notice of Intention by or before the 20th ‘‘[subject to paragraph (f)(3)(iii)(A)]’; day of the month following receipt of * * * * * q. By revising paragraph (f)(7)(i); the notification. It shall not be necessary (iii)(A) In any case where an Annual r. By revising paragraph (f)(7)(iii)(A); to file a copy of the Monthly Statement Statement of Account is sent by mail or s. In paragraph (f)(7)(iii)(B), by in the Copyright Office. by reputable courier service and is removing ‘‘§ 202.19(f)(7)(iii)’’ and (ii)(A) In any case where a Monthly returned to the sender because the adding ‘‘this paragraph (f)(7)(iii)’’ in its Statement of Account is sent by mail or copyright owner or agent is not located place; and reputable courier service and the at that address or has refused to accept t. By adding a new paragraph Monthly Statement of Account is delivery, or in any case where an (f)(7)(iv). returned to the sender because the address for the copyright owner is not The revisions and additions to copyright owner or agent is no longer known, the Annual Statement of § 201.19 read as follows: located at that address or has refused to Account, together with any evidence of accept delivery, or in any case where an mailing or attempted delivery by courier § 201.19 Royalties and statements of service, may be filed in the Licensing account under compulsory license for address for the copyright owner is not making and distributing phonorecords of known, the Monthly Statement of Division of the Copyright Office. Any nondramatic musical works. Account, together with any evidence of Annual Statement of Account submitted for filing shall be accompanied by a (a) * * * mailing or attempted delivery by courier brief statement of the reason why it was (3) For the purposes of this section, service, may be filed in the Licensing not served on the copyright owner. A the term copyright owner, in the case of Division of the Copyright Office. Any written acknowledgment of receipt and any work having more than one Monthly Statement of Account filing will be provided to the sender. copyright owner, means any one of the submitted for filing in the Copyright co-owners. Office shall be accompanied by a brief * * * * * (4) For the purposes of this section, statement of the reason why it was not (iv) If an Annual Statement of the service of a Statement of Account on served on the copyright owner. A Account is sent by certified mail or a copyright owner under paragraph written acknowledgment of receipt and registered mail, a mailing receipt shall (e)(7) or (f)(7) of this section may be filing will be provided to the sender. be sufficient to prove that service was accomplished by means of service on * * * * * timely. In the absence of a receipt of either the copyright owner or an agent (iv) If a Monthly Statement of mailing by certified mail or registered of the copyright owner with authority to Account is sent by certified mail or mail, the licensee shall bear the burden receive Statements of Account on behalf registered mail, a mailing receipt shall of proving that the Annual Statement of of the copyright owner. In the case be sufficient to prove that service was Account was served properly in a timely where the work has more than one timely. In the absence of a receipt of manner. copyright owner, the service of the mailing by certified mail or registered * * * * *
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Dated: March 8, 2004. ENVIRONMENTAL PROTECTION Nonattainment Review Definitions; Marybeth Peters, AGENCY 116.160, Prevention of Significant Register of Copyrights. Deterioration Requirements; and [FR Doc. 04–5595 Filed 3–10–04; 8:45 am] 40 CFR Part 52 116.162, Evaluation of Air Quality Impacts. The TCEQ adopted these BILLING CODE 1410–33–P [TX–165–1–7610; FRL–7635–1] revisions on October 10, 2001, and Approval and Promulgation of submitted the revisions to us for Implementation Plans; Texas; approval as a revision to the SIP on ENVIRONMENTAL PROTECTION Revisions to Regulations for Control of September 16, 2002. AGENCY Air Pollution by Permits for New 30 TAC section 116.12— Sources and Modifications Including Nonattainment Review. The previous 40 CFR Part 52 Incorporation of Marine Vessel State version of this section, which is Emissions in Applicability the existing SIP-approved version (see 65 FR 43994, July 17, 2000), excludes [CA 115–CMT; FRL–7635–3] Determinations the ‘‘activities of any vessel’’ from the AGENCY: Environmental Protection Approval and Promulgation of definition of ‘‘building, structure, Agency (EPA). Implementation Plans for California— facility, or installation.’’ The revised San Joaquin Valley PM–10 ACTION: Proposed rule. version that the State adopted on October 10, 2001, and that the State has Nonattainment Area; Serious Area Plan SUMMARY: EPA proposes to approve for Attainment of the 24-Hour and submitted for EPA’s approval, deletes revisions to the Texas State the ‘‘except the activities of any vessel’’ Annual PM–10 Standards; Reopening Implementation Plan (SIP). This of Public Comment Period clause from 116.12(4). Texas has includes revisions that the Texas explained that this change will allow Commission on Environmental Quality the inclusion of marine vessel emissions AGENCY: Environmental Protection (TCEQ) submitted to EPA on September Agency (EPA). in applicability determinations for 16, 2002, to revise the definitions of nonattainment permits. ACTION: Proposed rule; extension of ‘‘building, structure, facility, or 30 TAC section 116.160—Prevention public comment period. installation’’ and ‘‘secondary emissions’’ of Significant Deterioration as defined in section 116.12 and section Requirements. The previous State SUMMARY: EPA is reopening the 116.160. This also includes revisions to version of this section, which is the comment period for the proposed rule section 116.160 and section 116.162 to existing SIP-approved version (see 67 published February 4, 2004 (69 FR incorporate updated Federal regulation FR 58697, September 18, 2002), 5412), proposing to approve the ‘‘2003 citations. This action is being taken incorporates by reference the Federal PM10 Plan, San Joaquin Valley Plan to under section 110 of the Federal Clean Prevention of Significant Deterioration Attain Federal Standards for Particulate Air Act, as amended (the Act or CAA). (PSD) regulations at 40 CFR 52.21, as Matter 10 Microns and Smaller,’’ DATES: Comments on the proposed amended June 3, 1993. Those submitted on August 19, 2003, and action must be received by April 12, regulations excluded the ‘‘activities of Amendments to that plan submitted on 2004. any vessel’’ from the definition of December 30, 2003, as meeting the ADDRESSES: Comments may be ‘‘building, structure, facility, or Clean Air Act requirements applicable submitted electronically, by mail, or installation.’’ The revised version that to the San Joaquin Valley, California through hand delivery/courier. Follow the State adopted on October 10, 2001, PM–10 (particulate matter of 10 microns the detailed instructions as provided in and that the State has submitted for or less) nonattainment area. The original the General Information section of the EPA’s approval, excludes the CFR definition of ‘‘building, structure, comment period closed on March 5, SUPPLEMENTARY INFORMATION below. facility, or installation,’’ because the 2004. FOR FURTHER INFORMATION CONTACT: CFR definition includes language Stephanie Kordzi of the Air Permits DATES: The comment period on the vacated by the court in Natural proposed rule is reopened and Section at (214) 665–7520, or Resources Defense Council v. EPA, 725 comments must be received by March [email protected]. F.2d 761 (D.C. Cir. 1984) (see discussion 19, 2004. SUPPLEMENTARY INFORMATION: below under ‘‘Legal Background’’). Throughout this document ‘‘we,’’ ‘‘us,’’ Instead, the revised version of section ADDRESSES: Mail comments to Doris Lo, or ‘‘our’’ means EPA. 116.160 defines ‘‘building, structure, Planning Office (AIR2), EPA Region 9, facility, or installation’’ consistent with 75 Hawthorne Street, San Francisco, Table of Contents the definition in revised section 116.12, California, 94105. Comments may also I. What State Rules Are Being Addressed in discussed above. Texas has explained be submitted electronically to the Document? that this change will allow the inclusion [email protected] or through hand II. What is the legal basis for EPA’s proposed of marine vessel emissions in delivery/courier. approval of these State rules? applicability determinations for PSD III. Have the Requirements for a SIP Revision permits. In addition, the revised section FOR FURTHER INFORMATION CONTACT: Been Met? Doris Lo, Planning Office (AIR2), U.S. IV. What Action is EPA Taking? 116.160 replaces the definition of EPA, Region 9, 75 Hawthorne Street, V. General Information ‘‘secondary emissions’’ at 40 CFR 52.21 San Francisco, California, 94105. (415) VI. Statutory and Executive Order Reviews with language consistent with the NRDC 972–3959, email: [email protected]. decision. I. What State Rules Are Being The revised section 116.160 otherwise Dated: March 4, 2004. Addressed in This Document? incorporates the version of the Federal Keith Takata, In today’s action we are proposing to PSD air quality regulations promulgated Acting Regional Administrator, Region IX. approve into the Texas SIP revisions to at 40 CFR 52.21 in 1996, as well as the [FR Doc. 04–5509 Filed 3–10–04; 8:45 am] Title 30 of the Texas Administrative most recent version of 40 CFR 51.301 BILLING CODE 6560–50–P Code (30 TAC) sections 116.12, (amended 1999).
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Finally, revised subsections vacated 1982 regulations in section person listed in the FOR FURTHER 116.160(d) and (e) make minor changes 116.12(4) for NA and section 116.160(a) INFORMATION CONTACT section to such as clarifying references to the for PSD. schedule your inspection. The Regional ‘‘administrator’’ and ‘‘executive Final approval of the changes to Offices official hours of business are director.’’ section 116.12 and section 116.160(c) Monday through Friday, 8:30 a.m. to 30 TAC section 116.162, Evaluation of will grant full approval of the State’s 4:30 p.m., excluding Federal holidays. Air Quality Impacts. EPA approved the preconstruction permitting SIP for all 2. Copies of the State submittal and previous State version of this section sources, except for those sources located EPA’s Technical Support Document are into the SIP on August 19, 1997. 62 FR on land under the control of Indian also available for public inspection 44083. The new version submitted to governing bodies. These changes to during normal business hours, by EPA contains only minor typographical section 116.12 are not inconsistent with appointment at the State air agency: and citation changes. the requirements of the Clean Air Act. Texas Commission on Environmental Quality, Office of Air Quality, 12124 II. What Is the Legal Basis for EPA’s IV. What Action Is EPA Taking? Park 35 Circle, Austin, Texas 78753. Proposed Approval of These State We are approving as a revision to the 3. Electronic Access. You may access Rules? Texas SIP revisions of 30 TAC sections this Federal Register document Section 110 of the Act requires States 116.12, Nonattainment (NA) Review electronically through the to develop air pollution regulations and Definitions; 116.160, Prevention of Regulations.gov Web site at http:// control strategies to ensure that State air Significant Deterioration Requirements; www.regulations.gov where you can quality meets the National Ambient Air and 116.162, Evaluation of Air Quality find, review, and submit comments on Quality Standards. Each State must Impacts, which Texas submitted on Federal rules that have been published submit these regulations and control September 16, 2002. in the Federal Register, the strategies to us for approval and We are also proposing to revise 40 Government’s legal newspaper, and are incorporation into the Federally- CFR 52.2303, Significant deterioration open for comment. For public enforceable SIP. In order for State of air quality, as follows. First, we are commenters, it is important to note that regulations to be incorporated into the proposing to remove paragraph (d), EPA’s policy is that public comments, Federally-enforceable SIP, States must which retained applicable requirements whether submitted electronically or in formally adopt these regulations and of 40 CFR 52.21 for new major sources paper, will be made available for public control strategies consistent with State or major modifications to existing viewing at the EPA Regional Office, as and Federal requirements. Section 116 stationary sources for which EPA receives them and without change, of the Act provides that the States retain applicability determinations of PSD unless the comment contains the authority to adopt measures no less would be affected by dockside copyrighted material, CBI, or other stringent than federal requirements, emissions of vessels. Because the information the disclosure of which is unless otherwise preempted. regulations that we are approving today restricted by statute. When EPA Once a State adopts a rule, regulation, enable Texas to make PSD applicability identifies a comment containing or control strategy, the State may submit determinations for such sources, copyrighted material, EPA will provide it to us for inclusion into the SIP in paragraph (d) is no longer necessary. a reference to that material in the accordance with section 110 of the Act. Second, we are proposing to revise and version of the comment that is placed in We must then decide on an appropriate reorganize paragraph (a) to reflect the the official public rulemaking file. The Federal action, provide public notice current information concerning Texas’ entire printed comment, including the and seek additional comment regarding PSD program and to make paragraph (a) copyrighted material, will be available the proposed Federal action on the State easier to understand. at the Regional Office for public submission. If we receive relevant inspection. V. General Information adverse comments, we must address B. How and To Whom Do I Submit them before taking a final action. A. How Can I Get Copies of This Comments? Under section 110 of the Act, when Document and Other Related You may submit comments we approve all State regulations and Information? supporting information, those State electronically, by mail, or through hand regulations and supporting information 1. The Regional Office has established delivery/courier. To ensure proper become a part of the federally approved an official public rulemaking file receipt by EPA, identify the appropriate SIP. available for inspection at the Regional rulemaking identification number, TX– Additional details on the legal basis Office. EPA has established an official 165–1–7610, in the subject line on the for this proposed rule may be found in public rulemaking file for this action first page of your comment. Please the Technical Support Document (TSD) under TX–165–1–7610. The official ensure that your comments are for this action. public rulemaking file consists of the submitted within the specified comment documents specifically referenced in period. Comments received after the III. Have the Requirements for this action, any public comments close of the comment period will be Approval of a SIP Revision Been Met? received, and other information related marked ‘‘late.’’ EPA is not required to Currently, the State of Texas issues to this action. Although a part of the consider these late comments. and enforces PSD permits directly in all official docket, the official public 1. Electronically. If you wish to areas of the State without final approval rulemaking file does not include submit comments electronically (via e- by EPA, with the exception of Indian Confidential Business Information (CBI) mail, Regulations.gov, or on disk or CD– lands and situations where the or other information the disclosure of ROM), EPA recommends that you applicability determinations would be which is restricted by statute. The include your name, mailing address, affected by dockside emissions of official public rulemaking file is and an e-mail address or other contact vessels. As currently approved, Chapter available for public viewing at the Air information in the body of your 116 incorporates the PSD/ Permitting Section, EPA Region 6, 1445 comment. Also include this contact Nonattainment (NA) review permitting Ross Avenue, Dallas, TX. EPA requests information on the outside of any disk requirements and definitions from the that if at all possible you contact the or CD ROM you submit, and in any
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cover letter accompanying the disk or 7610’’ on the disk or CD ROM. These through the Regulations.gov Web site or CD ROM. This ensures that you can be electronic submissions will be accepted EPA’s e-mail system. For further advice identified as the submitter of the in WordPerfect, Word, or ASCII file on submitting CBI to the Agency, comment and allows EPA to contact you format. You should avoid the use of contact the person listed in the FOR in case EPA cannot read your comment special characters and any form of FURTHER INFORMATION CONTACT section of due to technical difficulties or needs encryption. this notice. further information on the substance of 2. By Mail. Send your comments to: your comment. The EPA’s policy is that Mr. David Neleigh, Chief, Air Permits D. What Should I Consider as I Prepare EPA will not edit your comments. Any Section (6PD–R), Environmental My Comments for EPA? identifying or contact information Protection Agency, 1445 Ross Avenue, You may find the following provided in the body of a comment will Suite 700, Dallas, Texas 75202–2733. suggestions helpful for preparing your be included as part of the comment that Please include the text ‘‘Public comments: is placed in the public rulemaking file. comment on ID No. TX–165–1–7610’’ in 1. Explain your views as clearly as If EPA cannot read your comment due the subject line of the first page of your possible. to technical difficulties and cannot comments. 2. Describe any assumptions that you contact you for clarification, EPA may 3. By Hand Delivery or Courier. used. not be able to consider your comment. Deliver your written comments or 3. Provide any technical information a. E-mail Comments may be submitted comments on a disk or CD ROM to: Mr. and/or data you used that support your by electronic mail (e-mail) to Ms. David Neleigh, Chief, Air Permits views. Stephanie Kordzi at Section (6PD–R), Environmental 4. If you estimate potential burden or [email protected], Subject Protection Agency, 1445 Ross Avenue, costs, explain how you arrived at your Suite 700, Dallas, Texas 75202–2733, ‘‘Public comment on ID No. TX–165–1– estimate. Attention ‘‘Public comment on ID No. 7610.’’ In contrast to the Regulations.gov 5. Provide specific examples to TX–165–1–7610.’’ Such deliveries are Web site, EPA’s e-mail system is not an illustrate your concerns. ‘‘anonymous’’ system. If you send an e- only accepted during official hours of 6. Offer alternatives. mail comment directly to EPA, your e- business, which are Monday through mail address will be automatically Friday, 8:30 a.m. to 4:00 p.m., excluding 7. Make sure to submit your captured and included as part of the Federal holidays. comments by the comment period comment that is placed in the official 4. By Facsimile. Fax your comments deadline identified. public rulemaking file. to: (214) 665–7263, Attention ‘‘Public 8. To ensure proper receipt by EPA, b. Regulations.gov. Comments may be comment on ID No. TX–165–1–7610.’’ identify the appropriate ID No. in the submitted electronically at the subject line on the first page of your C. How Should I Submit CBI to the response. It would also be helpful if you Regulations.gov Web site, the central Agency? online rulemaking portal of the United provided the name, date, and Federal States government. Every effort is made You may assert a business Register citation related to your to ensure that the Web site includes all confidentiality claim covering CBI comments. included in comments submitted by rule and proposed rule notices that are VI. Statutory and Executive Order mail or hand delivery in either paper or currently open for public comment. You Reviews may access the Regulations.gov Web site electronic format. CBI should not be at http://www.regulations.gov. Select submitted via e-mail or at the Under Executive Order 12866 (58 FR ‘‘Environmental Protection Agency’’ at Regulations.gov Web site. Clearly mark 51735, October 4, 1993), this proposed the top of the page and click on the any part or all of the information action is not a ‘‘significant regulatory ‘‘Go’’ button. The list of current EPA submitted which is claimed as CBI at action’’ and therefore is not subject to actions available for comment will be the time the comment is submitted to review by the Office of Management and displayed. Select the appropriate action EPA. CBI should be submitted Budget. For this reason, this proposed and follow the online instructions for separately, if possible, to facilitate action is also not subject to Executive submitting comments. Unlike EPA’s e- handling by EPA. Submit one complete Order 13211, ‘‘Actions Concerning mail system, the Regulations.gov Web version of the comment that includes Regulations That Significantly Affect site is an ‘‘anonymous’’ system, which the properly labeled CBI for EPA’s Energy Supply, Distribution, or Use’’ (66 means that any personal information, e- official administrative record and one FR 28355, May 22, 2001). This action mail address, or other contact copy that does not contain the CBI to be merely proposes to approve State law as information will not be collected unless included in the public rulemaking file. meeting Federal requirements and it is provided in the text of the If you submit CBI on a disk or CD ROM, imposes no additional requirements comment. See the Privacy Notice at the mark the outside of the disk or the CD beyond those imposed by State law. Regulations.gov Web site for further ROM as CBI and then identify Accordingly, the Administrator certifies information. Please be advised that EPA electronically within the disk or CD that this proposed rule will not have a cannot contact you for any necessary ROM the specific information that is significant economic impact on a clarification unless your contact CBI. Also submit a non-CBI version if substantial number of small entities information is included in the body of possible. Information which is properly under the Regulatory Flexibility Act (5 comments submitted through the labeled as CBI and submitted by mail or U.S.C. 601 et seq.). Because this rule Regulations.gov Web site. hand delivery will be disclosed only in proposes to approve pre-existing c. Disk or CD ROM. You may submit accordance with procedures set forth in requirements under State law and does comments on a disk or CD ROM that 40 CFR part 2. For comments submitted not impose any additional enforceable you mail to: Mr. David Neleigh, Chief, by EPA’s e-mail system or through the duty beyond that required by State law, Air Permits Section (6PD–R), Regulations.gov Web site, no CBI claim it does not contain any unfunded Environmental Protection Agency, 1445 may be asserted. Do not submit CBI to mandate or significantly or uniquely Ross Avenue, Suite 700, Dallas, Texas the Regulations.gov Web site or via affect small governments, as described 75202–2733. Please include the text EPA’s e-mail system. Any claim of CBI in the Unfunded Mandates Reform Act ‘‘Public comment on ID No. TX–165–1– will be waived for comments received of 1995 (Pub. L. 104–4).
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This proposed rule also does not have ENVIRONMENTAL PROTECTION Ozone Transport Region (OTR) and tribal implications because it will not AGENCY required those areas to address the have a substantial direct effect on one or shortfalls. The Ozone Transport more Indian tribes, on the relationship 40 CFR Part 52 Commission (OTC) developed model between the Federal Government and [PA211–4224; FRL–7634–8] rules of control measures for a number Indian tribes, as specified by Executive of source categories and estimated the Order 13175 (65 FR 67249, November 9, Approval and Promulgation of Air emission reduction benefits from 2000). This proposed action also does Quality Implementation Plans; implementing those model rules. The not have Federalism implications Pennsylvania; Control of Volatile OTC AIM coatings model rule was because it does not have substantial Organic Compound Emissions From based on the existing rules developed by direct effects on the States, on the AIM Coatings the California Air Resources Board, relationship between the national which were analyzed and modified by AGENCY: government and the States, or on the Environmental Protection the OTC workgroup to address VOC distribution of power and Agency (EPA). reduction needs in the OTR. The responsibilities among the various ACTION: Proposed rule. standards and requirements contained levels of government, as specified in in Pennsylvania’s AIM coatings rule are SUMMARY: EPA is proposing to approve Executive Order 13132 (64 FR 43255, consistent with the OTC model rule. a State Implementation Plan (SIP) Versions of this same model rule to August 10, 1999). This action merely revision submitted by the proposes to approve a State rule control VOC emissions from AIM Commonwealth of Pennsylvania. This coatings has been or is currently being implementing a Federal standard, and revision pertains to the control of does not alter the relationship or the adopted in several states in the volatile organic compound (VOC) Northeastern and Mid-Atlantic regions distribution of power and emissions from architectural and responsibilities established in the Clean of the United States. As such this industrial maintenance (AIM) coatings. regulation does not impose Air Act. This proposed rule also is not DATES: Written comments must be requirements unique to the subject to Executive Order 13045, received on or before April 12, 2004. Commonwealth of Pennsylvania. ‘‘Protection of Children from Environmental Health Risks and Safety ADDRESSES: Comments may be II. Summary of SIP Revision Risks’’ (62 FR 19885, April 23, 1997), submitted either by mail or electronically. Written comments The Pennsylvania AIM coatings rule because it is not economically (Chapter 130, subpart C) applies to any significant. should be mailed to Makeba Morris, Chief, Air Quality Planning Branch, person who supplies, sells, offers for In reviewing SIP submissions, EPA’s Mailcode 3AP21, U.S. Environmental sale, or manufactures, blends or role is to approve State choices, Protection Agency, Region III, 1650 repackages an AIM coating for use within the Commonwealth of provided that they meet the criteria of Arch Street, Philadelphia, Pennsylvania Pennsylvania, as well as a person who the Clean Air Act. In this context, in the 19103. Electronic comments should be applies or solicits the application of an absence of a prior existing requirement sent either to [email protected] or AIM coating within the Commonwealth. for the State to use voluntary consensus to http://www.regulations.gov, which is The rule does not apply to the standards (VCS), EPA has no authority an alternative method for submitting following: (1) Any AIM coating that is to disapprove a SIP submission for electronic comments to EPA. To submit sold or manufactured for use outside the failure to use VCS. It would thus be comments, please follow the detailed Commonwealth or for shipment to other inconsistent with applicable law for instructions described in Part III of the EPA, when it reviews a SIP submission, manufacturers for reformulation or SUPPLEMENTARY INFORMATION section. repackaging; (2) any aerosol coating to use VCS in place of a SIP submission Copies of the documents relevant to this that otherwise satisfies the provisions of product; or (3) any architectural coating action are available for public that is sold in a container with a volume the Clean Air Act. Thus, the inspection during normal business requirements of section 12(d) of the of one liter (1.057 quarts) or less. The hours at the Air Protection Division, rule sets specific VOC content limits, in National Technology Transfer and U.S. Environmental Protection Agency, Advancement Act of 1995 (15 U.S.C. grams per liter, for AIM coating Region III, 1650 Arch Street, categories with a compliance date of 272 note) do not apply. This proposed Philadelphia, Pennsylvania 19103; and rule does not impose an information January 1, 2005. Manufacturers would the Pennsylvania Department of ensure compliance with the limits by collection burden under the provisions Environmental Protection, Bureau of Air reformulating coatings and substituting of the Paperwork Reduction Act of 1995 Quality, P.O. Box 8468, 400 Market coatings with compliant coatings that (44 U.S.C. 3501 et seq.). Street, Harrisburg, Pennsylvania 17105. are already in the market. The rule List of Subjects in 40 CFR Part 52 FOR FURTHER INFORMATION CONTACT: Rose contains VOC content requirements for Quinto, (215) 814–2182, or by e-mail at a wide variety of field-applied coatings, Environmental protection, Air [email protected]. including graphic arts coatings, pollution control, Carbon monoxide, SUPPLEMENTARY INFORMATION: On lacquers, primers and stains. The rule Intergovernmental relations, Lead, December 3, 2003, the Pennsylvania also contains provisions for a variance Nitrogen oxides, Ozone, Particulate Department of Environmental Protection from the VOC content limits, which can matter, Reporting and recordkeeping (PADEP) submitted a formal revision to be issued only after public hearing and requirements, Sulfur oxides, Volatile its SIP. The SIP revision consists of the with conditions for achieving timely organic compounds. standards and requirements to control compliance. In addition, the rule Dated: February 24, 2004. VOC emissions from AIM coatings. contains administrative requirements for labeling and reporting. There are a Richard E. Greene, I. Background number of test methods that would be Regional Administrator, Region 6. In December 1999, EPA identified used to demonstrate compliance with [FR Doc. 04–5511 Filed 3–10–04; 8:45 am] emission reduction shortfalls in several this rule. Some of these test methods BILLING CODE 6560–50–P 1-hour ozone nonattainment areas in the include those promulgated by EPA and
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South Coast Air Quality Management captured by EPA’s e-mail system are In addition to one complete version of District of California. The test methods included as part of the comment that is the comment that includes any used to test coatings must be the most placed in the official public docket. information claimed as CBI, a copy of current approved method at the time ii. Regulations.gov. Your use of the comment that does not contain the testing is performed. Regulations.gov is an alternative method information claimed as CBI must be III. Proposed Action of submitting electronic comments to submitted for inclusion in the official EPA. Go directly to http:// public regional rulemaking file. If you EPA is proposing to approve the www.regulations.gov, then select submit the copy that does not contain Pennsylvania SIP revision for the ‘‘Environmental Protection Agency’’ at CBI on disk or CD ROM, mark the control of VOC emissions from AIM the top of the page and use the ‘‘go’’ outside of the disk or CD ROM clearly coatings submitted on December 3, button. The list of current EPA actions that it does not contain CBI. Information 2003. The Pennsylvania AIM rule is part available for comment will be listed. not marked as CBI will be included in of the Commonwealth’s strategy to Please follow the online instructions for the public file and available for public achieve and maintain the ozone submitting comments. The system is an inspection without prior notice. If you standard throughout the ‘‘anonymous access’’ system, which have any questions about CBI or the Commonwealth. EPA is soliciting public means EPA will not know your identity, procedures for claiming CBI, please comments on the issues discussed in e-mail address, or other contact consult the person identified in the FOR this document. These comments will be information unless you provide it in the FURTHER INFORMATION CONTACT section. considered before taking final action. body of your comment. Interested parties may participate in the Considerations When Preparing iii. Disk or CD ROM. You may submit Federal rulemaking procedure by Comments to EPA comments on a disk or CD ROM that submitting either electronic or written you mail to the mailing address You may find the following comments. To ensure proper receipt by identified in the ADDRESSES section of suggestions helpful for preparing your EPA, identify the appropriate this document. These electronic comments: rulemaking identification number submissions will be accepted in 1. Explain your views as clearly as PA211–4224 in the subject line on the WordPerfect, Word or ASCII file format. possible. first page of your comment. Please 2. Describe any assumptions that you ensure that your comments are Avoid the use of special characters and any form of encryption. used. submitted within the specified comment 3. Provide any technical information 2. By Mail. Written comments should period. Comments received after the and/or data you used that support your be addressed to the EPA Regional office close of the comment period will be views. marked ‘‘late.’’ EPA is not required to listed in the ADDRESSES section of this 4. If you estimate potential burden or consider these late comments. document. costs, explain how you arrived at your 1. Electronically. If you submit an For public commenters, it is estimate. electronic comment as prescribed important to note that EPA’s policy is 5. Provide specific examples to below, EPA recommends that you that public comments, whether illustrate your concerns. include your name, mailing address, submitted electronically or in paper, 6. Offer alternatives. and an e-mail address or other contact will be made available for public 7. Make sure to submit your information in the body of your viewing at the EPA Regional Office, as comments by the comment period comment. Also include this contact EPA receives them and without change, deadline identified. information on the outside of any disk unless the comment contains 8. To ensure proper receipt by EPA, or CD ROM you submit, and in any copyrighted material, confidential identify the appropriate regional file/ cover letter accompanying the disk or business information (CBI), or other rulemaking identification number in the CD ROM. This ensures that you can be information whose disclosure is subject line on the first page of your identified as the submitter of the restricted by statute. When EPA response. It would also be helpful if you comment and allows EPA to contact you identifies a comment containing provided the name, date, and Federal in case EPA cannot read your comment copyrighted material, EPA will provide Register citation related to your due to technical difficulties or needs a reference to that material in the comments. further information on the substance of version of the comment that is placed in your comment. EPA’s policy is that EPA the official public rulemaking file. The IV. Statutory and Executive Order will not edit your comment, and any entire printed comment, including the Reviews identifying or contact information copyrighted material, will be available Under Executive Order 12866 (58 FR provided in the body of a comment will at the Regional Office for public 51735, October 4, 1993), this proposed be included as part of the comment that inspection. action is not a ‘‘significant regulatory is placed in the official public docket. action’’ and therefore is not subject to Submittal of CBI Comments If EPA cannot read your comment due review by the Office of Management and to technical difficulties and cannot Do not submit information that you Budget. For this reason, this action is contact you for clarification, EPA may consider to be CBI electronically to EPA. also not subject to Executive Order not be able to consider your comment. You may claim information that you 13211, ‘‘Actions Concerning Regulations i. E-mail. Comments may be sent by submit to EPA as CBI by marking any That Significantly Affect Energy Supply, electronic mail (e-mail) to part or all of that information as CBI (if Distribution, or Use’’ (66 FR 28355 (May [email protected], attention: you submit CBI on disk or CD ROM, 22, 2001)). This action merely proposes PA211–4224. EPA’s e-mail system is not mark the outside of the disk or CD ROM to approve state law as meeting Federal an ‘‘anonymous access’’ system. If you as CBI and then identify electronically requirements and imposes no additional send an e-mail comment directly within the disk or CD ROM the specific requirements beyond those imposed by without going through Regulations.gov, information that is CBI). Information so state law. Accordingly, the EPA’s e-mail system automatically marked will not be disclosed except in Administrator certifies that this captures your e-mail address. E-mail accordance with procedures set forth in proposed rule will not have a significant addresses that are automatically 40 CFR part 2. economic impact on a substantial
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number of small entities under the Guidelines for the Evaluation of Risk back to the vessel’s foreign owner, the Regulatory Flexibility Act (5 U.S.C. 601 and Avoidance of Unanticipated parent of the owner, a subsidiary or et seq.). Because this rule proposes to Takings’’ issued under the executive affiliate of the parent, or an officer, approve pre-existing requirements order. director, or shareholder of one of them. under state law and does not impose This proposed rule pertaining to any additional enforceable duty beyond Pennsylvania’s AIM rule, does not DATES: The public meeting will be held that required by state law, it does not impose an information collection on April 2, 2004, from 9 a.m. to 3 p.m. contain any unfunded mandate or burden under the provisions of the The meeting may close early if all significantly or uniquely affect small Paperwork Reduction Act of 1995 (44 business is finished. governments, as described in the U.S.C. 3501 et seq.). ADDRESSES: The public meeting will be Unfunded Mandates Reform Act of 1995 List of Subjects in 40 CFR Part 52 held at the Department of (Pub. L. 104–4). This proposed rule also Transportation, Nassif Building, room does not have a substantial direct effect Environmental protection, Air 2230, 400 Seventh Street SW., on one or more Indian tribes, on the pollution control, Intergovernmental Washington, DC 20590. In order to enter relations, Ozone, Reporting and relationship between the Federal the Nassif Building, provide the names recordkeeping requirements, Volatile Government and Indian tribes, or on the of persons planning to attend the organic compounds. distribution of power and meeting and the company or responsibilities between the Federal Authority: 42 U.S.C. 7401 et seq. organizations they represent to Robert S. Government and Indian tribes, as Spears at the address under FOR specified by Executive Order 13175 (65 Dated: March 2, 2004. FURTHER INFORMATION CONTACT at least FR 67249, November 9, 2000), nor will Thomas C. Voltaggio, two days before the meeting. it have substantial direct effects on the Acting Regional Administrator, Region III. States, on the relationship between the [FR Doc. 04–5510 Filed 3–10–04; 8:45 am] FOR FURTHER INFORMATION CONTACT: If national government and the States, or BILLING CODE 6560–50–P you have questions on the public on the distribution of power and meeting, call Robert S. Spears, Office of responsibilities among the various Standards Evaluation and Development levels of government, as specified in DEPARTMENT OF HOMELAND (G–MSR), U.S. Coast Guard Executive Order 13132 (64 FR 43255, SECURITY Headquarters, telephone 202–267–1099 August 10, 1999), because it merely or e-mail [email protected]. proposes to approve a state rule Coast Guard implementing a Federal standard, and SUPPLEMENTARY INFORMATION: The Coast does not alter the relationship or the 46 CFR Part 67 Guard and the Maritime Administration distribution of power and will hold a public meeting on their joint [USCG–2003–14472] responsibilities established in the Clean notice of proposed rulemaking Air Act. This proposed rule also is not RIN 1625–AA63 published in the Federal Register on subject to Executive Order 13045 (62 FR February 4, 2004 (69 FR 5403). DEPARTMENT OF TRANSPORTATION 19885, April 23, 1997), because it is not Procedural economically significant. In reviewing SIP submissions, EPA’s Maritime Administration The meeting is open to the public. role is to approve state choices, Non-Federal Government visitors must provided that they meet the criteria of 46 CFR Part 221 enter the Nassif Building (DOT the Clean Air Act. In this context, in the [Docket No. MARAD–2003–15171] Headquarters) through the southwest absence of a prior existing requirement security entrance near the corner of for the State to use voluntary consensus RIN 2133–AB51 Seventh and E Streets. Security staff will compare the visitor’s photo standards (VCS), EPA has no authority Vessel Documentation: Lease to disapprove a SIP submission for Financing for Vessels Engaged in the identification card with the names on failure to use VCS. It would thus be Coastwise Trade; Second Rulemaking the list of meeting attendees. Visitors inconsistent with applicable law for will be escorted to and from the meeting EPA, when it reviews a SIP submission, AGENCIES: Coast Guard, DHS, and rooms. There is limited commercial to use VCS in place of a SIP submission Maritime Administration, DOT. parking in the area (at Sixth and School that otherwise satisfies the provisions of ACTION: Proposed rule; notice of public Streets Southwest and at Sixth and D the Clean Air Act. Thus, the meeting. Streets Southwest) and a Metrorail stop requirements of section 12(d) of the (L’Enfant Plaza) in the building. National Technology Transfer and SUMMARY: The Coast Guard and the Attendees may make oral presentations Advancement Act of 1995 (15 U.S.C. Maritime Administration will hold a during the meeting. Please note that the 272 note) do not apply. As required by public meeting on their joint notice of meeting may close early if all business section 3 of Executive Order 12988 (61 proposed rulemaking published in the is finished. FR 4729, February 7, 1996), in issuing Federal Register on February 4, 2004 this proposed rule, EPA has taken the (69 FR 5403). In that document, the Information on Services for Individuals necessary steps to eliminate drafting Coast Guard proposes to amend its With Disabilities errors and ambiguity, minimize regulations on documentation, under For information on facilities or potential litigation, and provide a clear the lease-financing provisions, of services for individuals with disabilities legal standard for affected conduct. EPA vessels engaged in the coastwise trade. has complied with Executive Order The Maritime Administration (MARAD) or to request special assistance at the 12630 (53 FR 8859, March 15, 1988) by proposes to amend its regulations to meeting, contact Robert S. Spears at the examining the takings implications of require MARAD’s approval of all address under FOR FURTHER INFORMATION the rule in accordance with the transfers of the use of a lease-financed CONTACT as soon as possible. ‘‘Attorney General’s Supplemental vessel engaged in the coastwise trade Dated: March 5, 2004.
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By Order of the Maritime Administrator: Murray A. Bloom, Acting Secretary, Maritime Administration. Joseph J. Angelo, Director of Standards, Marine Safety, Security, and Environmental Protection, Coast Guard. [FR Doc. 04–5422 Filed 3–10–04; 8:45 am] BILLING CODE 4910–15–P
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Notices Federal Register Vol. 69, No. 48
Thursday, March 11, 2004
This section of the FEDERAL REGISTER Form SF–181 is requested, but optional, the Board. In making selections, every contains documents other than rules or and is available at http://www.fas.usda. effort will be made to maintain balanced proposed rules that are applicable to the gov/admin/sf181.pdf. Persons with representation of the various broad public. Notices of hearings and investigations, disabilities who require an alternative industries within the United States as committee meetings, agency decisions and means for communication of well as geographic diversity. rulings, delegations of authority, filing of petitions and applications and agency information (Braille, large print, Dated: February 23, 2004. statements of organization and functions are audiotape, etc.) shoudl contact USDA’s A. Ellen Terpstra, Target Center at (202) 720–2600 (voice examples of documents appearing in this Administrator, Foreign Agricultural Service. section. and TDD). [FR Doc. 04–5497 Filed 3–10–04; 8:45 am] SUPPLEMENTARY INFORMATION: The Board is authorized by section 261(h) of the BILLING CODE 3410–10–M DEPARTMENT OF AGRICULTURE Federal Agriculture Improvement and Reform Act of 1996. The overall purpose DEPARTMENT OF AGRICULTURE Office of the Secretary of the Board is to provide the Secretary Edward R. Madigan United States of Agriculture with advice and Farm Service Agency Agricultural Export Excellence Board recommendations for the selection of of Evaluators: Nominations recipients of the Edward R. Madigan Notice of Funds Availability; Tree United States Agricultural Export Assistance Program for Michigan Tree, AGENCY: Office of the Secretary, USDA. Excellence Award. The Board is Vine and Bush Losses Due to Fire ACTION: Edward R. Madigan United composed of six (6) representatives from Blight States Agricultural Export Excellence the private sector selected for their AGENCY: Farm Service Agency, USDA. Board of Evaluators: Nominations. knowledge and experience in exporting U.S. agricultural products. More ACTION: Notice. SUMMARY: Notice is hereby given that information about the purpose and nominations are being sought for six (6) SUMMARY: This notice announces the function of the Board and can be found availability of $9,700,000 for the Tree qualified persons to serve on the at: http://www.fas.usda.gov/info/ Edward R. Madigan United states Assistance Program (TAP) to provide madigan/madigan.html. assistance to orchardists who had tree, Agricultural Export Excellence Board of The members of the Board are vine or bush losses in Michigan due to Evaluators (Board). The role of the appointed by the Secretary of fire blight that occurred since January 1, Board is to provide the Secretary of Agriculture and serve at the discretion 2000. Agriculture with advice and of the Secretary. Board members serve at recommendations for the selection of their own expense; they are not DATES: Applications will be accepted recipients of the Edward R. Madigan compensated for their services and do until March 25, 2004, or such other date United States Agricultural Export not receive per diem or travel funds. as announced by the Deputy Excellence Award. Three (3) members will be selected for Administrator for Farm Programs of the DATES: Written nominations must be 2-year term maximums and three (3) Farm Service Agency (FSA). received by the Foreign Agricultural others for 3-year term maximums. The FOR FURTHER INFORMATION CONTACT: Service (FAS) by 5 p.m., Eastern Secretary may renew an appointment Eloise Taylor, Chief, Compliance Daylight Time, April 12, 2004. for one or more additional terms. The Branch, Production, Emergencies and ADDRESSES: All nominating materials Board shall meet as often as the Compliance Division, FSA/USDA, Stop should be sent to Mr. James Warden, Secretary of Agriculture deems 0517, 1400 Independence Avenue SW., United States Department of necessary either in person or via Washington, DC 20250–0517; telephone Agriculture, Foreign Agricultural teleconference to review nominations (202) 720–9882; e-mail: Service, Room 4939S–Stop 1052, 1400 and make recommendations. [email protected]. Persons Independence Avenue, SW., Nominations are open to all with disabilities who require alternative Washington, DC 20250–1052. Forms individuals without regard to race, means for communication of regulatory may also be submitted by fax to (202) color, religion, sex, national origin, age, information, (Braille, large print, 690–0193. physical handicap, marital status, or audiotape, etc. should contact USDA’s FOR FURTHER INFORMATION CONTACT: sexual orientation. To ensure that the TARGET Center at (202) 720–2600 Persons interested in serving on the work of the Board takes into account the (voice and TDD). Edward R. Madigan United States needs of the diverse groups served by SUPPLEMENTARY INFORMATION: Agricultural Export Excellence Board of USDA, membership shall include, to the Evaluators, or in nominating individuals extent practicable, individuals with Background to serve, should contact Mr. James demonstrated ability to represent the TAP was authorized but not funded Warden, Foreign Agricultural Service, interest of minorities, women and by section 10201 of the Farm Security by telephone (202) 720–6343, by fax persons with disabilities. and Rural Investment Act of 2002 (Pub. (202) 690–0193, or by electronic mail to Members are selected primarily for L. 107–171) (7 U.S.C. 8201) to provide [email protected] and request their knowledge and experience in assistance to eligible orchardists to Form AD–755 and Form SF–181. Form exporting U.S. agricultural products. No replant trees, bushes and vines that AD–755 is required and is available at person, company, producer, farm were grown for the production of an the FAS home page: http:// organization, trade association or other annual crop and were lost due to a www.fas.usda.gov/admin/ad755.pdf. entity has a right to representation on natural disaster. This notice sets out a
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special program within TAP for certain A complete application will include the Secretary of Agriculture (the fire blight losses in Michigan. Fire blight all of the following: Secretary) to establish the Committee for is a destructive bacterial disease of trees (1) A form provided by FSA; the purpose of advising the Secretary on caused by Erwinia Amylovora that (2) A written estimate of the number the following: attacks succulent tissues of blossoms, of trees, bushes or vines lost or damaged (1) The development of a program of shoots, water sprouts and root suckers, which is prepared by the owner or coordinated financial assistance to and produces an infection that may someone who is a qualified expert, as qualified beginning farmers and extend into scaffold limbs, trunks or determined by the FSA county ranchers required by section 309(i) of root systems, and may kill the tree. committee; the Consolidated Farm and Rural Section 3602 of the Emergency (3) The number of acres on which the Development Act (7 U.S.C. 1929). Under Supplemental Appropriations Act, 2003 loss was suffered; the program, Federal and State (Pub. L. 108–83) provides that the (4) Sufficient evidence of the loss to beginning farmer programs provide Secretary of Agriculture shall use allow the county committee to calculate financial assistance to beginning farmers $9,700,000 of the funds of the whether an eligible loss occurred; and and ranchers; Commodity Credit Corporation, to (5) Other information as requested or (2) Methods of maximizing the remain available until expended, to required by regulation. number of new farming and ranching provide assistance under TAP to Signed at Washington, DC March 2, 2004. opportunities created through the compensate eligible orchardists for tree James R. Little, program; (3) Methods of encouraging States to losses incurred since January 1, 2000, Administrator, Farm Service Agency. participate in the program; due to fire blight in the State of [FR Doc. 04–5494 Filed 3–10–04; 8:45 am] Michigan. Assistance will be subject to (4) The administration of the program; BILLING CODE 3410–05–P regulations and restrictions governing and the new TAP provided in the 2002 Act. (5) Other methods of creating new farming or ranching opportunities. Those regulations were published DEPARTMENT OF AGRICULTURE March 2, 2004 (69 FR 69 FR 9744) and The Committee meets at least once a year and all meetings are open to the are found at 7 CFR part 783. Also, the Farm Service Agency restrictions of the statute apply. Those public. The duration of the Committee include a requirement of replanting, a Public Meetings of Advisory is indefinite. Earlier meetings of the limitation on payments by ‘‘person’’, a Committee on Beginning Farmers and Committee, beginning in 1999, provided limitation on acres for which relief can Ranchers an opportunity for members to exchange be claimed, a requirement that the loss ideas on ways to increase opportunities AGENCY: Farm Service Agency, USDA. be tied to a natural disaster, and others. for beginning farmers and ranchers. If after the claims filed during the ACTION: Notice of public meetings. Members discussed various issues and drafted numerous recommendations, allowed period set out in this notice are SUMMARY: In accordance with the received, the available funds are less which were provided to the Secretary. Federal Advisory Committee Act, 5 Agenda items for the March, 2004 than the eligible claims a proration will U.S.C. App. II, the Farm Service Agency be made. Claims are limited to 75 per meetings include: (FSA) is issuing this notice to advise the (1) The Beginning Farmer and cent of the cost of replanting on eligible public that meetings of the Advisory Rancher Development Program, which acres and are subject to claims per Committee on Beginning Farmers and was authorized by the Farm Security person of $75,000 and a limit on a claim Ranchers (Committee) will be held to and Rural Investment Act of 2002 (Pub. to costs on no more than 500 acres. If discuss various beginning farmer issues. L. 107–171) (2002 Farm Bill), but has monies are, by contract, left over, DATES: The public meetings will be held not been funded, and the Extension Risk additional sign ups or claims may be March 24–25, 2004. The first meeting, Management Education Program (both entertained as announced by the Deputy on March 24, 2004, will start at 8:30 programs under the jurisdiction of Administrator for Farm Programs of the a.m., Eastern Standard Time (EST) and USDA’s Cooperative, State, Research, FSA on behalf of FSA and CCC. The end at 5:30 p.m. EST. The second Education and Extension Service); Deputy Administrator may waive or meeting, on March 25, 2004, will begin (2) Risk Management Education and amend deadlines to the extent not at 8 a.m. EST and end by 4 p.m. EST. Outreach Programs, along with crop prohibited by the statute. Statutory TAP ADDRESSES: All meetings will be held at insurance issues concerning provisions dealing with the availability participating insurance companies of seedlings do not apply here because the Grand Hyatt Hotel, 1000 H Street, Washington, DC, telephone (202) 582– (under the jurisdiction of USDA’s Risk no seedlings are available and the fire Management Agency); blight provisions specifically call for the 1234. Written requests to make oral presentations must be sent to: Mark (3) Various beginning farmer and use of CCC funds. All claims are subject rancher conservation issues authorized to the availability of funds. Falcone, Designated Federal Official for the Advisory Committee on Beginning by the 2002 Farm Bill (under the Applications Farmers and Ranchers, Farm Service jurisdiction of USDA’s Natural Agency, U.S. Department of Agriculture, Resources Conservation Service); Applications will be accepted until (4) FSA’s beginning farmer programs, March 25, 2004, or such other date as 1400 Independence Avenue, SW, STOP 0522, Washington, DC 20250–0522; borrower training program, and announced by the Deputy Administrator streamlining of forms and regulations; for Farm Programs of FSA. telephone (202) 720–1632; FAX (202) 690–1117; e-mail: and Application forms are available for [email protected]. (5) The Kellogg Foundation’s TAP at FSA county offices or on the involvement in providing assistance to Internet at http://www.fsa.usda.gov. A FOR FURTHER INFORMATION CONTACT: new immigrant and refugee farmers. complete application for TAP benefits Mark Falcone at (202) 720–1632. Attendance is open to all interested and related supporting documentation SUPPLEMENTARY INFORMATION: Section 5 persons but limited to space available. must be submitted to the county office of the Agricultural Credit Improvement Anyone wishing to make an oral before the deadline. Act of 1992 (Pub. L. 102–554) required statement should submit a request in
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writing (letter, fax, or e-mail) to Mark legal notices published on or after Blue Mountain District Ranger decisions Falcone at the above address. March 11, 2004. The list of newspapers Prairie City District Ranger decisions Statements should be received no later will remain in effect until another Blue Mountain Eagle, John Day, than March 19, 2004. Requests should notice is published in the Federal Oregon include the name and affiliation of the Register. Emigrant Creek District Ranger decisions individual who will make the FOR FURTHER INFORMATION CONTACT: Jill Burn Times Herald, Burns, Oregon presentation and an outline of the issues A. Dufour, Regional Environmental to be addressed. The floor will be open Coordinator, Pacific Northwest Region, Mt. Hood National Forest to oral presentations beginning at 1:15 333 SW. First Avenue, (P.O. Box 3623), p.m. EST on March 24, 2004. Comments Forest Supervisor decisions Portland, Oregon 97208, phone: 503– Clackamas River District Ranger will be limited to 5 minutes, and 808–2276. presenters will be approved on a first- decisions SUPPLEMENTARY INFORMATION: come, first-served basis. Zigzag District Ranger decisions Persons with disabilities who require Responsible Officials in the Pacific Hood River District Ranger decisions special accommodations to attend or Northwest Region will give legal notice Barlow District Ranger decisions The Oregonian, Portland, Oregon participate in the meetings should of the objection process for proposed contact Mark Falcone by March 19, authorized hazardous fuels reduction Ochoco National Forest 2004. projects in the following newspapers, which are listed by Forest Service Forest Supervisor decisions—The Signed in Washington, DC, on March 2, administrative units. Where more than Bulletin, Bend, Oregon 2004. one newspaper is listed for any unit, the Newspapers, which may provide James R. Little, first newspaper listed is the principle additional notice of Forest Administrator, Farm Service Agency. newspaper. The principle newspaper Supervisor decisions: [FR Doc. 04–5495 Filed 3–10–04; 8:45 am] shall be used to constitute legal Central Oregonian, Prineville, Oregon BILLING CODE 3410–05–P evidence that the agency has given Madras Pioneer, Madras, Oregon timely and constructive notice for the Blue Mountain Eagle, John Day, predecisional administrative review Oregon DEPARTMENT OF AGRICULTURE under 36 CFR 218. The timeframe for The Times-Journal, Condon, Oregon Crooked River National Grassland Area appeal shall be based on the date of Forest Service Manager decisions—The Bulletin, publication of a notice of decision in the Bend, Oregon principle newspaper. Newspapers Used for Publication of Newspaper, which may provide Legal Notice for Predecisional Pacific Northwest Regional Office additional notice of Area Manager Administrative Review Process for decisions: Hazardous Fuel Reduction Projects Regional Forester decisions on Oregon National Forests: The Oregonian, Madras Pioneer, Madras, Oregon Authorized by the Healthy Forest Lookout Mountain District Ranger Portland, Oregon. Restoration Act of 2003 in the Pacific decisions—The Bulletin, Bend, Northwest Region: Oregon and Regional Forester decisions on Washington National Forests: The Oregon Washington Newspaper, which may provide Seattle Post-Intelligencer, Seattle, additional notice of District Ranger AGENCY: Forest Service, USDA. Washington. decisions: ACTION: Columbia River Gorge National Scenic Notice. Central Oregonian, Prineville, Oregon Area Manager decisions: The Paulina District Ranger decisions—The SUMMARY: This notice lists the Oregonian, Portland, Oregon. newspapers that will be used by all Bulletin, Bend, Oregon Ranger Districts, Scenic Areas, Oregon National Forests Newspapers, which may provide additional notice of District Ranger Grasslands, Forests, and the Regional Deschutes National Forest Office of the Pacific Northwest Region decisions: for giving legal notice for the Forest Supervisor decisions Blue Mountain Eagle, John Day, opportunity to object to a proposed Bend/Fort Rock District Ranger Oregon authorized hazardous fuel reduction decisions The Times-Journal, Condon, Oregon Crescent District Ranger decisions project under 36 CFR 218. The intended Rogue River-Siskiyou National Forests effect of this action is to inform Redmond Air Center Manager decisions The Bulletin, Bend, Oregon Forest Supervisor (Rogue River) interested members of the public which Sisters District Ranger decisions— decisions—Mail Tribune, Medford, newspapers will be used to publish Sisters Nugget, Sisters, Oregon Oregon legal notices for proposed authorized Forest Supervisor (Siskiyou) decisions— hazardous fuel reduction projects; Fremont-Winema National Forests Grants Pass Courier, Grants Pass thereby notifying the public of objection Forest Supervisor decisions Applegate District Ranger decisions opportunities, providing clear evidence Bly District Ranger decisions Ashland District Ranger decisions of timely notice, and achieving Lakeview District Ranger decisions Butte Falls District Ranger decisions consistency in administering the Paisley District Ranger decisions J. Herbert Stone Nursery Managers predecisional objection process. Note: Silver Lake District Ranger decisions decisions The newspapers listed are the same Chemult District Ranger decisions Prospect District Ranger decisions newspapers used for publication of legal Chiloquin District Ranger decisions Mail Tribune, Medford, Oregon notice for public comment under the Klamath District Ranger decisions Chetco-Gold Beach District Ranger provision of 36 CFR 215, and appeal of Herald and News, Klamath Falls, decisions—Curry Coastal Pilot, decisions under 36 CFR 215 and 36 CFR Oregon Brookings, Oregon 217. Galice-Illinois Valley District Ranger DATES: Publication of legal notices in Malheur National Forest decisions—Grants Pass Courier, the listed newspapers will begin with Forest Supervisor decisions Grants Pass, Oregon
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Powers District Ranger decisions—The Washington National Forests decisions: World, Coos Bay, Oregon Colville National Forest The Yakima Herald-Republic, Newspaper, which may provide Yakima, Washington additional notice of District Ranger Forest Supervisor decisions Chelan District Ranger decisions Three Rivers District Ranger decisions decisions: Entiat District Ranger decisions Curry County Reporter, Gold Beach, Statesman-Examiner, Colville, Oregon Washington Lake Wenatchee and Leavenworth Republic District Ranger decisions— District Ranger decisions Siuslaw National Forest Republic News Miner, Republic, The Wenatchee World, Wenatchee, Forest Supervisor decisions—Corvallis Washington Washington Gazette-Times, Corvallis, Oregon Sullivan Lake District Ranger decisions Naches District Ranger decisions Hebo District Ranger decisions— Newport District Ranger decisions The Wenatchee World, Wenatchee, Headlight Herald, Tillamook, Newport Miner, Newport, Washington Washington Oregon Gifford Pinchot National Forest Newspaper, which may provide Mapleton District Ranger decisions additional notice of District Ranger Oregon Dunes National Recreation Area Forest Supervisor decisions decisions: Manager decisions Mount Adams District Ranger decisions Waldport District Ranger decisions Mount St. Helens National Volcanic The Yakima Herald-Republic, Register-Guard, Eugene, Oregon Monument Manager decisions Yakima, Washington Umatilla National Forest The Columbian, Vancouver, Olympic National Forest Washington Forest Supervisor decisions Cowlitz Valley District Ranger Forest Supervisor decisions: North Fork John Day District Ranger decisions—The Chronicle, The Olympian, Olympia, Washington decisions Chehalis, Washington Newspapers, which may provide Heppner District Ranger decisions additional notice of Forest Pomeroy District Ranger decisions Mt. Baker-Snoqualmie National Forest Supervisor decisions: Walla Walla District Ranger decisions Forest Supervisor decisions—Seattle East Oregonian, Pendleton, Oregon Mason County Journal, Shelton, Post Intelligencer, Seattle, Washington Umpqua National Forest Washington Peninsula Daily News, Port Angeles, Forest Supervisor decisions Mt. Baker District Ranger decisions— Washington Cottage Grove District Ranger decisions Skagit Valley Herald, Mt. Vernon, The Daily World, Aberdeen, Diamond Lake District Ranger decisions Washington Washington Snoqualmie District Ranger decisions North Umpqua District Ranger decisions The Forks Forum, Forks, Washington Tiller District Ranger decisions (north half of district)—Valley Dorena Tree Improvement Center Record, North Bend, Washington Hood Canal District Ranger decisions— Manager decisions Snoqualmie District Ranger decisions Peninsula Daily News, Port The News Review, Roseburg, Oregon (south half of district)—Enumclaw Angeles, Washington Courier Herald, Enumclaw, Newspaper, which may provide Wallowa-Whitman National Forest Washington additional notice of District Ranger Forest Supervisor decisions Darrington District Ranger decisions decisions: Baker Office-Whitman Unit decisions Skykomish District Ranger decisions Mason County Journal, Shelton, Pine Office-Whitman Unit decisions Everett Herald, Everett, Washington Washington Unity Office-Whitman Unit decisions Pacific District Ranger decisions (south Baker City Herald, Baker City, Oregon Okanogan and Wenatchee National portion of district): Hells Canyon National Recreation Area Forests Ranger decisions: The Daily World, Aberdeen, Forest Supervisor decisions—The Washington Occurring in Oregon— Wenatchee World, Wenatchee, Newspapers, which may provide Wallowa County Chieftain, Enterprise, Washington additional notice of District Ranger Oregon Newspaper, which may provide decisions: Occurring in Idaho— additional notice of Forest Lewiston Morning Tribune, Lewiston, Supervisor decisions: Peninsula Daily News, Port Angeles, Idaho The Yakima Herald-Republic, Washington La Grande District Ranger decisions— Yakima, Washington The Forks Forum, Forks, Washington The Observer, La Grande, Oregon Methow Valley District Ranger Pacific District Ranger decisions (north Eagle Cap District Ranger decisions portion of district)—Peninsula Wallowa Valley District Ranger decisions—Methow Valley News, Daily News, Port Angeles, decisions Twisp, Washington Washington Wallowa County Chieftain, Enterprise Tonasket District Ranger decisions— Oregon Wentachee World, Wenatchee, Newspapers, which may provide Washington additional notice of District Ranger Williamette National Forest Newspaper, which may provide decisions: Forest Supervisor decisions additional notice of District Ranger The Forks Forum, Forks, Washington Middle Fork District Ranger decisions decisions: The Daily World, Aberdeen, McKenzie River District Ranger Okanogan Valley Gazette-Tribune, Washington decisions Oroville, Washington Dated: February 3, 2004. Sweet Home District Ranger decisions Cle Elum District Ranger decisions— Register-Guard, Eugene, Oregon Ellensburg Daily Record, Jim Golden, Detroit District Ranger decisions— Ellensburg, Washington Deputy Regional Forester. Salem Statesman Journal, Salem, Newspaper, which may provide [FR Doc. 04–5453 Filed 3–10–04; 8:45 am] Oregon additional notice of District Ranger BILLING CODE 3410–11–M
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DEPARTMENT OF AGRICULTURE heading. Hard copy documents are Lead and Cooperating Agencies available at local forest offices. We are The USDA Forest Service. Forest Service coordinating efforts with Tribal governments, Bureau of Land Responsible Official Caribou-Targhee National Forest; Management, U.S. Fish and Wildlife Jerry B. Reese, Caribou-Targhee Forest Idaho; Caribou Travel Plan Revision— Service, Idaho Fish and Game, Idaho Supervisor, 1405 Hollipark Drive, Idaho (Located in Bonneville, Bannock, Department of Parks and Recreation and Falls, ID 83401. Beark Lake, Bingham, Bonneville, local County Commissioners. The Caribou, Franklin, Oneida, Power following public meetings have been Nature of Decision To Be Made Counties in Idaho and Box Elder, scheduled to aid people in Travel planning is an allocation Cache and Rich Counties in Utah and understanding the proposed action and process based on resource and social Lincoln County in Wyoming.) the analysis process, all meetings will concerns. The framework for the AGENCY: Forest Service, USDA. be held from 6 p.m. to 8 p.m.: decision is set by the programmatic direction outlined in the 2003 Caribou ACTION: March 18th in Madlad, ID at the Westside Notice of intent to prepare an Revised Forest Plan: Most cross-country environmental impact statement. Ranger District, 195 South, 300 East March 25th in Montpelier, ID at the Allred motorized travel is restricted to SUMMARY: The Forest Service will Building, Bear Lake County Fairgrounds, designated routes; snow-free designated prepare an Environmental Impact 21620 US Highway 30 motorized routes will adhere to the Statement (EIS) to document the March 31st in Preston, ID at the Robinson prescribed open motorized route analysis and disclose the environmental Building, Franklin County Fairgrounds, densities; critical winter range areas will impacts of the proposed action and 185 West, 2nd North have designated motorized routes alternatives to revise the Caribou Travel April 1st, in Pocatello ID at the Westside during the snow season and additional Plan for the Caribou portion of the Ranger District, 4350 Cliffs Drive non-motorized areas for the snow April 7th in Soda Springs, ID at the Tigert Caribou-Targhee National Forest. The season will be considered. Middle School, 250 East, 2nd South travel plan analysis will address both April 8th in Afton, WY at the City of Afton Scoping Process summer and winter travel; or snow-free Building, 416 South Washington Open houses will be held in area and snow seasons. The Travel Plan April 15th in Idaho Falls, ID at the Caribou- communities to discuss the proposed Revision will tier to the FEIS for the Targhee Forest Headquarters, 1405 action and possible alternatives for 2003 Caribou Revised Forest Plan. The Hollipark Drive revising the Caribou travel plan. Our Caribou portion of the Caribou-Targhee April 21st in Fort Hall, ID at the Tribal electronic website contains more Business Center, 306 Pima Drive National Forest is located in Southeast specific information, and public Idaho and portions of Western Wyoming Purpose and Need for Action comment can be received electronically. and Northern Utah. See e-mail addresses, website addresses DATES: To be most useful to the analysis, The Caribou Travel Plan does not and public meeting information listed comments concerning the proposed comply with programmatic direction set above. action should be received in writing 30 by the 2003 Caribou Revised Forest Comment Requested days from the publication of this notice. Plan. The travel does not comply with Comments will be accepted after that plan direction to manage most snow- This notice of intent initiates the date. The draft environmental impact free motorized travel on designated scoping process which guides the statement is expected in September of routes. The Revised Forest Plan also development of the environmental 2004 and the final environmental prescribes a limit on open motorized impact statement. Additional public impact statement is expected February route densities during the snow-free comments will be accepted after of 2005. If you would like to be season for many areas of the forest. The publication of the DEIS anticipated by included on our mailing list concerning current travel plan exceeds these limits September 2004. The Final EIS and this analysis, please contact Cynthia in some areas of the forest. Records of Decision for the Caribou Hobach at 208–524–7500 or Travel Plan Revision are expected in [email protected]. Proposed Action February of 2005. ADDRESSES: Please send written Early Notice of Importance of Public The proposed action will meet plan Participation in Subsequent comments to Caribou Travel Plan direction by designating motorized Revision Team, Caribou-Targhee Environmental Review: A draft routes in areas that were managed as environmental impact statement will be National Forest, 1405 Hollipark Drive, open to cross-country motorized travel Idaho Falls, Idaho 83401. Written prepared for comment. The comment during the snow-free season. The period on the draft environment impact comments may also be electronically proposed action will also address snow submitted to [email protected]. statement will be 45 days from the date season motorized access through winter the Environmental Protection Agency FOR FURTHER INFORMATION CONTACT: range prescriptions. publishes the notice of availability in Debrah Tiller, Interdisciplinary Team Possible Alternatives the Federal Register. Leader, Caribou-Targhee National The Forest Service believes, at this Forest, 1405 Hollipark Drive, Idaho Alternatives may include increasing early stage, it is important to give Falls, Idaho 83401 or visit our Web site or decreasing open motorized routes in reviewers notice of several court rulings at www.fs.fed.us/r4/caribou-targhee, various prescription areas. Alternatives related to public participation in the under the Travel Plan Revision that would not meet the prescribed open environmental review process. First, headline. motorized route densities would require reviewers of draft environmental impact SUPPLEMENTARY INFORMATION: The amending the Revised Forest Plan. statements must structure their proposed action, maps and other Alternatives to the proposed action may participation in the environmental supporting documents can be viewed at include additional areas managed for a review of the proposal so that it is http://www.fs.fed.us/r4/caribou-targhee non-motorized experience during the meaningful and alerts an agency to the under the Caribou travel plan revision snow season. reviewer’s position and contentions.
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Vermont Yankee Nuclear Power Corp. v. SUMMARY: The USDA Forest Service will Allotments include water bodies that NRDC, 435 U.S. 5129,553 (1978). Also prepare an environmental impact are impaired or are tributary to streams environmental objections that could be statement (EIS) to disclose the that are impaired, but they do not raised at the draft environmental impact environmental effects of reissuing 10- exceed the State standard for total statement stage but that are not raised year term grazing permits to continue maximum daily load (TMDL) of until after completion of the final authorizing cattle grazing on eight pollutants, so the streams and lakes on environmental impact statement may be grazing allotments (North-Indian Creek, these allotments are not included on the waived or dismissed by the courts. City Circleville, South Beaver, Marysvale, State’s 303(d) list of waters not meeting of Angoon v. Hodel, 803 F.2d 1016, Pine Creek/Sulphurdale, Cottonwood, water quality standards. The Circleville 1022 (9th Cir. 1986) and Wisconsin Ten Mile, Junction) within the Beaver Allotment includes streams that flow to Heritages, Inc. v. Harris, 490 F.Supp. Ranger District and located on the a segment of the Sevier River that is 1334, 1338 (E.D. Wis. 1980). because of Tushar Mountain Range near the city of water quality limited, but no 303(d) these court rulings, it is very important Beaver in Beaver and Piute Counties, streams are located in the Circleville that those interested in this proposed Utah. The permit reissuance would Allotment. action participate by the close of the 45 authorize the continued use of current Proposed Action: Reissuing 10-year day comment period so that substantive grazing systems with presently term grazing permits to continue comments and objections are made permitted cattle numbers and seasons of authorizing cattle grazing, on eight available to the Forest Service at a time use. allotments on the Tushar Mountain when it can meaningfully consider them DATES: Comments in response to this Range within the Beaver Ranger District, and respond to them in the final Notice of Intent concerning the scope of is proposed. Implementation of existing environmental impact statement. the analysis should be received in Allotment Management Plans (AMPs) To assist the Forest Service in writing on or before April 5, 2004. would prescribe the manner and extent identifying and considering issues and ADDRESSES: Send written comments to: to which livestock operations would be concerns on the proposed action, Tushar Mountain Range EIS, Attn: Dave conducted and would: (1) Develop comments on the draft environmental Grider, Dixie National Forest, 1785 allotment specific objectives which impact statement should be as specific North Wedgewood Lane, Cedar City, UT would direct livestock management to as possible. It is also helpful if 84720. Additional information can be either maintain desired conditions or comments refer to specific pages or obtained from Dave Grider, improve rangelands to desired chapters of the draft statement. Interdisciplinary Team Leader, by conditions, (2) authorize management of Comments may also address the phone: 435–865–3731 or by e-mail: livestock and construction or adequacy of the draft environmental [email protected]. maintenance of improvements which impact statement or the merits of the RESPONSIBLE OFFICIAL: Dayle Flanigan, would result in meeting objectives, (3) alternatives formulated and discussed in develop action plans to meet resource the statement. Reviewers may wish to District Ranger, is the responsible official for this environmental impact goals, objectives, and management refer to the Council on Environmental requirements for a wide array of Quality Regulations for implementing statement. His address is: U.S. Forest Service, Beaver Ranger District, 575 rangeland resources and uses the procedural provisions of the concurrent with livestock grazing, (4) National Environmental Policy Act at 40 South Main, P.O. Box E, Beaver, UT, 84713. incorporate Land and Resource CFR 1503.3 in addressing these points. Management Plan (Forest Plan) Comments received, including the FOR FURTHER INFORMATION CONTACT: standards and guidelines (as amended) names and addresses of those who Dave Grider, Interdisciplinary Team for forage utilization and riparian area comment, will be considered part of the Leader, Dixie National Forest, 1789 N. management, and (5) develop a public record on this proposal and will Wedgewood Lane, Cedar City, UT monitoring plan that describes a be available to public inspection. 84720, (435) 865–3731. A Scoping measurable means of determining (Authority: 40 CFR 1501.7 1508.22; Forest Document has been prepared to provide whether goals and objectives are being Service Handbook 1909.15, Section 21) project information and request public met. This proposed action does not Dated: March 4, 2004. review and comment. This Scoping intend to address livestock capacity and Jerry B. Reese, Document can be accessed stocking rates. The number and class of electronically at http://www.fs.fed.us/ Forest Supervisor, Caribou-Targhee National livestock, season of use, and grazing Forest. r4/fishlake/projects/index.shtml. system required to meet desired [FR Doc. 04–5469 Filed 3–10–04; 8:45 am] SUPPLEMENTARY INFORMATION: These conditions is a permit administration BILLING CODE 3410–11–M eight allotments comprise 173,000 acres decision, not a NEPA decision. Changes (two-thirds) of the 260,000-acre District in numbers and seasons would not be on the eastern edge of the Basin and adressed by the proposed action or DEPARTMENT OF AGRICULTURE Range province. Elevations range from alternative(s). The proposal does not 5,200′ in Sevier Valley to over 12,000′ intend to change the grazing systems Forest Service on Mount Belknap in the Tushar Range. currently in use. None of the project Vegetation types range from sagebrush- allotments require new structural range Reissuance of 10-Year Term Grazing grass and pinion-juniper in the valley improvements (fences or water Permits and Authorization To Graze floors to mountain brush, aspen, mixed developments) for cattle management. Cattle in the Tushar Mountain Range, conifer, and alpine-forb communities. The proposed action does include Beaver Ranger District, Fishlake Riparian ecosystems occur within many provision for maintenance of existing National Forest in Iron and Piute of these communities. Alpine riparian structural and non-structural range Counties, UT areas occur on Lake Peak and in the improvements. Vegetation type- AGENCY: Forest Service, USDA. heads of North Creek. The major river conversions (sagebrush and pinion- drainage is Beaver River, which flows juniper to grass/forb types) would be ACTION: Notice of intent to prepare an into the closed Great Basin. The South subject to periodic maintenance on the Environmental Impact Statement. Beaver and North-Indian Creek North-Indian Creek, Marysvale,
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Circleville, Ten Mile, Cottonwood, considered. The EIS will disclose the individuals or organizations that may be South Beaver, and Pine Creek/ analysis of site-specific mitigation interested in or affected by the proposed Sulphurdale Allotments. Maintenance measures and their effectiveness. action. No public meetings are of existing structural range Scoping Process: Public participation scheduled at this time. Comments will improvements would include 113 miles is an important part of the analysis, be used to identify any additional issues of fences, 27 cattle guards, 48 developed commencing with the initial scoping that should be addressed in the springs, 48 stock ponds, 29 miles of process (40 CFR 1501.7), which began in environmental impact statement. The pipeline, and 60 watering troughs. February 1998. At that time, an analysis is being conducted in Noxious weed infestations would Interdisciplinary Team of Forest Service compliance with the National require treatment on all of the resource specialists conducted an in- Environmental Policy Act (NEPA) and is allotments except Ten Mile, Junction, depth analysis of 36 cattle allotments designed to inform the Responsible and Cottonwood. (including the 8 allotments in this Official of the potential environmental Purpose and Need for Action: The proposed action) and 6 sheep allotments consequences of continued livestock purpose of the proposed action is to in a Forest-wide multi-allotment level grazing on these eight allotments and to authorize and conduct cattle grazing, on environmental assessment. A final identify any changes in grazing allotments included in this analysis, decision was made, which was practices that should be considered. The according to direction and objectives of subsequently appealed, pursuant to 36 Draft EIS is expected to be filed with the the Forest Plan and in compliance with CFR 215.17, and Fishlake National Environmental Protection Agency (EPA) applicable laws, regulations, and Forest Supervisor Rob Mwroka and available for public review by or policies. Term grazing permits and withdrew the decision in June 2000. prior to June of 2004. At that time, the associated AMPs currently authorize Based on the complexities of the EPA will publish a Notice of cattle grazing on the Beaver Ranger original EA, the Forest Supervisor Availability of the Draft EIS in the District. The proposed action is needed decided to complete an environmental Federal Register. The comment period to address significant grazing issues, analysis that only addressed forage on the Draft EIS will be 45 days from the relate existing conditions to desired utilization criteria, and to incorporate date the EPA’s notice of availability conditions, and to conduct analysis in new use criteria through an amendment appears in the Federal Register. It is accordance with Section 504 of Pub. L. to the Forest Plan. This EA was very important that those interested in 104–19 (Rescission Bill, Signed 7/27/95) completed during 2001 and the Decision management of the eight project which directed the Forest Service to Notice was signed in February 2002 allotments on the Beaver Ranger District complete NEPA analysis on all grazing directing incorporation of the revised participate at that time. To be most allotments. The Forest Plan provides the criteria into Part 3 of the Term Grazing helpful, comments on the Draft EIS overall guidance for management Permits. Concurrently, and upon review should be as site-specific as possible. activities in the potentially affected area of the environmental analysis process The Final EIS is scheduled to be through its goals, objectives, standards and varying public interests, the Forest completed by September 2004. and guidelines, and management area Supervisor decided that separate direction. Environmental Impact Statements Early Notice of Importance of Public Nature of Decision To Be Made: The (EISs), for each group of allotments on Participation in Subsequent decision to be made is ‘‘should 10-year each of the Forest’s four mountain Environmental Review: A draft term grazing permits be reissued to ranges and respective ranger districts, environmental impact statement (DEIS) authorize continued cattle grazing on would be prepared to assess the effects will be prepared for comment. The the eight allotments within the Tushar of authorizing and permitting livestock comment period on the DEIS will be 45 Mountain Range on the Beaver Ranger grazing. Public comments received days from the date the Environmental District.’’ If the decision is to reissue during the completion of the original Protection Agency publishes the notice term grazing permits to continue cattle multi-allotment Forest-wide EA of availability in the Federal Register. grazing, then management prescriptions, referenced above will be incorporated The Forest Service believes, at this early detailed in AMPs, will be implemented into this EIS analysis process. A stage, it is important to give reviewers to outline how livestock will be grazed disclosure of the effects of livestock notice of several court rulings related to and to ensure compliance with Forest grazing on the following resources and public participation in the Plan direction. activities will be provided: riparian environmental review process. First, Possible Alternatives: The Forest areas, endangered and sensitive plant reviewers of draft environmental impact Service will consider a range of and wildlife species habitats, soil and statements must structure their alternatives. One of these will be the water quality within the allotments, participation in the environmental ‘‘no grazing’’ alternative, in which no forage competition between elk and review of the proposal so that it is grazing by domestic livestock would be livestock, conflicts with recreational meaningful and alerts an agency to the allowed and all structural range activities, potential spread of noxious reviewer’s position and contentions. improvements currently in place for weeds, effect of livestock and their Vermont Yankee Nuclear Power Corp v. control or management of livestock management on cultural resources, and NRDC, 435 U.S. 519, 553 (1978). Also, would be removed. New term grazing economic stability of the local and environmental objections that could be permits would not be issued as current regional agricultural communities. This raised at the draft environmental impact permits expire. In ten years, this area list will be verified, expanded, refined, statement stage but that are not raised would not provide any grazing for or modified based on public scoping for until after completion of the final domestic livestock. Additional grazing this proposal. environmental impact statement may be alternatives will be considered in Comments Requested: In addition to waived or dismissed by the courts. City response to issues and other resource this scoping, the public may visit Forest of Angoon v. Hodel, 803 F.2d 1016, values. The EIS will analyze the direct, Service officials at any time during the 1022 (9th Cir. 1986) and Wisconsin indirect, and cumulative environmental analysis and prior to the decision. The Heritages, Inc. v. Harris, 490 F. Supp. effects of the alternatives. Past, present, Forest Service is seeking information, 1334, 1338 (E.D. Wis. 1980). Because of and projected activities on both private comments, and assistance from Federal, these court rulings, it is very important and National Forest lands will be State, and local agencies and other that those interested in this proposed
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action participate by the close of the 30- the meeting. Board members will review provided and individuals will have the day scoping comment period (April 1, written comments received, and at their opportunity to address the Committee at 2004) so that substantive comments and request, oral clarification may be that time. objections are made available to the requested at a future meeting. Dated: March 4, 2004. Forest Service at a time when it can DATES: The meeting will be held on Blaine P. Baker, meaningfully consider them and Friday, April 2, 2004, 8:30 a.m. to 12:15 Designated Federal Officer. respond to them in the Final p.m., c.s.t. [FR Doc. 04–5468 Filed 3–10–04; 8:45 am] Environmental Impact Statement. To ADDRESSES : The meeting will be held at BILLING CODE 3410–11–M assist the Forest Service in identifying Brandon Spring Group Camp, Land and considering issues on the proposed Between the Lakes, and will be open to action, comments should be as specific the public. DEPARTMENT OF AGRICULTURE as possible. It is also helpful if FOR FURTHER INFORMATION CONTACT: comments refer to specific pages or Sharon Byers, Advisory Board Liaison, Forest Service chapters of the draft statement. Land Between the Lakes, 100 Van Comments may also address the Morgan Drive, Golden Pond, Kentucky Revisions of the Land and Resource adequacy of the Draft Environmental 42211, 270–924–2002. Management Plan for the Malheur, Impact Statement or the merits of the Umatilla, and Wallowa-Whitman alternatives formulated and discussed in SUPPLEMENTARY INFORMATION: None. National Forests, Land and Resource the statement. Reviewers may wish to Dated: March 5, 2004. Management Plans, Pacific Northwest refer to the Council on Environmental William P. Lisowsky, Region, OR, WA, and ID Quality Regulations for implementing Area Supervisor, Land Between the Lakes. AGENCY: Forest Service, USDA. the procedural provisions of the [FR Doc. 04–5442 Filed 3–10–04; 8:45 am] ACTION: Notice of intent to revise the National Environmental Policy Act at 40 BILLING CODE 3410–11–P CFR 1503.3 in addressing these points. Land and Resource Management Plans Dated: March 1, 2004. (Forest Plans) for the Malheur, Umatilla, and Wallowa-Whitman National Mary Erickson, DEPARTMENT OF AGRICULTURE Forests. Forest Supervisor, Fishlake National Forest. Forest Service [FR Doc. 04–5463 Filed 3–10–04; 8:45 am] SUMMARY: This notice announces the BILLING CODE 3410–11–P Lake County Resource Advisory intent of the Malheur, Umatilla, and Committee Wallowa-Whitman National Forests to revise their respective Land and DEPARTMENT OF AGRICULTURE AGENCY: Forest Service, USDA. Resource Management Plans (Forest ACTION: Notice of meeting. Plans) under the 1982 planning Forest Service regulations (36 CFR part 219). Initial SUMMARY: The Lake County Resource steps of the revision process will focus Meeting of the Land Between the Advisory Committee (RAC) will hold a on information needs, resource Lakes Advisory Board meeting. inventory reviews, establishing a public AGENCY: Forest Service, USDA. DATES: The meeting will be held on collaboration process, and identifying ACTION: Notice of meeting. April 29, 2004, from 3 p.m. to 6 p.m. needed changes. ADDRESSES: The meeting will be held at ADDRESSES: Send written comments SUMMARY: The Land Between the Lakes the Lake County Board of Supervisor’s concerning this notice to Dave Schmitt, Advisory Board will hold a meeting on Chambers at 255 North Forbes Street, Blue Mountains Forest Plan Revision Friday, April 2, 2004. Notice of this Lakeport. Team Leader, 1550 Dewey Avenue, P.O. meeting is given under the Federal FOR FURTHER INFORMATION CONTACT: Box 907, Baker City, OR 97814. Send Advisory Committee Act, 5 U.S.C. App. Debbie McIntosh, Committee electronic correspondence on the forest 2. Coordinator, USDA, Mendocino plan revision to [email protected]. The meeting agenda includes the National Forest, Upper Lake Ranger FOR FURTHER INFORMATION CONTACT: following: (1) Welcome/introductions/agenda; District, 10025 Elk Mountain Road, Tami Paulsen, Public Affairs Specialist, (2) LBL Land and Resource Upper Lake, CA 95485. (707) 275–2361; Blue Mountains Forest Plan Revision Management Plan (LRMP) process E-mail [email protected]. Team (541) 523–1332. update; SUPPLEMENTARY INFORMATION: Agenda SUPPLEMENTARY INFORMATION: The Forest (3) Information session presentation & items to be covered include: (1) Roll Plans for the Malheur, Umatilla, and critique for the LRMP; Call/Establish Quorum; (2) Review and Wallowa-Whitman National Forests (4) Summary of changes, preferences, Approval of the Minutes of the January were completed in May, June, and April and discussion; 15, 2004 Meeting; (3) Finalize business of 1990 (respectively) and will remain (5) Planning schedule; for 2003; (4) Reevaluate Previously in effect and continue to be (6) Board discussion of comments Submitted Projects Not Approved; (5) implemented until the Plans are revised. received. Discuss and Set Field Trip Dates; (6) This notice addresses initiation of The meeting is open to the public. RAC New Letter; (7) Discuss revision. Once the scope of the revision Written comments are invited and may Appointments to RAC for Second is better understood the Forests will be mailed to: William P. Lisowsky, Area Terms; (8) Review New Project for 2004; issue a Notice of Intent to prepare an Supervisor, Land Between the Lakes, (9) Recommend Projects for 2004; (10) Environmental Impact Statement, which 100 Van Morgan Drive, Golden Pond, Discuss Project Cost Accounting USFS/ will initiate the Analysis process Kentucky 42211. Written comments County of Lake; (11) Set next Meeting outlined in the National Environmental must be received at Land Between the Date and; (12) Public Comment Period. Policy Act. Lakes by March 25, 2004, in order for The meeting is open to the public. The Forest Service is preparing new copies to be provided to the members at Public input opportunity will be planning regulations, which may be
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issued while the Malheur, Umatilla, and (202) 690–0639; e-mail: SUPPLEMENTARY INFORMATION: GVEA Wallowa-Whitman National Forests [email protected]. proposes to construct the North Pole to Plans are still in the revision process. Carney Substation 138kV Transmission SUPPLEMENTARY INFORMATION: Notice of These new regulations will reflect the this conference is given under the Line Project, which is approximately 22 latest national direction on land Federal Grant and Cooperative miles in length. The primary purpose of the facility is to meet the projected management planning and the Forests Agreement Act of 1977, 31 U.S.C. 6301– future increases in regional power may consider completing the Plan 6308. The conference is designed for requirements and to improve the quality Revision under the new planning leaders, administrators, partners, non- of service to existing customers. To regulations when they are finalized. It is government officials, program managers, accommodate the new transmission anticipated the new planning specialists, management analysts, and line, a new substation would be built regulations will allow such a change. others involved with operations, next to the existing North Pole Power An additional Notice will be issued if agreements/grants, evaluations, Plant which is located near the Williams the Forests decide to switch to the new, administration, decision process, Alaska Petroleum Refinery. In addition, final planning regulations. auditing, program management, GVEA would modify the existing Dated: March 4, 2004. budgeting, contracting, and program Carney Substation to provide an Linda Goodman, delivery. Participants will learn: additional breaker to allow for Regional Forester. Competing Grants and Agreements, termination of the transmission line. [FR Doc. 04–5454 Filed 3–10–04; 8:45 am] Contribution Agreements, Authorities, The modification of the Carney BILLING CODE 3410–11–M Policies, and Earmarks, Roles and Substation work would take place Responsibilities, and Cost Analysis and within the existing substation footprint. Evaluation of Proposals. The proposed transmission line would DEPARTMENT OF AGRICULTURE Dated: March 8, 2004. be single circuit, with three-phase, Helen V. Huntington, constructed to operate at a voltage of Natural Resources Conservation 138 kV and supported by wood-pole, H- Service Federal Register Liaison, Natural Resources Conservation Service. frame structures that would be Federal Grants and Cooperative [FR Doc. 04–5555 Filed 3–10–04; 8:45 am] approximately 75 ft. in height. The line Agreements BILLING CODE 3410–16–P would be constructed within a right-of- way that would be approximately 100 ft. AGENCY: Natural Resources in width. Conservation Service, USDA. DEPARTMENT OF AGRICULTURE Alternatives to the proposed project ACTION: Notice of training conference. are discussed in detail in the Rural Utilities Service environmental assessment (EA). They SUMMARY: The Natural Resources include no action, load management, Conservation Service (NRCS) is Golden Valley Electric Association, purchase of power, upgrading of the announcing a forthcoming training Inc.; Notice of Finding of No existing line, construction of a new conference for Federal Grants and Significant Impact transmission line, substation locations, Cooperative and Contribution etc. Based on the analysis, the AGENCY: Rural Utilities Service, USDA. Agreements. Special emphasis will be construction of a new transmission line, placed on clarifying the grants and ACTION: Notice of finding of no a new substation at the North Pole agreements process with emphasis on significant impact. Power Plant, and modifications to the Carney Substation were found to meet the competitive process. SUMMARY: Notice is hereby given that the purpose and need for the project. DATES: The training conference date is: the Rural Utilities Service (RUS) has April 26–30, 2004, 8 a.m. to 5 p.m. A GVEA submitted an environmental made a finding of no significant impact report (ER) to RUS, which addresses the block of rooms has been reserved under (FONSI) for a project proposed by USDA/NRCS at the Sheraton New potential environmental impacts of the Golden Valley Electric Association, Inc., project. The ER includes input from Orleans Hotel, 500 Canal Street, New (GVEA) of Fairbanks, Alaska. The Orleans, Louisiana, telephone: 1–888– federal, state, and local agencies. RUS project consists of constructing a 138kV has reviewed and accepted the ER as 627–7033, on a first come first serve transmission line between the GVEA basis. The Marriott New Orleans Hotel RUS’ EA for the project in accordance North Pole Power Plant, North Pole, with RUS’ Environmental Policies and (directly across the street), 550 Canal Alaska, and the Carney Substation, Procedures, 7 CFR 1794.41. The EA was Street, New Orleans, Louisiana, which is approximately 22 miles made available to Federal, State, and telephone 1–888–364–1200 will become southeast of North Pole. local government agencies for their the overflow hotel site. A room rate has FOR FURTHER INFORMATION CONTACT: review and comments. GVEA published been set at $146.00 and all reservations Nurul Islam, Environmental Protection notices of the availability of the EA for must be guaranteed by April 2, 2004. Specialist, U.S. Department of public review in the Fairbanks Daily ADDRESSES: The training conference will Agriculture, RUS, Engineering and News Miner on January 17 and 18, 2004. take place at the Sheraton New Orleans Environmental Staff, 1400 The EA was also made available for Hotel, 500 Canal Street, New Orleans, Independence Avenue, SW., public review at the Noel Wien Public Louisiana, telephone: 1–888–627–7033. Washington, DC 20250–1571, telephone Library, North Pole City Library, and FOR FURTHER INFORMATION CONTACT: (202) 720–1414, Fax: (202) 720–0820, e- RUS office in Washington, DC. The 30- Questions or comments should be mail: [email protected]. day comment period on the EA for the directed to Edward Biggers, Jr., Director, Information is also available from Mr. project ended on February 20, 2004. The Management Services Division, Greg Wyman, Manager of Construction Department of Natural Resources, Office telephone: (202) 720–4102; fax: (202) Services, GVEA, PO Box 71249, of the Habitat Management and 720–7149; e-mail: Fairbanks, Alaska 99707–1249, Permitting (OHMP); Office of the [email protected] or Rosann telephone (907) 451–5629. His e-mail History and Archaeology; Bureau of Durrah, telephone: (202) 720–4072; fax: address is: [email protected]. Land Management (BLM); and the
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Alyeska Pipeline Service Company rural populations to continue serving reviewed the applications for applicant (APSC) have commented on the project. their coverage areas. and project eligibility and scored the No public comments were received on DATES: Successful grant applicants will applications according to the rurality of the EA. be notified no later than March 31, the applicant’s digital television A Habitat Permit from the OHMP will 2004. coverage area, the average per capita income of the applicant’s digital be required for equipment crossings and FOR FURTHER INFORMATION CONTACT: television cover area, and critical need. snow ramp/ice road construction over Roberta D. Purcell, Assistant On February 20, 2004, Secretary of the anadromous streams. GVEA will Administrator, Telecommunications Agriculture, Ann Veneman, announced obtain all necessary permits including Program, Rural Utilities Service, U.S. the 16 highest scoring grants totaling the Habitat Permit from OHMP. The Department of Agriculture, 1400 $15,000,000. This announcement fully BLM would be responsible for issuing Independence Avenue, SW., STOP utilized RUS’ 2003 appropriation. an authorization for third party use of 1590, Room 5151, Washington, DC On January 23, 2004, the Consolidated military reservation lands that would be 20250–1590. Telephone number (202) Appropriations Act of 2004 was enacted withdrawn for use other than military 720–9554, Facsimile (202) 720–0810. purposes under Pub. L. 105–65. The which provided $39 million for grants SUPPLEMENTARY INFORMATION: On July for telemedicine and distance learning State Historic Preservation Officer 18, 2003, RUS published a Notice of (SHPO) of Alaska recommended an services in rural areas provided that $14 Funds Availability (NOFA) in the million is made available to convert archaeological survey of the final route Federal Register at 68 FR 42680 for the transmission line. GVEA will analog to digital operation those announcing its ‘‘public television noncommercial educational television conduct an archaeological survey and station digital transition’’ grant program the survey report will be made available broadcast stations that serve rural areas to finance the conversion of television and are qualified for Community to SHPO for review and comment. No services from analog to digital construction related activities will be Service Grants by the Corporation for broadcasting for public television Public Broadcasting under section undertaken prior to final approval from stations serving rural areas. Fifteen SHPO and RUS. GVEA has agreed to 396(k) of the Communications Act of million dollars in grant authority was 1934, including associated translators, consult with APSC on final routing of made available to finance digital the transmission line when it would be repeaters, and studio-to-transmitter conversions. links. Due to the overwhelming necessary either to cross or be near the As part of the nation’s evolution to pipeline. response to the July 18, 2003, NOFA, digital television, the Federal RUS has eligible applications on hand Any final action by RUS related to the Communications Commission (FCC) has proposed project will be subject to, and totaling more than the $14 million ordered all television broadcasters to appropriation received for Fiscal Year contingent upon, compliance with all initiate the broadcast of a digital relevant Federal environmental laws 2004. To eliminate the need for fully television signal by May 1, 2003, and to eligible applicants to resubmit and regulations and completion of cease analog television broadcasts on environmental review procedures as applications for Fiscal Year 2004, RUS December 31, 2006. About half of the will utilize its 2004 appropriation by prescribed by the 7 CFR part 1794, RUS nation’s 357 public television stations Environmental Policies and Procedures. funding eligible projects submitted in did not meet the deadline to initiate accordance with the July 18, 2003, Dated: March 4, 2004. digital broadcasting, and have received NOFA. Announcement of the 2004 Blaine D. Stockton, extensions to as late as May 1, 2004, to appropriation grant awards will be Assistant Administrator, Electric Program, do so. made no later than March 31, 2004. Rural Utilities Service. The Agriculture, Rural Development, Dated: March 8, 2004. [FR Doc. 04–5426 Filed 3–10–04; 8:45 am] Food and Drug Administration, and Related Agencies Appropriations Bill, Hilda Gay Legg, BILLING CODE 3410–15–P 2003, authorized $51,941,000 for the Administrator, Rural Utilities Service. Distance Learning and Telemedicine [FR Doc. 04–5496 Filed 3–10–04; 8:45 am] DEPARTMENT OF AGRICULTURE program. The Committee BILLING CODE 3410–15–P Recommendations specify that of the Rural Utilities Service funds provided for Distance Learning and Telemedicine, $15,000,000 should DEPARTMENT OF COMMERCE Public Television Station Digital be made available in grants for public Transition Grant Program broadcasting systems to meet the FCC’s International Trade Administration mandate. [A–485–803] AGENCY: Rural Utilities Service, USDA. Public television stations rely largely ACTION: Notice. on community financial support to Notice of Extension of Time Limit for operate. In many rural areas the cost of the Preliminary Results of the SUMMARY: The Rural Utilities Service the transition to digital broadcasting Antidumping Duty Administrative (RUS) is announcing the process by may exceed community resources. Since Review: Cut-to-Length Carbon Steel which Fiscal Year 2004 funding of its rural communities depend on public Plate From Romania pilot grant program to finance the television stations for services ranging conversion of television services from from educational course content in their AGENCY: Import Administration, analog to digital broadcasting for public schools to local news, weather, and International Trade Administration, television stations serving rural areas agricultural reports, any disruption of Department of Commerce. will be made available. For Fiscal Year public television broadcasting would be SUMMARY: The Department of Commerce 2004, $14 million in grants will be made detrimental. (the Department) is extending the time available for the continued funding of In response to its NOFA, RUS limits for the preliminary results of the the national competition announced on received 46 applications totaling more 2002–2003 administrative review of the July 18, 2003, to enable public than $45 million in funding requests. As antidumping duty order on cut-to-length television stations that serve substantial part of a national competition, RUS carbon steel plate from Romania. This
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review covers one manufacturer/ different parts of the twelve-month from their duties effective March 4, exporter of the subject merchandise to review period, and complex cost data. 2004. the United States and the period August Therefore, the Department is extending Dated: March 5, 2004. 1, 2002 through July 31, 2003. the time limits for completion of the Caratina L. Alston, EFFECTIVE DATE: March 11, 2004. preliminary results by 120 days, until United States Secretary, NAFTA Secretariat. FOR FURTHER INFORMATION CONTACT: August 30, 2004, in accordance with [FR Doc. 04–5491 Filed 3–10–04; 8:45 am] Thomas Killiam at (202) 482–5222, section 751(a)(3)(A) of the Tariff Act. Michael Heaney at (202) 482–4475, or The deadline for the final results of this BILLING CODE 3510–GT–P Robert James at (202) 482–0649, review will continue to be 120 days after publication of the preliminary Antidumping and Countervailing Duty DEPARTMENT OF COMMERCE Enforcement Group III, Office Eight, results. This extension is in accordance with Import Administration, International International Trade Administration Trade Administration, U.S. Department section 751(a)(3)(A) of the Tariff Act. of Commerce, 14th Street and Dated: March 3, 2004. [A–201–802] Constitution Avenue NW., Washington, Joseph A. Spetrini, DC 20230. Deputy Assistant Secretary for Import Gray Portland Cement and Clinker Statutory Time Limits: Section Administration, Group III. From Mexico; Notice of NAFTA 751(a)(3)(A) of the Tariff Act of 1930, as [FR Doc. 04–5543 Filed 3–10–04; 8:45 am] Binational Panel’s Final Decision and amended (the Act), requires the BILLING CODE 3510–DS–P Amended Final Results of Department of Commerce (the Antidumping Duty Administrative Department) to complete the Review preliminary results of an administrative DEPARTMENT OF COMMERCE review within 245 days after the last day AGENCY: Import Administration, of the anniversary month of an order/ International Trade Administration International Trade Administration, finding for which a review is requested Department of Commerce. and the final results within 120 days North American Free-Trade after the date on which the preliminary Agreement, Article 1904; NAFTA Panel ACTION: Notice of NAFTA Binational results are published. However, if it is Reviews; Completion of Panel Review Panel’s final decision and amended not practicable to complete the review final results of antidumping duty AGENCY: NAFTA Secretariat, United administrative review. within these time periods, section States Section, International Trade 751(a)(3)(A) of the Act allows the Administration, Department of SUMMARY: On January 22, 2004, the Department to extend the time limit for Commerce. the preliminary results to a maximum of Binational Panel issued its final 365 days after the last day of the ACTION: Notice of completion of panel decision with respect to the final results anniversary month of an order/finding review of the final remand of administrative review of the for which a review is requested, and for determination made by the U.S. antidumping duty order on gray the final results to 180 days (or 300 days International Trade Administration, in portland cement and clinker from if the Department does not extend the the matter of Gray Portland Cement and Mexico covering the period August 1, time limit for the preliminary results) Clinker from Mexico, Secretariat File 1996, through July 31, 1997. As there is from the date of publication of the No. USA–MEX–99–1904–03. now a final and conclusive decision in preliminary results. this case, we are amending the final SUMMARY: Pursuant to the Order of the Background: On September 30, 2003, results of review and we will instruct Binational Panel dated January 22, 2004, in response to a request from the U.S. Customs and Border Protection to affirming the final remand petitioners, International Steel Group, liquidate entries subject to this review. determination described above was we published a notice of initiation of completed on March 4, 2004. EFFECTIVE DATE: March 11, 2004. this administrative review in the Federal Register. See Initiation of FOR FURTHER INFORMATION CONTACT: FOR FURTHER INFORMATION CONTACT: Antidumping and Countervailing Duty Caratina L. Alston, United States Brian Ellman or Mark Ross, Office of Administrative Reviews and Requests Secretary, NAFTA Secretariat, Suite AD/CVD Enforcement 3, Import for Revocation in Part and Deferral of 2061, 14th and Constitution Avenue, Administration, International Trade Administrative Review, 68 FR 56262 Washington, DC 20230, (202) 482–5438. Administration, U.S. Department of (September 30, 2003). Pursuant to the SUPPLEMENTARY INFORMATION: On Commerce, 14th Street and Constitution time limits for administrative reviews January 22, 2004, the Binational Panel Avenue, NW., Washington, DC 20230; set forth in section 751(a)(3)(A) of the issued an order which affirmed the final telephone: (202) 482–4852 or (202) 482– Tariff Act of 1930, as amended (the remand determination of the United 4794, respectively. Tariff Act), the current deadlines are States International Trade SUPPLEMENTARY INFORMATION: May 2, 2004 for the preliminary results Administration (ITA) concerning Gray and August 30, 2004, for the final Portland Cement and Clinker from Background results. Mexico. The Secretariat was instructed Extension of Time Limit for to issue a notice of completion of panel On March 17, 1999, the Department of Preliminary Results of Review: It is not review on the 31st day following the Commerce (the Department) published practicable to complete this review issuance of the notice of final panel in the Federal Register the final results within the normal statutory time limit action, if no request for an extraordinary of the administrative review of the due to a number of significant case challenge was filed. No such request antidumping duty order on gray issues, such as, the collection of was filed. Therefore, on the basis of the portland cement and clinker from surrogate market values, the reporting panel order and rule 80 of the Article Mexico (64 FR 13148) (Seventh Review and analysis of both non-market 1904 Panel Rules, the panel review was Final Results). The Department economy and market economy data for completed and the panelists discharged collapsed CEMEX, S.A. de C.V.
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(CEMEX), and GCC Cemento, S.A. de Panel, September 27, 2002 (First Secretariat File No. USA–MEX–99– C.V. (GCCC),1 in the determination. Remand). 1904–03 (December 16, 2003) (Fourth CEMEX, GCCC, and the Southern Tier On April 11, 2003, the Panel issued Remand). Cement Committee (the petitioner) an order in Gray Portland Cement and On January 22, 2004, the Panel issued contested various aspects of the Clinker from Mexico; Final Results of an order affirming the Department’s Department’s Seventh Review Final the Seventh Antidumping Fourth Remand, and on February 2, Results. On May 30, 2002, the Article Administrative Review, Secretariat File 2004, the NAFTA Secretariat issued a 1904 Binational Panel (the Panel) issued No. USA–MEX–99–1904–03 (April 11, notice of final panel action. See Gray an order in Gray Portland Cement and 2003) (Second Remand Order), Portland Cement and Clinker from Clinker from Mexico; Final Results of remanding to the Department its remand Mexico; Final Results of the Seventh the Seventh Antidumping redetermination in the First Remand. In Antidumping Administrative Review, Administrative Review, Secretariat File the Second Remand Order, the Panel Secretariat File No. USA–MEX–99– No. USA–MEX–99–1904–03 (May 30, instructed the Department to determine 1904–03 (January 22, 2004, and whether the U.S. sales by CDC should 2002) (First Remand Order), remanding February 2, 2004, respectively). be compared to the home-market sales to the Department the Seventh Review of Type V cement sold as Type I cement Amendment to Final Results Final Results. by CEMEX. The Department responded Pursuant to section 516A(g) of the In the First Remand Order, the Panel to the Second Remand Order in its Tariff Act of 1930, as amended (the Act), instructed the Department to do the remand redetermination in Gray we are now amending the final results following: (1) Explain why its findings Portland Cement and Clinker from of the administrative review of the regarding the difference in freight costs, Mexico; Final Results of the Seventh antidumping duty order on gray the relative profit levels, the number Antidumping Administrative Review; portland cement and clinker from and type of customers, and the disparity Final Results of Redetermination Mexico for the period August 1, 1996, in handling charges support the Pursuant to NAFTA Panel, May 27, through July 31, 1997. Based on the Department’s determination that sales of 2003 (Second Remand). final results of redetermination on Type V cement sold as Type I cement On September 4, 2003, the Panel remand, the weighted-average were outside the ordinary course of issued an order in Gray Portland antidumping margin for CEMEX and trade, (2) explain the basis of its Cement and Clinker from Mexico; Final GCCC changes from 49.58 percent, decision to assess duties on Results of the Seventh Antidumping calculated in the Seventh Review Final merchandise destined for consumption Administrative Review, Secretariat File Results, to 37.34 percent. outside the region, with particular No. USA–MEX–99–1904–03 (September The Department will determine and reference to the requirements of the U.S. 4, 2003) (Third Remand Order), U.S. Customs and Border Protection will Constitution, (3) reconsider its decision remanding to the Department its remand assess appropriate antidumping duties that sales by CEMEX of bag and bulk redetermination in the Second Remand. on entries of the subject merchandise cement should be classified as the same In the Third Remand Order, the Panel exported by firms covered by this like product and that sales of CEMEX’s instructed the Department not to use the review. We will issue appropriate bag and bulk cement were made at the adverse facts available it had applied in assessment instructions directly to CBP same level of trade, (4) reconsider its determining the margins on U.S. sales within 15 days of publication of these decision to treat U.S. warehousing by CEMEX when calculating the amended final results of review. expenses of CEMEX and CDC as indirect importer-specific assessment rate for We are issuing and publishing this selling expenses, (5) make the CDC. The Department responded to the determination and notice in accordance appropriate adjustment to normal value Third Remand Order in its remand with section 516A(g) of the Act. for CEMEX’s home-market pre-sale redetermination in Gray Portland warehousing expenses, (6) reconsider its Cement and Clinker from Mexico; Final Dated: March 5, 2004. decision to treat CDC’s sales to Results of the Seventh Antidumping James J. Jochum, unaffiliated U.S. customers as indirect Administrative Review, Secretariat File Assistant Secretary for Import export-price (EP) sales instead of No. USA–MEX–99–1904–03 (September Administration. constructed-export-price (CEP) sales in 15, 2003) (Third Remand). [FR Doc. 04–5544 Filed 3–10–04; 8:45 am] light of the decision of the Court of On November 25, 2003, the Panel BILLING CODE 3510–DS–P Appeals for the Federal Circuit (CAFC) issued an order in Gray Portland in AK Steel Corp. v. United States, 226 Cement and Clinker from Mexico; Final F.3d 1361 (2000), (7) correct errors it Results of the Seventh Antidumping COMMITTEE FOR THE made in its calculation of the difference- Administrative Review, Secretariat File IMPLEMENTATION OF TEXTILE in-merchandise (DIFMER) adjustment No. USA–MEX–99–1904–03 (November AGREEMENTS and explain its DIFMER decision 25, 2003) (Fourth Remand Order), further, and (8) explain its decision remanding to the Department its remand Request for Public Comments on further to allow CEMEX an adjustment redetermination in the Third Remand. Commercial Availability Petition under for home-market freight expenses. The In the Fourth Remand Order, the Panel the Andean Trade Promotion and Drug Department responded to the First instructed the Department to calculate Eradication Act (ATPDEA), the African Remand Order in its remand separate importer-specific assessment Growth and Opportunity Act (AGOA) redetermination in Gray Portland rates for CDC and CEMEX and not to and the United States - Caribbean Cement and Clinker from Mexico; Final apply adverse facts available with Basin Trade Partnership Act (CBTPA) respect to the calculation of normal Results of the Seventh Antidumping March 8, 2004. Administrative Review; Final Results of value for CDC. The Department AGENCY: The Committee for the Redetermination Pursuant to NAFTA responded to the Fourth Remand Order in its remand redetermination in Gray Implementation of Textile Agreements ACTION: 1 Cementos de Chihuahua, S.A. de C.V. (CDC), Portland Cement and Clinker from Request for public comments was GCCC’s formal name during this segment of the Mexico; Final Results of the Seventh concerning a petition for a proceeding. Antidumping Administrative Review, determination that round cut 10-wale
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per inch cotton corduroy cannot be formed in the United States, if it has CITA will protect any business supplied by the domestic industry in been determined that such fabric or yarn confidential information that is marked commercial quantities in a timely cannot be supplied by the domestic business confidential from disclosure to manner under the ATPDEA, AGOA and industry in commercial quantities in a the full extent permitted by law. CITA CBTPA. timely manner. In Executive Order No. will make available to the public non- 13191 (66 FR 7271) and pursuant to confidential versions of the request and SUMMARY: On March 5, 2004, the Executive Order No. 13277 (67 FR non-confidential versions of any public Chairman of CITA received a petition 70305) and the United States Trade comments received with respect to a from S. Schwab Company Inc. alleging Representative’s Notice of Redelegation request in room 3100 in the Herbert that smooth, round cut 10-wale per inch of Authority and Further Assignment of Hoover Building, 14th and Constitution (4-wale per centimeter) 100% cotton Functions (67 FR 71606), CITA has been Avenue, N.W., Washington, DC 20230. corduroy for use in manufacturing delegated the authority to determine Persons submitting comments on a apparel articles, classified in whether yarns or fabrics cannot be request are encouraged to include a non- subheading 5801.22.90 of the supplied by the domestic industry in confidential version and a non- Harmonized Tariff Schedule of the commercial quantities in a timely confidential summary. United States (HTSUS), cannot be manner under the AGOA, the CBTPA, James C. Leonard III, supplied by the domestic industry in or the ATPDEA. On March 6, 2001, commercial quantities in a timely CITA published procedures that it will Chairman, Committee for the Implementation of Textile Agreements. manner. It requests that apparel articles follow in considering requests (66 FR of such fabrics be eligible for 13502). [FR Doc. 04–5601 Filed 3–9–04; 10:44 am] preferential treatment under the On March 5, 2004, the Chairman of BILLING CODE 3510–DR–S ATPDEA, the AGOA and the CBTPA. CITA received a petition from S. CITA hereby solicits public comments Schwab Company Inc. alleging that on this petition, in particular with smooth, round cut 10-wale per inch (4- COMMITTEE FOR THE regard to whether this fabric can be wale per centimeter) 100% cotton IMPLEMENTATION OF TEXTILE supplied by the domestic industry in corduroy for use in manufacturing AGREEMENTS commercial quantities in a timely apparel articles, classified in manner. Comments must be submitted Request for Public Comments on subheading 5801.22.90 of the Commercial Availability Request under by March 26, 2004 to the Chairman, Harmonized Tariff Schedule of the Committee for the Implementation of the United States-Caribbean Basin United States (HTSUS), cannot be Trade Partnership Act (CBTPA) Textile Agreements, Room 3001, United supplied by the domestic industry in States Department of Commerce, 14th commercial quantities in a timely March 8, 2004. and Constitution, N.W., Washington, manner and requesting quota- and duty- AGENCY: The Committee for the D.C. 20230 free treatment under the ADPTEA, the Implementation of Textile Agreements FOR FURTHER INFORMATION CONTACT: AGOA and the CBTPA for apparel (CITA). Anna Flaaten, International Trade articles that are cut and sewn in one or ACTION: Request for public comments Specialist, Office of Textiles and more ADPTEA, AGOA or CBTPA concerning a request for a determination Apparel, U.S. Department of Commerce, beneficiary countries from such fabrics. that apparel made from 100 percent (202) 482-3400. CITA is soliciting public comments cotton woven flannel fabrics made from SUPPLEMENTARY INFORMATION: regarding this request, particularly with 14 through 41 NM single ring-spun respect to whether this fabric can be Authority: Section 112(b)(5)(B) of the yarns of different colors cannot be AGOA; Section 213(b)(2)(A)(v)(II) of the supplied by the domestic industry in supplied by the domestic industry in Caribbean Basin Economic Recovery Act, as commercial quantities in a timely commercial quantities in a timely added by Section 211(a) of the CBTPA; manner. Also relevant is whether other manner under the CBTPA. Sections 1 and 6 of Executive Order No. fabrics that are supplied by the domestic 13191 of January 17, 2001; Presidential industry in commercial quantities in a SUMMARY: On March 4, 2004, the Proclamations 7350 and 7351 of October 4, timely manner are substitutable for the Chairman of CITA received a petition 2000; Section 204 (b)(3)(B)(ii) of the fabric for purposes of the intended use. from Dillard’s, Inc. and BWA, Inc. ATPDEA, Presidential Proclamation 7616 of Comments must be received no later alleging that 100 percent cotton woven October 31, 2002, Executive Order 13277 of flannel fabrics made from 14 through 41 November 19, 2002, and the United States than March 26, 2004. Interested persons Trade Representative’s Notice of Further are invited to submit six copies of such NM single ring-spun yarns of different Assignment of Functions of November 25, comments or information to the colors, classified in subheading 2002. Chairman, Committee for the 5208.43.00 of the Harmonized Tariff Implementation of Textile Agreements, Schedule of the United States (HTSUS) BACKGROUND: room 3100, U.S. Department of of 2 X 1 twill weave construction, The ATPDEA, the AGOA and the Commerce, 14th and Constitution weighing not more than 200 grams per CBTPA provide for quota- and duty-free Avenue, N.W., Washington, DC 20230. square meter, for use in apparel articles, treatment for qualifying textile and If a comment alleges that this fabric excluding gloves, cannot be supplied by apparel products. Such treatment is can be supplied by the domestic the domestic industry in commercial generally limited to products industry in commercial quantities in a quantities in a timely manner. It manufactured from yarns or fabrics timely manner, CITA will closely requests that apparel of such fabrics cut formed in the United States. The review any supporting documentation, and sewn in one or more CBTPA ATPDEA, the AGOA, and the CBTPA such as a signed statement by a beneficiary country be eligible for also provide for quota- and duty-free manufacturer of the fabric stating that it preferential treatment under the CBTPA. treatment for apparel articles that are produces the fabric that is the subject of CITA hereby solicits public comments both cut (or knit-to-shape) and sewn or the request, including the quantities that on this request, in particular with regard otherwise assembled in one or more can be supplied and the time necessary to whether such fabrics can be supplied ATPDEA, AGOA, or CBTPA beneficiary to fill an order, as well as any relevant by the domestic industry in commercial countries from fabric or yarn that is not information regarding past production. quantities in a timely manner.
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Comments must be submitted by March CITA is soliciting public comments utilizing emergency review procedures, 26, 2004 to the Chairman, Committee for regarding this request, particularly with to the Office of Management and Budget the Implementation of Textile respect to whether these fabrics can be (OMB) for review and clearance in Agreements, room 3001, United States supplied by the domestic industry in accordance with the Paperwork Department of Commerce, 14th and commercial quantities in a timely Reduction Act of 1995 (Pub. L. 104–13, Constitution Avenue, N.W. Washington, manner. Also relevant is whether other 44 U.S.C. chapter 35). The Corporation D.C. 20230. fabrics that are supplied by the domestic requests that OMB review and approve FOR FURTHER INFORMATION CONTACT: industry in commercial quantities in a its three emergency requests by March Janet Heinzen, International Trade timely manner are substitutable for the 16, 2004, for a period of six (6) months. Specialist, Office of Textiles and fabrics for purposes of the intended use. A copy of this ICRs, with applicable Apparel, U.S. Department of Commerce, Comments must be received no later supporting documentation, may be (202) 482-3400. than March 26, 2004. Interested persons obtained by contacting the Corporation SUPPLEMENTARY INFORMATION: are invited to submit six copies of such for National and Community Service, comments or information to the Attn: Ms. Shannon Maynard, at (202) Authority: Section 213(b)(2)(A)(v)(II) of the Chairman, Committee for the 606–5000, ext. 428, or by e-mail at Caribbean Basin Economic Recovery Act Implementation of Textile Agreements, [email protected]. (CBERA), as added by Section 211(a) of the CBTPA; Section 6 of Executive Order No. room 3100, U.S. Department of Currently, the Corporation is 13191 of January 17, 2001. Commerce, 14th and Constitution soliciting emergency approval Avenue, N.W., Washington, DC 20230. concerning the Spirit of Service Award BACKGROUND: If a comment alleges that these fabrics nomination guidelines for Senior Corps, The CBTPA provides for quota- and can be supplied by the domestic AmeriCorps, and Learn and Serve duty-free treatment for qualifying textile industry in commercial quantities in a America. timely manner, CITA will closely and apparel products. Such treatment is Part I generally limited to products review any supporting documentation, manufactured from yarns or fabrics such as a signed statement by a Type of Review: Emergency. formed in the United States or a manufacturer of the fabrics stating that Agency: Corporation for National and beneficiary country. The CBTPA also it produces the fabrics that are the Community Service. authorizes quota- and duty-free subject of the request, including the Title: Spirit of Service Awards treatment for apparel articles that are quantities that can be supplied and the Nomination Guidelines and both cut (or knit-to-shape) and sewn or time necessary to fill an order, as well Application—Senior Corps. otherwise assembled in one or more as any relevant information regarding OMB Number: None. CBTPA beneficiary country from fabric past production. Agency Number: None. or yarn that is not formed in the United CITA will protect any business Affected Public: Individuals or States, if it has been determined that confidential information that is marked households, not-for-profit institutions, such fabric or yarns cannot be supplied ‘‘business confidential’’ from disclosure and State, local or tribal government. Total Respondents: 200. by the domestic industry in commercial to the full extent permitted by law. Frequency: One time. quantities in a timely manner. In CITA will make available to the public Average Time Per Response: 3 hours. Executive Order No. 13191 (66 FR non-confidential versions of the request Estimated Total Burden Hours: 600 7271), the President delegated to CITA and non-confidential versions of any hours. the authority to determine whether public comments received with respect Total Burden Cost (Capital/Startup): yarns or fabrics cannot be supplied by to a request in room 3100 in the Herbert $9,900. the domestic industry in commercial Hoover Building, 14th and Constitution Avenue, N.W., Washington, DC 20230. Total Burden Cost (Operating/ quantities in a timely manner under the Maintenance): $0. CBTPA and directed CITA to establish Persons submitting comments on a procedures to ensure appropriate public request are encouraged to include a non- Part II confidential version and a non- participation in any such determination. Type of Review: Emergency. confidential summary. On March 6, 2001, CITA published Agency: Corporation for National and procedures in the Federal Register that James C. Leonard III, Community Service. it will follow in considering requests. Chairman, Committee for the Implementation Title: Spirit of Service Awards (66 FR 13502). of Textile Agreements. Nomination Guidelines and On March 4, 2004, the Chairman of [FR Doc. 04–5600 Filed 3–9–04; 10:45 am] Application—AmeriCorps. CITA received a petition from Dillards, BILLING CODE 3510–DR–S OMB Number: None. Inc. and BWA, Inc. alleging that 100 Agency Number: None. percent cotton woven flannel fabrics, Affected Public: Individuals or made from 14 through 41 NM single households, not-for-profit institutions, ring-spun yarns of different colors, CORPORATION FOR NATIONAL AND COMMUNITY SERVICE and State, local or tribal government. classified in 5208.43.00 of the HTSUS, Total Respondents: 200. of 2 X 1 twill weave construction, Proposed Information Collection; OMB Frequency: One time. weighing not more than 200 grams per Emergency Approval Request Average Time Per Response: 3 hours. square meters, for use in apparel Estimated Total Burden Hours: 600 articles, excluding gloves, cannot be AGENCY: Corporation for National and hours. supplied by the domestic industry in Community Service. Total Burden Cost (Capital/Startup): commercial quantities in a timely ACTION: Request for emergency approval. $9,900. manner and requesting quota- and duty- Total Burden Cost (Operating/ free treatment under the CBTPA for SUMMARY: The Corporation for National Maintenance): $0. apparel articles that are both cut and and Community Service (hereinafter the sewn in one or more CBTPA beneficiary ‘‘Corporation’’), has submitted three Part III country from such fabrics. information collection requests (ICR) Type of Review: Emergency.
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Agency: Corporation for National and Dated: March 5, 2004. consider can only be obtained from Community Service. Sandy Scott, physicians who have treated the Title: Spirit of Service Awards Acting Director, Office of Public Affairs. individual. Obtaining such information Nomination Guidelines and [FR Doc. 04–5490 Filed 3–10–04; 8:45 am] provides the adjudicator with a complex Application—Learn and Serve America. BILLING CODE 6050–$$–P picture of the individual. Without it, the OMB Number: None. adjudicator may not be able to make a Agency Number: None. determination as to whether or not the Affected Public: Individuals or DEPARTMENT OF DEFENSE individual should be granted access to households, not-for-profit institutions, classified information. and State, local or tribal government. Office of the Secretary Affected Public: Individuals, business, Total Respondents: 200. or households. Frequency: One time. Proposed Collection; Comment Annual Burden Respondents: 11,700. Average Time Per Response: 3 hours. Request Number of Burden Hours: 7,020. Estimated Total Burden Hours: 600 Number of Respondents: 11,700. AGENCY: Department of Defense, Defense hours. Responses Per Respondent: 1. Security Service. Total Burden Cost (Capital/Startup): Average Burden Per Response: 0.6 $9,900. ACTION: The Department of Defense has hours. Total Burden Cost (Operating/ submitted to OMB for clearance the Frequency: On occasion. Maintenance): $0. following proposal for collection of SUPPLEMENTARY INFORMATION: information under the provisions of the Description: The Spirit of Service Summary of Information Collection Awards enable the Corporation to Paperwork Reduction Act (44 U.S.C. recognize exceptional organizations and chapter 35). See ‘‘Needs and Uses’’. program participants from each of the Dated: March 4, 2004. Corporation’s three programs, Senior DATES: Consideration will be given to all L.M. Bynum, comments received by 5/15/2004. Corps, AmeriCorps, and Learn and Alternate OSD Federal Register Liaison Serve America. For 2004, the ADDRESSES: Written comments and Officer, Department of Defense. Corporation plans to establish specific recommendations on the proposed [FR Doc. 04–5459 Filed 3–10–04; 8:45 am] nomination guidelines for each of the information collection should be sent to BILLING CODE 5001–01–M programs and develop a formal the Defense Security Service. nomination process, which involves FOR FURTHER INFORMATION CONTACT: To voluntary information collection from request more information on this DEPARTMENT OF DEFENSE non-government individuals. proposed information collection or to Prior to 2003, AmeriCorps recognized obtain a copy of the proposal and Office of the Secretary its outstanding members annually associated collection instruments, Meeting of the Advisory Council on through the All-AmeriCorps Awards, please write to the above address, or call Dependents’ Education which were initiated in 1999 and the Defense Security Service at (703) presented by President Clinton as part 325–6182. AGENCY: Department of Defense of the 5th anniversary celebration of the Title, Associated Forms, and OMB Education Activity (DoDEA), DoD. program. Senior Corps had recognized Number: Defense Security Service FL ACTION: Open meeting notice. its outstanding projects and volunteers 14–a, Medical Information at its own national conference, and Questionnaire, July 2003, OMB No. SUMMARY: Pursuant to the Federal Learn and Serve America recognized 0704–0206 Advisory Committee Act, appendix 2 of exemplary programs and participants Needs and Uses: The specific title 5, United States Code, Public Law through its Leaders School selection and objective of a personnel security 92–463, notice is hereby given that a the President’s Student Service Awards. investigation is to elicit information meeting of the Advisory Council on The Corporation hereby submits its concerning the loyalty, character, and Dependents’ Education (ACDE) is request for emergency review and reliability of the individual being scheduled to be held on April 30, 2004, approval by OMB of the Spirit of investigated so that the DoD adjudicator from 8 a.m. to 5 p.m. The meeting will Service Awards nomination for its three may determine if it is clearly consistent be held at the New Sanno Hotel, 4–12– programs. The goal is to implement the with the interests of national security to 20 Minami-Azabu, Minato-ku, Tokyo nomination process in time to present grant the individual access to classified 106–00047, Japan. The purpose of the the Spirit of Service Award winners at information (or to continue such ACDE is to recommend to the Director, the Corporation’s 2004 National access), or to place the individual (or DoDEA, general policies for the Conference on Community Volunteering retain them) in a sensitive national operation of the Department of Defense and National Service, June 6–8, 2004, in security position. Adjudicative Dependents Schools (DoDDS); to Kansas City, Missouri. The Corporation determinations are made in accordance provide the Director with information has requested emergency status for six with DoD 5200.2–R, ‘‘DoD Personnel about effective educational programs (6) months to enable it to proceed with Security Program,’’ which requires the and practices that should be considered this year’s awards process in a timely DoD adjudicator to consider both by DoDDS; and to perform other tasks as manner. Because the conference is potentially disqualifying information may be required by the Secretary of scheduled to take place in June 2004, and mitigating information when there Defense. The meeting emphases will be there was not enough time for an initial is an indication that the individual has the current operational qualities of public comment period prior to a history of mental or nervous disorder; schools and the institutionalized school submitting this request to OMB. use or abuse of prescribed or illegal improvement processes, as well as other However, if OMB approves this drugs, such as marijuana, narcotics or educational matters. For further emergency request, the Corporation will barbiturates; or abuse or excessive use of information contact Mr. Jim Jarrard, at issue another notice that will afford the alcohol. Much of the appropriate 703–588–3121 or at public 60-days to provide its comments. information which the adjudicator must [email protected].
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Dated: March 4, 2004. app. II), it has been determined that and determine their applicability to L.M. Bynum, these Defense Science Board Task Force DOD needs. Alternate OSD Federal Register Liaison meetings concern matters listed in 5 In accordance with section 10(d) of Officer, Department of Defense. U.S.C. 552b(c)(1) and that, accordingly, the Federal Advisory Committee Act, [FR Doc. 04–5458 Filed 3–10–04; 8:45 am] the meetings will be closed to the Pub. L. 92–463, as amended (5 U.S.C. BILLING CODE 5001–06–M public. app. II), it has been determined that this Dated: March 4, 2004. Defense Science Board Task Force meeting concerns matters listed in 5 L.M. Bynum, DEPARTMENT OF DEFENSE U.S.C. 552b(c)(1) and that, accordingly, Alternate OSD Federal Register Liaison the meeting will be closed to the public. Officer, Department of Defense. Office of the Secretary Due to scheduling conflicts, there is [FR Doc. 04–5460 Filed 3–10–04; 8:45 am] insufficient time to provide timely Defense Science Board BILLING CODE 5001–06–M notice required by section 10(a)(2) of the AGENCY: Department of Defense. Federal Advisory Committee Act and subsection 101–6.1015(b) of the GSA ACTION: Notice of Advisory committee DEPARTMENT OF DEFENSE meeting. Final Rule on Federal Advisory Office of the Secretary Committee Management, 41 CFR part SUMMARY: The Defense Science Board 101–6, which further requires Task Force on High Performance Defense Science Board publication at least 15 calendar days Microchip supply will meet in closed prior to the meeting of this Task Force. session on April 13–14, 2004; May 20– AGENCY: Department of Defense. Dated: March 3, 2004. 21, 2004; June 23–24, 2004; and July 29– ACTION: Notice of advisory committee 30, 2004, at Strategic Analysis Inc., 3601 meetings. L.M. Bynum, Wilson Boulevard, Arlington, VA. The Alternate OSD Federal Register Liaison SUMMARY: Task Force will assess the implications The Defense Science Board Officer, Department of Defense. of the movement of manufacturing Task Force on Corrosion Control will [FR Doc. 04–5461 Filed 3–10–04; 8:45 am] capability and design of high meet in closed sessions on March 15– BILLING CODE 5001–06–M performance microchips and will 16, 2004, at Strategic Analysis Inc., 3601 address the Department of Defense’s Wilson Boulevard, Arlington, VA. The (DoD) ability to obtain radiation Task Force will address corrosion DEPARTMENT OF DEFENSE control throughout a combat system’s hardened microchips, the ability to Office of the Secretary produce limited quantities of special life cycle: Design, construction, operation and maintenance. purpose microchips in a timely and Defense Science Board secure manner, and the ability to The mission of the Defense Science produce microchips in a timely manner Board is to advise the Secretary of AGENCY: Department of Defense. to meet emerging needs. Defense and the Under Secretary of ACTION: Notice of advisory committee The mission of the Defense Science Defense for Acquisition, Technology & meeting. Board is to advise the Secretary of Logistics on scientific and technical Defense and the Under Secretary of matters as they affect the perceived SUMMARY: The Defense Science Board Defense for Acquisition, Technology & needs of the Department of Defense. At Task Force on Contributions of Space Logistics on scientific and technical this meeting, the Task Force will assess Based Radar to Missile Defense will matters as they affect the perceived current on-going corrosion control meet in closed session on March 19, needs of the Department of Defense. efforts across the Department of Defense 2004, at the Institute for Defense Specifically, the Task Force will look at with particular attention to: Duplication Analyses, 1801 N. Beauregard Street, root causes associated with the of research efforts; application of Alexandria, VA. This Task Force will migration of the manufacturing current and future technology which assess potential contributions of Space capability of high performance currently exists in one area to other Based Radar (SBR) to missile defense. semiconductors; policies or technology areas (i.e., submarine application which The mission of the Defense Science investments that DoD, either alone or in might translate to aircraft applications); Board is to advise the Secretary of conjunction with other U.S. government the current state of operator and Defense and the Under Secretary of agencies, can pursue which will maintenance personnel training with Defense for Acquisition, Technology & influence the migration of regards to corrosion control and Logistics on scientific and technical manufacturing to foreign shores; prevention; the current state of matters as they affect the perceived alternatives to the creation of trusted maintenance processes with regards to needs of the Department of Defense. foundries based on U.S. territory; corrosion control and prevention; the This Task Force will: Assess the impact whether testing is a viable alternative incorporation of corrosion control and of adding a missile defense mission on and if so, the level of assurance testing maintainability in current acquisition the ability of SBR satellites to conduct will provide to guarantee that only programs (during the design and their primary missions; assess how intended functions are built into the manufacturing stages); the identity of different SBR architectures and microchip; alternative manufacturing unique environments important to technical approaches might affect the techniques which may allow overseas National Security but with little ability of the satellites to achieve their fabrication of the microchips and commercial applications (e.g., nuclear primary missions and to contribute to subsequent interconnect development weapons). The Task Force will conduct missile defense; assess the value of in the U.S.; and future technologies an analysis of the findings generated potential SBR capabilities in the context which the U.S. may invest in to replace and determine which areas, if adequate of the family of sensors being developed the current microchip technology. resources were applied, would provide by the Missile Defense Agency; and In accordance with section 10(d) of the most significant advances in combat recommend any future actions that the Federal Advisory Committee Act, readiness. In addition, the Task Force might be desirable related to SBR Pub. L. 92–463, as amended (5 U.S.C. will assess best commercial practices contributions to missile defense.
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In accordance with section 10(d) of SUMMARY: We published a notice in the DEPARTMENT OF ENERGY the Federal Advisory Committee Act, Federal Register on February 23, 2004 Pub. L. 92–463, as amended (5 U.S.C. (69 FR 8318) inviting applications for Federal Energy Regulatory app. II), it has been determined that new awards for fiscal year 2004 for the Commission these Defense Science Board Task Force State Charter School Facilities Incentive [Docket No. CP04–67–000] meetings concern matters listed in 5 Grants Program. We inadvertently U.S.C. 552b(c)(1) and that, accordingly, omitted words from the text. This notice Algonquin Gas Transmission these meetings will be closed to the corrects that error. Company; Notice of Application public. Due to scheduling difficulties, there is Correction March 5, 2004. insufficient time to provide timely Take notice that on February 26, 2004, notice required by section 10(a)(2) of the In the Federal Register of February Algonquin Gas Transmission Company Federal Advisory Committee Act and 23, 2004, in FR Doc. 04–3849, on page (Algonquin), 5400 Westheimer Court, subsection 101–6.1015(b) of the GSA 8319, column 3, line 8, after the word Houston, Texas 77056–5310, filed in Final Rule on Federal Advisory ‘‘competition’’, insert the words ‘‘for Docket No. CP04–67–000 an application Committee Management, 41 CFR part construction’’. pursuant to section 7(c) of the Natural 101–6, which further requires Gas Act (NGA) and Part 157 of the FOR FURTHER INFORMATION CONTACT: publication at least 15 calendar days Commission’s regulations for prior to the meeting of the Task Force. Valarie Perkins or Jim Houser, U.S. authorization to install, own, operate, Department of Education, 400 Maryland and maintain certain facilities at its Dated: March 5, 2004. Avenue, SW., room 3C140, Washington, existing Burrillville Compressor Station L.M. Bynum, DC 20202–6140. Telephone: (202) 260– in Providence County, Rhode Island and Alternate OSD Federal Register Liaison 1924 or by e-mail: at certain existing meter and valve Officer, Department of Defense. [email protected]. stations in Tolland, Hartford, and New [FR Doc. 04–5462 Filed 3–10–04; 8:45 am] London Counties, Connecticut, If you use a telecommunications BILLING CODE 5001–06–M Barnstable and Bristol Counties, device for the deaf (TDD), you may call Massachusetts, and Newport County, the Federal Information Relay Service Rhode Island, at an estimated cost of DEPARTMENT OF EDUCATION (FIRS) at 1–800–877–8339. $11,514,000. Algonquin requests Individuals with disabilities may issuance of a final certificate by May 26, Submission for OMB Review; obtain this document in an alternative 2004. Algonquin states that the Comment Request format (e.g., Braille, large print, modifications to its system will create AGENCY: Department of Education. audiotape, or computer diskette) on 60,000 Dth/d of additional capacity for the transportation of vaporized liquefied ACTION: Correction notice. request to the program contact persons listed in this section. natural gas (LNG) volumes received SUMMARY: from the LNG import terminal of On February 20, 2004, the Electronic Access to This Document: Department of Education published a Distrigas of Massachusetts, LLC in You may view this document, as well as 30-day public comment period notice in Everett, Massachusetts, all as more fully all other documents of this Department the Federal Register (Page 7912, set forth in the application which is on published in the Federal Register, in Column 1) for the information file with the Commission and open to collection, ‘‘Annual Progress Reporting text or Adobe Portable Document public inspection. This filing is Form for Assistive Technology (AT) Format (PDF) on the Internet at the available for review at the Commission Grantees’’. The number of burden hours following site: http://www.ed.gov/news/ or may be viewed on the Commission’s was incorrect and should read 2,464 fedregister. Web site at http://www.ferc.gov using hours to include an additional four To use PDF you must have Adobe the ‘‘e-Library’’ link. Enter the docket hours for each of the 56 grantees to Acrobat Reader, which is available free number excluding the last three digits in answer the modified/additional at this site. If you have questions about the docket number field to access the questions. using PDF, call the U.S. Government document. For assistance, please contact FERC Online Support at FOR FURTHER INFORMATION CONTACT: Printing Office (GPO), toll free, at 1– [email protected] or toll- Sheila Carey at her e-mail address 888–293–6498; or in the Washington, free at (866) 208–3676, or for TTY, [email protected]. DC, area at (202) 512–1530. contact (202) 502–8659. Dated: March 5, 2004. Note: The official version of this document Any questions concerning this Angela C. Arrington, is the document published in the Federal application may be directed to Steven E. Leader, Regulatory Information Management Register. Free Internet access to the official Tillman, General Manager, Regulatory Group, Office of the Chief Information Officer. edition of the Federal Register and the Code Affairs, Algonquin Gas Transmission [FR Doc. 04–5425 Filed 3–10–04; 8:45 am] of Federal Regulations is available on GPO Company, P.O. Box 1642, Houston, BILLING CODE 4000–01–P access at: http://www.gpoaccess.gov/nara/ Texas 77251–1642, or phone (713) 627– index.html. 5113, or fax (713) 627–5947 There are two ways to become DEPARTMENT OF EDUCATION Dated: March 5, 2004. involved in the Commission’s review of Nina Shokraii Rees, this project. First, any person wishing to State Charter School Facilities Deputy Under Secretary for Innovation and obtain legal status by becoming a party Incentive Grants Program (CFDA Improvement. to the proceedings for this project Number: 84.282D) [FR Doc. 04–5554 Filed 3–10–04; 8:45 am] should, on or before the comment date AGENCY: Department of Education, BILLING CODE 4000–01–P shown below, file with the Federal Office of Innovation and Improvement. Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, ACTION: Notice; correction. a motion to intervene in accordance
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with the requirements of the Comment Date: March 19, 2004. instructions on the Commission’s Web Commission’s Rules of Practice and site under the e-Filing link. Magalie R. Salas, Procedure (18 CFR 385.214 or 385.211) Magalie R. Salas, and the Regulations under the NGA (18 Secretary. CFR 157.10). A person obtaining party [FR Doc. E4–538 Filed 03–10–04; 8:45 am] Secretary. status will be placed on the service list BILLING CODE 6717–01–P [FR Doc. E4–516 Filed 3–10–04; 8:45 am] maintained by the Secretary of the BILLING CODE 6717–01–P Commission and will receive copies of all documents filed by the applicant and DEPARTMENT OF ENERGY DEPARTMENT OF ENERGY by all other parties. A party must submit Federal Energy Regulatory 14 copies of filings made with the Commission Federal Energy Regulatory Commission and must mail a copy to Commission the applicant and to every other party in the proceeding. Only parties to the [Docket No. RP00–332–008] [Docket No. RP04–201–000] proceeding can ask for court review of ANR Pipeline Company; Notice of Commission orders in the proceeding. Compliance Filing ANR Pipeline Company; Notice Of However, a person does not have to Proposed Changes In Ferc Gas Tariff intervene in order to have comments March 4, 2004. considered. The second way to Take notice that on March 2, 2004, March 4, 2004. participate is by filing with the ANR Pipeline Company (ANR) tendered Take notice that on March 1, 2004, Secretary of the Commission, as soon as for filing as part of in FERC Gas Tariff, ANR Pipeline Company (ANR) tendered possible, an original and two copies of Second Revised Volume No. 1, the for filing as part of its FERC Gas Tariff, comments in support of or in opposition following tariff sheets, with an effective Second Revised Volume No. 1, the to this project. The Commission will date of October 1, 2003: following tariff sheets to be effective consider these comments in Fifth Revised Sheet 108A April 1, 2004: determining the appropriate action to be Second Revised Sheet 108B Twentieth Revised Sheet No. 19 taken, but the filing of a comment alone Fourth Revised Sheet No. 108C Tenth Revised Sheet No. 68H will not serve to make the filer a party Fifth Revised Sheet No. 160 to the proceeding. The Commission’s Fifth Revised Sheet No. 160A ANR states that the above-referenced rules require that persons filing tariff sheets are being filed to comply comments in opposition to the project ANR states that it is tendering the with the annual re-determination of the provide copies of their protests only to revised tariff sheets to incorporate levels of ‘‘Transporter’s Fuel Use (%)’’, the party or parties directly involved in changes that were inadvertently left out as required by ANR’s currently effective the protest. of ANR’s 637 proceeding. In particular, tariff. ANR states that it is adding sheets to Persons who wish to comment only incorporate additional nomination Any person desiring to be heard or to on the environmental review of this opportunities as agreed to in ANR’s 637 protest said filing should file a motion project should submit an original and settlement. to intervene or a protest with the two copies of their comments to the Federal Energy Regulatory Commission, Any person desiring to protest said Secretary of the Commission. 888 First Street, NE., Washington, DC filing should file a protest with the Environmental commenters will be 20426, in accordance with sections Federal Energy Regulatory Commission, placed on the Commission’s 385.214 or 385.211 of the Commission’s 888 First Street, NE., Washington, DC environmental mailing list, will receive Rules and Regulations. All such motions 20426, in accordance with Section copies of the environmental documents, or protests must be filed in accordance 385.211 of the Commission’s Rules and and will be notified of meetings with section 154.210 of the Regulations. All such protests must be associated with the Commission’s filed in accordance with section 154.210 Commission’s Regulations. Protests will environmental review process. of the Commission’s Regulations. be considered by the Commission in Environmental commenters will not be Protests will be considered by the determining the appropriate action to be required to serve copies of filed Commission in determining the taken, but will not serve to make documents on all other parties. appropriate action to be taken, but will protestants parties to the proceedings. However, the non-party commenters not serve to make protestants parties to Any person wishing to become a party will not receive copies of all documents the proceedings. This filing is available must file a motion to intervene. This filed by other parties or issued by the for review at the Commission in the filing is available for review at the Commission (except for the mailing of Public Reference Room or may be Commission in the Public Reference environmental documents issued by the viewed on the Commission’s Web site at Room or may be viewed on the Commission) and will not have the right http://www.ferc.gov using the eLibrary Commission’s Web site at http:// to seek court review of the link. Enter the docket number excluding www.ferc.gov using the eLibrary. Enter Commission’s final order. the last three digits in the docket the docket number excluding the last Comments, protests and interventions number field to access the document. three digits in the docket number field may be filed electronically via the For assistance, please contact FERC to access the document. For assistance, Internet in lieu of paper. See 18 CFR Online Support at please contact FERC Online Support at 385.2001(a)(1)(iii) and the instructions [email protected] or toll- [email protected] or toll- on the Commission’s Web site under the free at (866) 208–3676, or TTY, contact free at (866) 208–3676, or TTY, contact ‘‘e-Filing’’ link. The Commission (202) 502–8659. The Commission (202) 502–8659. The Commission strongly encourages electronic filings. strongly encourages electronic filings. strongly encourages electronic filings. See 18 CFR 385.2001(a)(1)(iii) and the See 18 CFR 385.2001(a)(1)(iii) and the
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instructions on the Commission’s Web instructions on the Commission’s Web DEPARTMENT OF ENERGY site under the e-Filing link. site under the e-Filing link. Federal Energy Regulatory Magalie R. Salas, Magalie R. Salas, Commission Secretary. Secretary. [FR Doc. E4–528 Filed 3–10–04; 8:45 am] [FR Doc. E4–532 Filed 03–10–04; 8:45 am] [Docket No. RP99–301–105] BILLING CODE 6717–01–P BILLING CODE 6717–01–P ANR Pipeline Company; Notice of Negotiated Rate Filing DEPARTMENT OF ENERGY DEPARTMENT OF ENERGY March 5, 2004. Federal Energy Regulatory Federal Energy Regulatory Take notice that on March 1, 2004, Commission Commission ANR Pipeline Company (ANR) tendered for filing an amendment to a service [Docket No. RP99–301–106] [Docket No. RP99–301–107] agreement between ANR and Wisconsin Public Service Corporation that reduces ANR Pipeline Company; Notice of ANR Pipeline Company; Notice of the MDQ under the agreement. ANR Negotiated Rate Filing Negotiated Rate Filing respectfully requests that the March 4, 2004. March 4, 2004. Commission accept this agreement effective April 1, 2004. Take notice that on March 1, 2004, Take notice that on March 1, 2004, ANR Pipeline Company (ANR) tendered ANR Pipeline Company (ANR) tendered Any person desiring to be heard or to for filing and approval, three negotiated for filing a negotiated rate service protest said filing should file a motion rate service agreements between ANR agreement with Madison Gas and to intervene or a protest with the and Noble Energy, Inc., the respective Electric Company. ANR respectfully Federal Energy Regulatory Commission, negotiated rate letter agreements, and a requests that the Commission accept 888 First Street, NE., Washington, DC related Lease Dedication Agreement, this agreement effective November 1, 20426, in accordance with Sections along with related amendments to 2002. 385.214 or 385.211 of the Commission’s negotiated rate service agreements with Rules and Regulations. All such motions Any person desiring to be heard or to Chevron U.S.A. Inc. and BHP Billiton or protests must be filed in accordance protest said filing should file a motion Petroleum (Deepwater) Inc. with Section 154.210 of the to intervene or a protest with the Commission’s Regulations. Protests will ANR requests that the Commission Federal Energy Regulatory Commission, be considered by the Commission in accept and approve the subject 888 First Street, NE., Washington, DC determining the appropriate action to be negotiated rate agreements and related 20426, in accordance with sections taken, but will not serve to make amendments to be effective March 2, 385.214 or 385.211 of the Commission’s 2004. protestants parties to the proceedings. Rules and Regulations. All such motions Any person wishing to become a party Any person desiring to be heard or to or protests must be filed in accordance must file a motion to intervene. This protest said filing should file a motion with section 154.210 of the filing is available for review at the to intervene or a protest with the Commission’s Regulations. Protests will Commission in the Public Reference Federal Energy Regulatory Commission, be considered by the Commission in Room or may be viewed on the 888 First Street, NE., Washington, DC determining the appropriate action to be Commission’s Web site at http:// 20426, in accordance with sections taken, but will not serve to make www.ferc.gov using the eLibrary. Enter 385.214 or 385.211 of the Commission’s protestants parties to the proceedings. the docket number excluding the last Rules and Regulations. All such motions Any person wishing to become a party three digits in the docket number field or protests must be filed in accordance must file a motion to intervene. This with section 154.210 of the to access the document. For assistance, filing is available for review at the Commission’s Regulations. Protests will please contact FERC Online Support at Commission in the Public Reference be considered by the Commission in [email protected] or toll- Room or may be viewed on the determining the appropriate action to be free at (866) 208–3676, or TTY, contact Commission’s Web site at http:// taken, but will not serve to make (202) 502–8659. The Commission www.ferc.gov using the eLibrary. Enter protestants parties to the proceedings. strongly encourages electronic filings. the docket number excluding the last Any person wishing to become a party See, 18 CFR 385.2001(a)(1)(iii) and the three digits in the docket number field must file a motion to intervene. This instructions on the Commission’s Web to access the document. For assistance, filing is available for review at the site under the e-Filing link. Commission in the Public Reference please contact FERC Online Support at Room or may be viewed on the [email protected] or toll- Magalie R. Salas, Commission’s Web site at http:// free at (866) 208–3676, or TTY, contact Secretary. www.ferc.gov using the eLibrary. Enter (202) 502–8659. The Commission [FR Doc. E4–537 Filed 03–10–04; 8:45 am] the docket number excluding the last strongly encourages electronic filings. BILLING CODE 6717–01–P three digits in the docket number field See 18 CFR 385.2001(a)(1)(iii) and the to access the document. For assistance, instructions on the Commission’s Web please contact FERC Online Support at site under the e-Filing link. [email protected] or toll- Magalie R. Salas, free at (866) 208–3676, or TTY, contact (202) 502–8659. The Commission Secretary. strongly encourages electronic filings. [FR Doc. E4–533 Filed 3–10–04; 8:45 am] See, 18 CFR 385.2001(a)(1)(iii) and the BILLING CODE 6717–01–P
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DEPARTMENT OF ENERGY DEPARTMENT OF ENERGY free at (866) 208–3676, or TTY, contact (202) 502–8659. The Commission Federal Energy Regulatory Federal Energy Regulatory strongly encourages electronic filings. Commission Commission See 18 CFR 385.2001(a)(1)(iii) and the [Docket No. RP04–195–000] instructions on the Commission’s Web [Docket No. RP04–194–000] site under the e-Filing link. Columbia Gas Transmission Magalie R. Salas, Colorado Interstate Gas Company; Corporation; Notice of Proposed Secretary. Notice of Proposed Changes in FERC Changes in FERC Gas Tariff [FR Doc. E4–524 Filed 3–10–04; 8:45 am] Gas Filing March 4, 2004. BILLING CODE 6717–01–P March 4, 2004. Take notice that on March 1, 2004, Take notice that on March 1, 2004, Columbia Gas Transmission Corporation (Columbia) tendered for filing as part of DEPARTMENT OF ENERGY Colorado Interstate Gas Company (CIG) its FERC Gas Tariff, Second Revised tendered for filing as part of its FERC Federal Energy Regulatory Volume No. 1, the following revised Gas Tariff, First Revised Volume No. 1, Commission tariff sheets with a proposed effective Thirty-First Revised Sheet No. 11A, date of April 1, 2004: [Docket No. RP04–198–000] with an effective date of April 1, 2004. Sixty-ninth Revised Sheet No. 25 Columbia Gas Transmission CIG states the tariff sheet is being filed Sixty-ninth Revised Sheet No. 26 to revise the Fuel Reimbursement Corporation; Notice of Proposed Sixty-ninth Revised Sheet No. 27 Changes in FERC Gas Tariff Percentages applicable to Lost, Fifty-eighth Revised Sheet No. 28 Unaccounted-for and Other Fuel Gas. Nineteenth Revised Sheet No. 31 March 4, 2004. Any person desiring to be heard or to Columbia states that these revised Take notice that on March 1, 2004, protest said filing should file a motion tariff sheets are filed pursuant to section Columbia Gas Transmission Corporation to intervene or a protest with the 45, Electric Power Costs Adjustment (Columbia) tendered for filing as part of Federal Energy Regulatory Commission, (EPCA), of the General Terms and its FERC Gas Tariff, Second Revised 888 First Street, NE., Washington, DC Conditions of Columbia’s Tariff. Volume No. 1, the following tariff sheets 20426, in accordance with sections Columbia states that section 45.1 allows with a proposed effective date of April 1, 2004: 385.214 or 385.211 of the Commission’s Columbia to recover electric power Rules and Regulations. All such motions costs, including carrying charges, Sixty-eighth Revised Sheet No. 25 or protests must be filed in accordance incurred for compression of natural gas Sixty-eighth Revised Sheet No. 26 Sixty-eighth Revised Sheet No. 27 with section 154.210 of the by means of various Transportation EPCA Rates and an LNG EPCA Rate, Fifty-seventh Revised Sheet No. 28 Commission’s Regulations. Protests will each of which shall be comprised of a be considered by the Commission in Columbia states that copies of its Current EPCA Rate and an EPCA filing have been mailed to all firm determining the appropriate action to be Surcharge. customers, interruptible customers, and taken, but will not serve to make Columbia states that copies of its affected State commissions. protestants parties to the proceedings. filing have been mailed to all firm Any person desiring to be heard or to Any person wishing to become a party customers, interruptible customers, and protest said filing should file a motion must file a motion to intervene. This affected State commissions. to intervene or a protest with the filing is available for review at the Any person desiring to be heard or to Federal Energy Regulatory Commission, Commission in the Public Reference protest said filing should file a motion 888 First Street, NE., Washington, DC Room or may be viewed on the to intervene or a protest with the 20426, in accordance with sections Commission’s Web site at http:// Federal Energy Regulatory Commission, 385.214 or 385.211 of the Commission’s www.ferc.gov using the eLibrary. Enter 888 First Street, NE., Washington, DC rules and regulations. All such motions the docket number excluding the last 20426, in accordance with sections or protests must be filed in accordance three digits in the docket number field 385.214 or 385.211 of the Commission’s with section 154.210 of the to access the document. For assistance, Rules and Regulations. All such motions Commission’s regulations. Protests will please contact FERC Online Support at or protests must be filed in accordance be considered by the Commission in [email protected] or toll- with section 154.210 of the determining the appropriate action to be free at (866) 208–3676, or TTY, contact Commission’s Regulations. Protests will taken, but will not serve to make (202) 502–8659. The Commission be considered by the Commission in protestants parties to the proceedings. strongly encourages electronic filings. determining the appropriate action to be Any person wishing to become a party See 18 CFR 385.2001(a)(1)(iii) and the taken, but will not serve to make must file a motion to intervene. This instructions on the Commission’s Web protestants parties to the proceedings. filing is available for review at the site under the e-Filing link. Any person wishing to become a party Commission in the Public Reference must file a motion to intervene. This Room or may be viewed on the Magalie R. Salas, filing is available for review at the Commission’s Web site at http:// Secretary. Commission in the Public Reference www.ferc.gov using the eLibrary. Enter [FR Doc. E4–523 Filed 3–10–04; 8:45 am] Room or may be viewed on the the docket number excluding the last BILLING CODE 6717–01–P Commission’s Web site at http:// three digits in the docket number field www.ferc.gov using the eLibrary. Enter to access the document. For assistance, the docket number excluding the last please contact FERC Online Support at three digits in the docket number field [email protected] or toll- to access the document. For assistance, free at (866) 208–3676, or TTY, contact please contact FERC Online Support at (202) 502–8659. The Commission [email protected] or toll- strongly encourages electronic filings.
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See 18 CFR 385.2001(a)(1)(iii) and the three digits in the docket number field www.ferc.gov using the eLibrary. Enter instructions on the Commission’s Web to access the document. For assistance, the docket number excluding the last site under the e-Filing link. please contact FERC Online Support at three digits in the docket number field [email protected] or toll- to access the document. For assistance, Magalie R. Salas, free at (866) 208–3676, or TTY, contact please contact FERC Online Support at Secretary. (202) 502–8659. The Commission [email protected] or toll- [FR Doc. E4–526 Filed 3–10–04; 8:45 am] strongly encourages electronic filings. free at (866) 208–3676, or TTY, contact BILLING CODE 6717–01–P See 18 CFR 385.2001(a)(1)(iii) and the (202) 502–8659. The Commission instructions on the Commission’s Web strongly encourages electronic filings. site under the e-Filing link. See 18 CFR 385.2001(a)(1)(iii) and the DEPARTMENT OF ENERGY instructions on the Commission’s Web Magalie R. Salas, site under the e-Filing link. Federal Energy Regulatory Secretary. Commission [FR Doc. E4–544 Filed 3–10–04; 8:45 am] Magalie R. Salas, [Docket Nos. RP04–202–000 and RP03–222– BILLING CODE 6717–01–P Secretary. 001] [FR Doc. E4–525 Filed 3–10–04; 8:45 am] BILLING CODE 6717–01–P Columbia Gas Transmission DEPARTMENT OF ENERGY Corporation; Notice of Proposed Changes in FERC Gas Tariff Federal Energy Regulatory DEPARTMENT OF ENERGY Commission March 5, 2004. Federal Energy Regulatory [Docket No. RP04–196–000] Take notice that on March 1, 2004, Commission Columbia Gas Transmission Corporation Columbia Gulf Transmission [Docket No. RP04–197–000] (Columbia) tendered for filing as part of Company; Notice of Proposed its FERC Gas Tariff, Second Revised Changes in FERC Gas Tariff Dominion Cove Point LNG, LP; Notice Volume No. 1, Fourteenth Revised Of Proposed Changes In Ferc Gas Twelfth Revised Sheet No. 44 and March 4, 2004. Tariff Alternate Fourteenth Revised Sheet No. Take notice that on March 1, 2004, 44, with a proposed effective date of Columbia Gulf Transmission Company March 5, 2004. April 1, 2004. (Columbia Gulf) tendered for filing as Take notice that on March 1, 2004, Columbia states that it submits its part of its FERC Gas Tariff, Second Dominion Cove Point LNG, LP (Cove annual filing pursuant to the provisions Revised Volume No. 1, the following Point) tendered for filing as part of its of section 35, ‘‘Retainage Adjustment tariff sheets, with a proposed effective FERC Gas Tariff, Original Volume No. 1, Mechanism (RAM)’’, of the General date of April 1, 2004: the following tariff sheets, with a Terms and Conditions (GTC) of its Thirty-third Revised Sheet No. 18 proposed effective date of April 1, 2004: Tariff. Columbia notes that Fourteenth Twenty-third Revised Sheet No. 18A Fourth Revised Sheet No. 10 Revised Sheet No. 44 sets forth the Thirty-fourth Revised Sheet No. 19 Fourth Revised Sheet No. 205 retainage factors applicable to Columbia Gulf states that this filing Cove Point states that the purpose of Columbia’s transportation, storage and represents Columbia Gulf’s annual filing this filing is to revise the applicable gathering services, as revised by this pursuant to the provisions of section 33, retainage percentages for service filing. ‘‘Transportation Retainage Adjustment provided and clarify its tariff regarding Columbia states that copies of its (TRA),’’ of the General Terms and the timing of future filings to revise filing have been mailed to all firm Conditions (GTC) of its Tariff. retainage percentages. customers, interruptible customers, and Columbia Gulf states that copies of its Any person desiring to be heard or to affected State commissions. filing have been mailed to all firm protest said filing should file a motion Any person desiring to be heard or to customers, interruptible customers, and to intervene or a protest with the protest said filing should file a motion affected State commissions. Federal Energy Regulatory Commission, to intervene or a protest with the Any person desiring to be heard or to 888 First Street, NE., Washington, DC Federal Energy Regulatory Commission, protest said filing should file a motion 20426, in accordance with Sections 888 First Street, NE., Washington, DC to intervene or a protest with the 385.214 or 385.211 of the Commission’s 20426, in accordance with sections Federal Energy Regulatory Commission, Rules and Regulations. All such motions 385.214 or 385.211 of the Commission’s 888 First Street, NE., Washington, DC or protests must be filed in accordance rules and regulations. All such motions 20426, in accordance with sections with Section 154.210 of the or protests must be filed in accordance 385.214 or 385.211 of the Commission’s Commission’s Regulations. Protests will with section 154.210 of the rules and regulations. All such motions be considered by the Commission in Commission’s regulations. Protests will or protests must be filed in accordance determining the appropriate action to be be considered by the Commission in with section 154.210 of the taken, but will not serve to make determining the appropriate action to be Commission’s regulations. Protests will protestants parties to the proceedings. taken, but will not serve to make be considered by the Commission in Any person wishing to become a party protestants parties to the proceedings. determining the appropriate action to be must file a motion to intervene. This Any person wishing to become a party taken, but will not serve to make filing is available for review at the must file a motion to intervene. This protestants parties to the proceedings. Commission in the Public Reference filing is available for review at the Any person wishing to become a party Room or may be viewed on the Commission in the Public Reference must file a motion to intervene. This Commission’s Web site at http:// Room or may be viewed on the filing is available for review at the www.ferc.gov using the eLibrary. Enter Commission’s Web site at http:// Commission in the Public Reference the docket number excluding the last www.ferc.gov using the eLibrary. Enter Room or may be viewed on the three digits in the docket number field the docket number excluding the last Commission’s Web site at http:// to access the document. For assistance,
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please contact FERC Online Support at (202) 502–8659. The Commission link. Enter the docket number excluding [email protected] or toll- strongly encourages electronic filings. the last three digits in the docket free at (866) 208–3676, or TTY, contact See, 18 CFR 385.2001(a)(1)(iii) and the number field to access the document. (202) 502–8659. The Commission instructions on the Commission’s Web For assistance, please contact FERC strongly encourages electronic filings. site under the e-Filing link. Online Support at See, 18 CFR 385.2001(a)(1)(iii) and the [email protected] or toll- Magalie R. Salas, instructions on the Commission’s Web free at (866) 208–3676, or TTY, contact site under the e-Filing link. Secretary. (202) 502–8659. The Commission [FR Doc. E4–531 Filed 03–10–04; 8:45 am] Magalie R. Salas, strongly encourages electronic filings. BILLING CODE 6717–01–P See, 18 CFR 385.2001(a)(1)(iii) and the Secretary. instructions on the Commission’s Web [FR Doc. E4–542 Filed 3–10–04; 8:45 a.m.] site under the e-Filing link. BILLING CODE 6717–01–P DEPARTMENT OF ENERGY Magalie R. Salas, Federal Energy Regulatory Secretary. DEPARTMENT OF ENERGY Commission [FR Doc. E4–517 Filed 3–10–04; 8:45 a.m.] Federal Energy Regulatory [Docket Nos. RP00–469–008, RP01–22–010, BILLING CODE 6717–01–P and RP03–177–005] Commission [Docket No. RP04–206–000] East Tennessee Natural Gas Company; DEPARTMENT OF ENERGY Notice of Compliance Filing Dominion Transmission, Inc.; Notice of Federal Energy Regulatory Proposed Changes In FERC Gas Tariff March 4, 2004. Commission Take notice that on March 2, 2004, March 4, 2004. East Tennessee Natural Gas Company [Docket No. PR03–11–003] Take notice that on March 3, 2004, (East Tennessee) tendered for filing as Dominion Transmission, Inc. (DTI) part of its FERC Gas Tariff, Second Enbridge Pipelines (Louisiana tendered for filing as part of its FERC Revised Volume No. 1, the following Intrastate) LLC, Notice of Compliance Gas Tariff, Third Revised Volume No. 1, tariff sheets: (i) Second Sub Fifth Filing the following tariff sheets, with an Revised Sheet No. 52C and Second Sub effective date of April 1, 2004: Ninth Revised Sheet No. 176, each with March 4, 2004. First Revised Sheet No. 151 an effective date of September 1, 2003, Take notice that on February 12, 2004, Second Revised Sheet No. 201 and (ii) Second Sub Eighth Revised Enbridge Pipelines (Louisiana Intrastate) DTI states that the purpose of this Sheet No. 9, Second Sub Fourth Revised LLC filed its annual revision of the fuel filing is to clarify that DTI may agree to Sheet No. 129B, and Second Sub Fourth percentage on its system pursuant to differing levels in a customer’s Revised Sheet No. 130, each with an Section 3.2 of its Statement of Operating Maximum Daily Transportation effective date of November 3, 2003. Conditions. Quantity throughout the contract year East Tennessee states that the purpose Any person desiring to protest said for service under its Rate Schedules FT of this filing is to comply with the filing should file a protest with the and FTNN provided it does so on a not Commission’s February 18, 2004 ‘‘Order Federal Energy Regulatory Commission, unduly discriminatory basis. on Rehearing and Compliance Filings’’ 888 First Street, NE., Washington, DC Any person desiring to be heard or to issued in East Tennessee’s Order No. 20426, in accordance with Section protest said filing should file a motion 637 proceeding in the captioned 385.211 of the Commission’s Rules and to intervene or a protest with the dockets. Regulations. All such protests must be Federal Energy Regulatory Commission, East Tennessee states that copies of its filed on or before the protest date as 888 First Street, NE., Washington, DC filing have been served on all affected shown below. Protests will be 20426, in accordance with Sections customers and interested State considered by the Commission in 385.214 or 385.211 of the Commission’s commissions, as well as to all parties on determining the appropriate action to be Rules and Regulations. All such motions the official service lists compiled by the taken, but will not serve to make or protests must be filed in accordance Secretary of the Commission in these protestants parties to the proceedings. with Section 154.210 of the proceedings. This filing is available for review at the Commission’s Regulations. Protests will Any person desiring to protest said Commission in the Public Reference be considered by the Commission in filing should file a protest with the Room or may be viewed on the determining the appropriate action to be Federal Energy Regulatory Commission, Commission’s Web site at http:// taken, but will not serve to make 888 First Street, NE., Washington, DC www.ferc.gov using the eLibrary link. protestants parties to the proceedings. 20426, in accordance with section Enter the docket number excluding the Any person wishing to become a party 385.211 of the Commission’s Rules and last three digits in the docket number must file a motion to intervene. This Regulations. All such protests must be field to access the document. filing is available for review at the filed in accordance with section 154.210 Comments, protests and interventions Commission in the Public Reference of the Commission’s Regulations. may be filed electronically via the Room or may be viewed on the Protests will be considered by the Internet in lieu of paper. For assistance, Commission’s Web site at http:// Commission in determining the please contact FERC Online Support at www.ferc.gov using the eLibrary. Enter appropriate action to be taken, but will [email protected] or toll- the docket number excluding the last not serve to make protestants parties to free at (866) 208–3676, or TTY, contact three digits in the docket number field the proceedings. This filing is available (202) 502–8659. The Commission to access the document. For assistance, for review at the Commission in the strongly encourages electronic filings. please contact FERC Online Support at Public Reference Room or may be See, 18 CFR 385.2001(a)(1)(iii) and the [email protected] or toll- viewed on the Commission’s Web site at instructions on the Commission’s Web free at (866) 208–3676, or TTY, contact http://www.ferc.gov using the eLibrary site under the e-Filing link.
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Protest Date: March 12, 2004. Protest Date: March 11, 2004. DEPARTMENT OF ENERGY Magalie R. Salas, Magalie R. Salas, Federal Energy Regulatory Secretary. Secretary. Commission [FR Doc. E4–513 Filed 3–10–04;8:45 am] [FR Doc. E4–518 Filed 3–10–04; 8:45 am] [Docket Nos. CP04–68–000 and CP04–69– BILLING CODE 6717–01–P BILLING CODE 6717–01–P 000]
Freeport-McMoRan Energy LLC; Notice DEPARTMENT OF ENERGY DEPARTMENT OF ENERGY of Application
Federal Energy Regulatory Federal Energy Regulatory March 4, 2004. Commission Commission Take notice that on February 27, 2004, Freeport-McMoRan Energy LLC (FME), 1615 Poydras Street, New Orleans, [Docket No. RP03–199–001] [Docket No. RP04–203–000] Louisiana, 70112, filed in Docket Nos. Enbridge Pipelines (AlaTenn) LLC; Equitrans, L.P.; Notice of Tariff Filing CP04–68–000 and CP04–69–000 an Notice of Compliance Filing application, pursuant to section 7(c) of March 4, 2004. the Natural Gas Act and Part 157, March 4, 2004. subpart A of the Commission’s Take notice that on March 1, 2004, regulations, for: (1) A certificate of Take notice that on August 6, 2003, Equitrans, L.P. (Equitrans) tendered for public convenience and necessity to Enbridge Pipelines (AlaTenn) LLC filing as part of its FERC Gas Tariff, construct, own, and operate a single-use (AlaTenn) tendered for filing as part of Original Volume No. 1, revised tariff natural gas pipeline facility, the Coden its FERC Gas Tariff, Fourth Revised sheets listed in Appendix A to the Onshore Pipeline, to transport natural Volume No. 1, the following tariff filing, proposed to become effective on gas from the offshore Main Pass Energy sheets, with an effective date of August April 1, 2004. HubTM (MPEHTM) deepwater liquefied 1, 2003: Any person desiring to be heard or to natural gas (LNG) port to First Revised Sheet No. 28A protest said filing should file a motion interconnections with interstate natural Substitute First Revised Sheet No. 113 to intervene or a protest with the gas pipelines near Coden, Mobile Second Revised Sheet No. 118 Federal Energy Regulatory Commission, County, Alabama; and (2) a blanket 888 First Street, NE., Washington, DC certificate of public convenience and AlaTenn states that the purpose of the necessity in Docket No. CP04–69–000 20426, in accordance with sections filing is to comply with the under Subpart F of Part 157. The 385.214 or 385.211 of the Commission’s Commission’s Order issued on July 23, application is on file with the 2003, in the above referenced docket. Rules and Regulations. All such motions Commission and open to public or protests must be filed in accordance inspection. The filing may also be Any person desiring to protest said with section 154.210 of the filing should file a protest with the viewed on the Web at http:// Commission’s Regulations. Protests will www.ferc.gov using the ‘‘eLibrary’’ link. Federal Energy Regulatory Commission, be considered by the Commission in 888 First Street, NE., Washington, DC Enter the docket number excluding the determining the appropriate action to be last three digits in the docket number 20426, in accordance with section taken, but will not serve to make 385.211 of the Commission’s rules and field to access the document. For protestants parties to the proceedings. regulations. All such protests must be assistance, call (866) 208–3767 or TYY, Any person wishing to become a party filed on or before the protest date as (202) 502–8659. must file a motion to intervene. This FME proposes to construct, own, and shown below. Protests will be filing is available for review at the operate the Coden Onshore Pipeline, a considered by the Commission in Commission in the Public Reference 5.1-mile, 36-inch, single-use pipeline determining the appropriate action to be Room or may be viewed on the with a capacity of 1.5 billion cubic feet taken, but will not serve to make Commission’s Web site at http:// per day (Bcf/D). FME states that the sole protestants parties to the proceedings. purpose of these pipeline facilities This filing is available for review at the www.ferc.gov using the eLibrary. Enter the docket number excluding the last would be to transport natural gas owned Commission in the Public Reference by FME from FME’s proposed MPEHTM Room or may be viewed on the three digits in the docket number field to access the document. For assistance, offshore deepwater port for the Commission’s Web site at http:// importation and vaporization of LNG, www.ferc.gov using the ‘‘eLibrary’’ please contact FERC Online Support at [email protected] or toll- and processing, storage and (FERRIS) link. Enter the docket number transportation of natural gas and natural free at (866) 208–3676, or TTY, contact excluding the last three digits in the gas liquids, which would be located off (202) 502–8659. The Commission docket number field to access the the Louisiana coast. FME states that it strongly encourages electronic filings. document. Comments, protests and will operate the MPEHTM as a interventions may be filed electronically See, 18 CFR 385.2001(a)(1)(iii) and the proprietary deepwater LNG port via the Internet in lieu of paper. For instructions on the Commission’s web pursuant to the Deepwater Port Act of assistance, please contact FERC Online site under the e-Filing link. 1974. FME also states that it filed an Support at Magalie R. Salas, application to construct and operate the [email protected] or toll- TM Secretary. offshore portions of the MPEH project free at (866) 208–3676, or TTY, contact with the U.S. Coast Guard on February [FR Doc. E4–529 Filed 03–10–04; 8:45 am] (202) 502–8659. The Commission 27, 2004. strongly encourages electronic filings. BILLING CODE 6717–01–P FME asserts that, inasmuch as it plans See 18 CFR 385.2001(a)(1)(iii) and the to use the proposed Coden Onshore instructions on the Commission’s Web Pipeline solely to deliver natural gas site under the eLibrary (e-Filing) link. owned by FME on a proprietary basis,
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it requests waiver of the open access applicant, on other pipelines in the area, GTN states that this sheet is being requirements of part 284 of the and on landowners and communities. filed to reflect the continuation of a Commission’s regulations, including, For example, the Commission considers negotiated rate agreement pursuant to but not limited to, cost, accounting, and the extent to which the applicant may evergreen provisions contained in the reporting requirements. need to exercise eminent domain to agreement. GTN requests that the Any questions regarding this obtain rights-of-way for the proposed Commission accept the proposed tariff application should be directed to David project and balances that against the sheet to become effective March 1, 2004. Landry, Vice President—General non-environmental benefits to be GTN further states that a copy of this Manager, Main Pass Energy HubTM, provided by the project. Therefore, if a filing has been served on GTN’s Freeport-McMoRan Energy LLC, 1615 person has comments on community jurisdictional customers and interested Poydras Street, New Orleans, Louisiana and landowner impacts from this state regulatory agencies. 70112, phone (504) 582–4880, or, in the proposal, it is important either to file Any person desiring to be heard or to alternative, David Hunter, Jones Walker comments or to intervene as early in the protest said filing should file a motion LLP, 201 St. Charles Avenue, New process as possible. to intervene or a protest with the Orleans, Louisiana 70170, phone (504) Persons who wish to comment only Federal Energy Regulatory Commission, 582–8366. on the environmental review of this 888 First Street, NE., Washington, DC There are two ways to become project should submit an original and 20426, in accordance with Sections involved in the Commission’s review of two copies of their comments to the 385.214 or 385.211 of the Commission’s this project. First, any person wishing to Secretary of the Commission. Rules and Regulations. All such motions obtain legal status by becoming a party Environmental commenters will be or protests must be filed in accordance to the proceedings for this project placed on the Commission’s with section 154.210 of the should, on or before March 25, 2004, file environmental mailing list, will receive Commission’s Regulations. Protests will with the Federal Energy Regulatory copies of the environmental documents, be considered by the Commission in Commission, 888 First Street, NE., and will be notified of meetings determining the appropriate action to be Washington, DC 20426, a motion to associated with the Commission’s taken, but will not serve to make intervene in accordance with the environmental review process. protestants parties to the proceedings. requirements of the Commission’s rules Environmental commenters will not be Any person wishing to become a party of practice and procedure (18 CFR required to serve copies of filed must file a motion to intervene. This 385.214 or 385.211) and the Regulations documents on all other parties. filing is available for review at the under the NGA (18 CFR 157.10). A However, the non-party commenters Commission in the Public Reference person obtaining party status will be will not receive copies of all documents Room or may be viewed on the placed on the service list maintained by filed by other parties or issued by the Commission’s Web site at http:// the Secretary of the Commission and Commission (except for the mailing of www.ferc.gov using the eLibrary. Enter will receive copies of all documents environmental documents issued by the the docket number excluding the last filed by the applicant and by all other Commission) and will not have the right three digits in the docket number field parties. A party must submit 14 copies to seek court review of the to access the document. For assistance, of filings made with the Commission Commission’s final order. please contact FERC Online Support at and must mail a copy to the applicant Comments, protests and interventions [email protected] or toll- and to every other party in the may be filed electronically via the free at (866) 208–3676, or TTY, contact proceeding. Only parties to the (202) 502–8659. The Commission proceeding can ask for court review of Internet in lieu of paper. See 18 CFR 385.2001(a) (1) (iii) and the instructions strongly encourages electronic filings. Commission orders in the proceeding. See 18 CFR 385.2001(a)(1)(iii) and the However, a person does not have to on the Commission’s Web site under the instructions on the Commission’s Web intervene in order to have comments ‘‘e-Filing’’ link. site under the e-Filing link. considered. The second way to Comment Date: March 25, 2004. participate is by filing with the Magalie R. Salas, Magalie R. Salas, Secretary of the Commission, as soon as Secretary. Secretary. possible, an original and two copies of [FR Doc. E4–534 Filed 3–10–04; 8:45 am] [FR Doc. E4–509 Filed 3–10–04; 8:45 am] comments in support of or in opposition BILLING CODE 6717–01–P to this project. The Commission will BILLING CODE 6717–01–P consider these comments in determining the appropriate action to be DEPARTMENT OF ENERGY DEPARTMENT OF ENERGY taken, but the filing of a comment alone will not serve to make the filer a party Federal Energy Regulatory Federal Energy Regulatory to the proceeding. The Commission’s Commission Commission rules require that persons filing [Docket No. RP04–136–002] comments in opposition to the project [Docket No. RP99–518–056] provide copies of their protests only to Iroquois Gas Transmission System, the party or parties directly involved in Gas Transmission Northwest L.P.; Notice of Compliance Filing the protest. Corporation; Notice of Negotiated The Commission may issue a Rates March 5, 2004. preliminary determination on non- Take notice that on February 19, 2004, environmental issues prior to the March 4, 2004. Iroquois Gas Transmission System, L.P. completion of its review of the Take notice that on February 27, 2004, (Iroquois) tendered for filing the environmental aspects of the project. Gas Transmission Northwest Prepared Supplemental Direct This preliminary determination Corporation (GTN) tendered for filing to Testimony of Kenneth B. Johnston and typically considers such issues as the be part of its FERC Gas Tariff, Third the Prepared Supplemental Direct need for the project and its economic Revised Volume No. 1–A, Sixth Revised Testimony of Scott E. Rupff, which effect on existing customers of the Sheet No. 15. Iroquois states is filed in compliance
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with Ordering Paragraph (B) of the become part of its FERC Gas Tariff, First DEPARTMENT OF ENERGY Commission’s Order issued in the Revised Volume No. 1, the following above-referenced docket on January 30, tariff sheets to become effective April 1, Federal Energy Regulatory 2004. 2004: Commission Iroquois states that Mr. Johnston’s [Docket No. RP04–205–000] supplemental testimony addresses each Second Revised Sheet No. 184 Third Revised Sheet No. 185 of the provisions of 18 CFR 154.202 as Original Sheet No. 185A Northern Border Pipeline Company; they relate to Iroquois’ rate proposal, First Revised Sheet No. 186 Notice of Proposed Changes in FERC and particularly the rates for secondary First Revised Sheet No. 187 Gas Tariff access to the Eastchester expansion. Third Revised Sheet No. 467 Iroquois states that Mr. Rupff’s March 5, 2004. supplemental testimony addresses Northern Border is filing revised tariff Take notice that on March 2, 2004, issues related to priority of service, sheets for the purpose of adding a Buyer Northern Border Pipeline Company (Northern Border) tendered for filing to applicable tariff provisions for Authorized Automatic Term Park/ become part of Northern Border’s FERC Eastchester secondary access service, Lending (ATPL) service option under Gas Tariff, First Revised Volume No. 1, and the revenue impacts of such service. Rate Schedule PAL. Any person desiring to protest said the following tariff sheets to become filing should file a protest with the Northern Border states that copies of effective April 1, 2004: Federal Energy Regulatory Commission, this filing have been sent to all of Seventh Revised Sheet No. 1 888 First Street, NE., Washington, DC Northern Border’s contracted shippers Sixth Revised Sheet No. 212 20426, in accordance with section and interested State regulatory Third Revised Sheet No. 98 385.211 of the Commission’s rules and commissions. Original Sheet No. 193 Tenth Revised Sheet No. 213 regulations. All such protests must be Any person desiring to be heard or to filed on or before the protest date as Original Sheet No. 194 protest said filing should file a motion Original Sheet No. 195 shown below. Protests will be to intervene or a protest with the Fourth Revised Sheet No. 218 considered by the Commission in Federal Energy Regulatory Commission, Original Sheet No. 196 determining the appropriate action to be 888 First Street, NE., Washington, DC Original Sheet No. 197 taken, but will not serve to make 20426, in accordance with sections Original Sheet No. 469 Original Sheet No. 198 protestants parties to the proceedings. 385.214 or 385.211 of the Commission’s This filing is available for review at the Third Revised Sheet No. 204 Rules and Regulations. All such motions Commission in the Public Reference Original Sheet No. 470 or protests must be filed in accordance Room or may be viewed on the Original Sheet No. 204A with section 154.210 of the Original Sheet No. 471 Commission’s Web site at http:// Original Sheet No. 472 www.ferc.gov using the eLibrary link. Commission’s Regulations. Protests will be considered by the Commission in Original Sheet No. 473 Enter the docket number excluding the Sheet Nos. 474–499 last three digits in the docket number determining the appropriate action to be Northern Border states that it is filing field to access the document. taken, but will not serve to make revised tariff sheets for the purpose of Comments, protests and interventions protestants parties to the proceedings. establishing a new Rate Schedule, may be filed electronically via the Any person wishing to become a party referred to as Rate Schedule TPB. Internet in lieu of paper. For assistance, must file a motion to intervene. This Northern Border also states that this rate please contact FERC Online Support at filing is available for review at the schedule is designed to provide a Third [email protected] or toll- Commission in the Public Reference Party Balancing Service to fulfill a need free at (866) 208–3676, or TTY, contact Room or may be viewed on the on Northern Border’s system to assist (202) 502–8659. The Commission Commission’s Web site at http:// customers in accessing balancing strongly encourages electronic filings. www.ferc.gov using the eLibrary. Enter services to meet variable load See 18 CFR 385.2001(a)(1)(iii) and the the docket number excluding the last requirements. instructions on the Commission’s Web three digits in the docket number field Northern Border states that copies of site under the e-Filing link. to access the document. For assistance, this filing have been sent to all of Protest Date: March 12, 2004. please contact FERC Online Support at Northern Border’s contracted shippers Magalie R. Salas, [email protected] or toll- and interested State regulatory Secretary. free at (866) 208–3676, or TTY, contact commissions. [FR Doc. E4–541 Filed 3–10–04; 8:45 am] (202) 502–8659. The Commission Any person desiring to be heard or to strongly encourages electronic filings. protest said filing should file a motion BILLING CODE 6717–01–P See 18 CFR 385.2001(a)(1)(iii) and the to intervene or a protest with the instructions on the Commission’s Web Federal Energy Regulatory Commission, DEPARTMENT OF ENERGY site under the e-Filing link. 888 First Street, NE., Washington, DC 20426, in accordance with sections Federal Energy Regulatory Magalie R. Salas, 385.214 or 385.211 of the Commission’s Commission Secretary. rules and regulations. All such motions [FR Doc. E4–530 Filed 03–10–04; 8:45 am] or protests must be filed in accordance [Docket No. RP04–204–000] BILLING CODE 6717–01–P with section 154.210 of the Northern Border Pipeline Company; Commission’s regulations. Protests will Notice of Tariff Filing be considered by the Commission in determining the appropriate action to be March 4, 2004. taken, but will not serve to make Take notice that on March 2, 2004, protestants parties to the proceedings. Northern Border Pipeline Company Any person wishing to become a party (Northern Border) tendered for filing to must file a motion to intervene. This
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filing is available for review at the www.ferc.gov using the eLibrary link. strongly encourages electronic filings. Commission in the Public Reference Enter the docket number excluding the See, 18 CFR 385.2001(a)(1)(iii) and the Room or may be viewed on the last three digits in the docket number instructions on the Commission’s Web Commission’s Web site at http:// field to access the document. site under the e-Filing link. www.ferc.gov using the eLibrary. Enter Comments, protests and interventions Protest Date: March 12, 2004. the docket number excluding the last may be filed electronically via the Magalie R. Salas, three digits in the docket number field Internet in lieu of paper. For assistance, to access the document. For assistance, please contact FERC Online Support at Secretary. please contact FERC Online Support at [email protected] or toll- [FR Doc. E4–514 Filed 3–10–04; 8:45 am] [email protected] or toll- free at (866) 208–3676, or TTY, contact BILLING CODE 6717–01–P free at (866) 208–3676, or TTY, contact (202) 502–8659. The Commission (202) 502–8659. The Commission strongly encourages electronic filings. DEPARTMENT OF ENERGY strongly encourages electronic filings. See 18 CFR 385.2001(a)(1)(iii) and the See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission’s Web Federal Energy Regulatory instructions on the Commission’s Web site under the e-Filing link. Commission site under the e-Filing link. Protest Date: March 12, 2004. [Docket No. RP04–192–000] Magalie R. Salas, Magalie R. Salas, Secretary. Secretary. Panhandle Eastern Pipe Line [FR Doc. E4–545 Filed 3–10–04; 8:45 am] [FR Doc. E4–515 Filed 3–10–04; 8:45 am] Company, LLC; Notice of Tariff Filing BILLING CODE 6717–01–P BILLING CODE 6717–01–P March 4, 2004. Take notice that on March 1, 2004, DEPARTMENT OF ENERGY DEPARTMENT OF ENERGY Panhandle Eastern Pipe Line Company, LLC (Panhandle) tendered for filing as Federal Energy Regulatory Federal Energy Regulatory part of its FERC Gas Tariff, Second Commission Commission Revised Volume No. 1, the tariff sheets listed on Appendix A attached to the [Docket No. PR03–12–002] [Docket No. RP00–152–003] filing to become effective April 1, 2004. Panhandle states that this filing is Northern Natural Gas Company; Notice Overland Trail Transmission, LLC , made in accordance with section 24 of Compliance Filing Notice of Compliance Filing (Fuel Reimbursement Adjustment) of March 4, 2004. March 4, 2004. the General Terms and Conditions in Take notice that on January 7, 2004, Take notice that on December 15, Panhandle’s FERC Gas Tariff, Second Northern Natural Gas Company 2003, Overland Trail Transmission, LLC Revised Volume No. 1. (Northern), tendered for filing to become (OTTCO) filed a revised Statement of Panhandle further states that copies of part of its FERC Gas Tariff, Fifth Revised Operating Conditions to comply with this filing are being served on all Volume No. 1, the following tariff sheet: the Commission’s November 14, 2003 affected customers and applicable State Letter Order approving OTTCO’s regulatory agencies. Seventh Revised Sheet No. 303 Settlement Agreement which was filed Any person desiring to be heard or to Northern states that the revised tariff on October 17, 2003. protest said filing should file a motion sheet is being filed to comply with the Any person desiring to protest said to intervene or a protest with the Commission’s December 18, 2003, Order filing should file a protest with the Federal Energy Regulatory Commission, on Remand in this docket approving Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC Northern’s filing to include indexed- 888 First Street, NE., Washington, DC 20426, in accordance with sections based rates that are capped by 20426, in accordance with section 385.214 or 385.211 of the Commission’s Northern’s maximum tariff rates, as a 385.211 of the Commission’s Rules and Rules and Regulations. All such motions permissible type of discounted rate. Regulations. All such protests must be or protests must be filed in accordance Northern further states that copies of filed on or before the protest date as with section 154.210 of the the filing have been mailed to each of shown below. Protests will be Commission’s Regulations. Protests will its customers and interested State considered by the Commission in be considered by the Commission in Commissions. determining the appropriate action to be determining the appropriate action to be Any person desiring to protest said taken, but will not serve to make taken, but will not serve to make filing should file a protest with the protestants parties to the proceedings. protestants parties to the proceedings. Federal Energy Regulatory Commission, This filing is available for review at the Any person wishing to become a party 888 First Street, NE., Washington, DC Commission in the Public Reference must file a motion to intervene. This 20426, in accordance with section Room or may be viewed on the filing is available for review at the 385.211 of the Commission’s rules and Commission’s Web site at http:// Commission in the Public Reference regulations. All such protests must be www.ferc.gov using the eLibrary link. Room or may be viewed on the filed on or before the protest date as Enter the docket number excluding the Commission’s Web site at http:// shown below. Protests will be last three digits in the docket number www.ferc.gov using the eLibrary. Enter considered by the Commission in field to access the document. the docket number excluding the last determining the appropriate action to be Comments, protests and interventions three digits in the docket number field taken, but will not serve to make may be filed electronically via the to access the document. For assistance, protestants parties to the proceedings. Internet in lieu of paper. For assistance, please contact FERC Online Support at This filing is available for review at the please contact FERC Online Support at [email protected] or toll- Commission in the Public Reference [email protected] or toll- free at (866) 208–3676, or TTY, contact Room or may be viewed on the free at (866) 208–3676, or TTY, contact (202) 502–8659. The Commission Commission’s Web site at http:// (202) 502–8659. The Commission strongly encourages electronic filings.
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See, 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission’s Web (202) 502–8659. The Commission instructions on the Commission’s web site under the e-Filing link. strongly encourages electronic filings. site under the e-Filing link. See 18 CFR 385.2001(a)(1)(iii) and the Magalie R. Salas, instructions on the Commission’s Web Magalie R. Salas, Secretary. site under the e-Filing link. Secretary. [FR Doc. E4–519 Filed 3–10–04; 8:45 am] [FR Doc. E4–521 Filed 3–10–04; 8:45 am] BILLING CODE 6717–01–P Magalie R. Salas, BILLING CODE 6717–01–P Secretary. [FR Doc. E4–520 Filed 3–10–04; 8:45 am] DEPARTMENT OF ENERGY BILLING CODE 6717–01–P DEPARTMENT OF ENERGY Federal Energy Regulatory Federal Energy Regulatory Commission DEPARTMENT OF ENERGY Commission [Docket No. RP04–191–000] Federal Energy Regulatory [Docket No. RP04–190–000] Transcontinental Gas Pipe Line Commission Southwest Gas Storage Company; Corporation; Notice of Tariff Filing [Docket No. RP04–200–000] Notice of Proposed Changes in FERC Gas Tariff March 4, 2004. Transcontinental Gas Pipe Line Take notice that on March 1, 2004, Corporation; Notice of Proposed March 4, 2004. Transcontinental Gas Pipe Line Changes in FERC Gas Tariff Take notice that on March 1, 2004, Corporation (Transco) tendered for Southwest Gas Storage Company filing as part of its FERC Gas Tariff, March 5, 2004. (Southwest) tendered for filing as part of Third Revised Volume No. 1, the tariff Take notice that on March 1, 2004, its FERC Gas Tariff, First Revised sheets listed in Appendix A attached to transcontinental Gas Pipe Line Volume No. 1, Tenth Revised Sheet No. the filing. The proposed effective date of Corporation (Transco) tendered for 5, proposed to become effective April 1, the revised sheets is April 1, 2004. filing as part of its FERC Gas Tariff, 2004. Transco states that the purpose of the Third Revised Volume No. 1, the tariff Southwest states that this filing is instant filing is to recalculate its fuel sheets listed in Appendix A attached to made in accordance with section 16 retention percentages applicable to the filing, to become effective April 1, (Fuel Reimbursement Adjustment) of transportation and storage rate 2004. the General Terms and Conditions in schedules pursuant to section 38 of the Transco states that the instant filing is Southwest’s FERC Gas Tariff, First General Terms and Conditions of submitted pursuant to section 41 of the Revised Volume No. 1. Transco’s FERC Gas Tariff. Transco General Terms and Conditions of Southwest further states copies of this states that Appendix B attached to the Transco’s FERC Gas Tariff which filing are being served on all affected filing contains workpapers supporting provides that Transco will file to reflect customers and applicable State the derivation of the revised fuel net changes in the Transmission Electric regulatory agencies. retention percentages. Power (TEP) rates at least 30 days prior Any person desiring to be heard or to Transco states that copies of the filing to each TEP Annual Period beginning protest said filing should file a motion are being mailed to affected customers April 1. Transco states that Attached in to intervene or a protest with the and interested State commissions. Appendix B to the filing are workpapers Federal Energy Regulatory Commission, Any person desiring to be heard or to supporting the derivation of the revised 888 First Street, NE., Washington, DC protest said filing should file a motion TEP rates reflected on the tariff sheets 20426, in accordance with sections to intervene or a protest with the included therein. 385.214 or 385.211 of the Commission’s Federal Energy Regulatory Commission, Transco states that it is serving copies rules and regulations. All such motions 888 First Street, NE., Washington, DC of the instant filing to its affected or protests must be filed in accordance 20426, in accordance with sections customers, interested state commissions with section 154.210 of the 385.214 or 385.211 of the Commission’s and other interested parties. Commission’s regulations. Protests will rules and regulations. All such motions Any person desiring to be heard or to be considered by the Commission in or protests must be filed in accordance protest said filing should file a motion determining the appropriate action to be with section 154.210 of the to intervene or a protest with the taken, but will not serve to make Commission’s regulations. Protests will Federal Energy Regulatory Commission, protestants parties to the proceedings. be considered by the Commission in 888 First Street, NE., Washington, DC Any person wishing to become a party determining the appropriate action to be 20426, in accordance with sections must file a motion to intervene. This taken, but will not serve to make 385.214 or 385.211 of the Commission’s filing is available for review at the protestants parties to the proceedings. rules and regulations. All such motions Commission in the Public Reference Any person wishing to become a party or protests must be filed in accordance Room or may be viewed on the must file a motion to intervene. This with section 154.210 of the Commission’s Web site at http:// filing is available for review at the Commission’s regulations. Protests will www.ferc.gov using the eLibrary. Enter Commission in the Public Reference be considered by the Commission in the docket number excluding the last Room or may be viewed on the determining the appropriate action to be three digits in the docket number field Commission’s Web site at http:// taken, but will not serve to make to access the document. For assistance, www.ferc.gov using the eLibrary. Enter protestants parties to the proceedings. please contact FERC Online Support at the docket number excluding the last Any person wishing to become a party [email protected] or toll- three digits in the docket number field must file a motion to intervene. This free at (866) 208–3676, or TTY, contact to access the document. For assistance, filing is available for review at the (202) 502–8659. The Commission please contact FERC Online Support at Commission in the Public Reference strongly encourages electronic filings. [email protected] or toll- Room or may be viewed on the See 18 CFR 385.2001(a)(1)(iii) and the free at (866) 208–3676, or TTY, contact Commission’s Web site at http://
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www.ferc.gov using the eLibrary. Enter three digits in the docket number field Rules and Regulations. All such motions the docket number excluding the last to access the document. For assistance, or protests must be filed in accordance three digits in the docket number field please contact FERC Online Support at with section 154.210 of the to access the document. For assistance, [email protected] or toll- Commission’s Regulations. Protests will please contact FERC Online Support at free at (866) 208–3676, or TTY, contact be considered by the Commission in [email protected] toll-free (202) 502–8659. The Commission determining the appropriate action to be at (866) 208–3676, or TTY, contact (202) strongly encourages electronic filings. taken, but will not serve to make 502–8659. The Commission strongly See, 18 CFR 385.2001(a)(1)(iii) and the protestants parties to the proceedings. encourages electronic filings. See 18 instructions on the Commission’s Web Any person wishing to become a party CFR 385.2001(a)(1)(iii) and the site under the e-Filing link. must file a motion to intervene. This instructions on the Commission’s Web filing is available for review at the Magalie R. Salas, site under the e-Filing link. Commission in the Public Reference Secretary. Room or may be viewed on the Magalie R. Salas, [FR Doc. E4–522 Filed 3–10–04; 8:45 am] Commission’s Web site at http:// Secretary. BILLING CODE 6717–01–P www.ferc.gov using the eLibrary. Enter [FR Doc. E4–543 Filed 3–10–04; 8:45 am] the docket number excluding the last BILLING CODE 6717–01–P three digits in the docket number field DEPARTMENT OF ENERGY to access the document. For assistance, please contact FERC Online Support at DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [email protected] or toll- Federal Energy Regulatory free at (866) 208–3676, or TTY, contact [Docket No. RP04–199–000] Commission (202) 502–8659. The Commission strongly encourages electronic filings. [Docket No. RP04–193–000] Williston Basin Interstate Pipeline See 18 CFR 385.2001(a)(1)(iii) and the Company; Notice of Fuel and Electric instructions on the Commission’s Web Trunkline Gas Company, LLC; Notice Power Reimbursement Filing site under the e-Filing link. of Proposed Changes in FERC Gas Tariff March 4, 2004. Magalie R. Salas, Take notice that on March 1, 2004, Secretary. March 4, 2004. Williston Basin Interstate Pipeline [FR Doc. E4–527 Filed 3–10–04; 8:45 am] Take notice that on March 1, 2004, Company (Williston Basin), tendered for BILLING CODE 6717–01–P Trunkline Gas Company, LLC filing as part of its FERC Gas Tariff, (Trunkline) tendered for filing as part of Second Revised Volume No. 1 and its FERC Gas Tariff, Third Revised Original Volume No. 2, the following DEPARTMENT OF ENERGY Volume No. 1, the tariff sheets listed in revised tariff sheets to become effective Appendix A attached to the filing, to April 1, 2004. Federal Energy Regulatory become effective April 1, 2004. Second Revised Volume No. 1 Commission Trunkline states that this filing is being Fifty-fourth Revised Sheet No. 15 made in accordance with section 22 [Docket No. EC04–70–000, et al.] (Fuel Reimbursement Adjustment) of Thirtieth Revised Sheet No. 15A Fifty-fourth Revised Sheet No. 16 Trunkline’s FERC Gas Tariff, Third Thirtieth Revised Sheet No. 16A Black River Power, LLC, et al.; Electric Revised Volume No. 1. Fifty-second Revised Sheet No. 18 Rate and Corporate Filings Trunkline states that copies of this Thirtieth Revised Sheet No. 18A filing are being served on all affected Thirtieth Revised Sheet No. 19 March 4, 2004. shippers and interested State regulatory Thirtieth Revised Sheet No. 20 The following filings have been made with the Commission. The filings are agencies. Original Volume No. 2 Any person desiring to be heard or to listed in ascending order within each protest said filing should file a motion Ninety-eighth Revised Sheet No. 11B docket classification. to intervene or a protest with the Williston Basin states that the revised 1. Black River Power, LLC, Black River Federal Energy Regulatory Commission, tariff sheets reflect revisions to the Generation, LLC, Energy Investors 888 First Street, NE., Washington, DC Company’s fuel reimbursement Funds Group, LLC 20426, in accordance with sections percentages for gathering, storage and 385.214 or 385.211 of the Commission’s transportation services, and to the [Docket No. EC04–70–000] Rules and Regulations. All such motions Company’s electric power Take notice that on March 2, 2004, or protests must be filed in accordance reimbursement rates for storage and Black River Power, LLC (Black River), with section 154.210 of the transportation services, pursuant to Black River Generation, LLC and Energy Commission’s Regulations. Protests will Williston Basin’s Fuel and Electric Investors Funds Group, LLC filed with be considered by the Commission in Power Reimbursement Adjustment the Federal Energy Regulatory determining the appropriate action to be Provision contained in section 38 of the Commission an application pursuant to taken, but will not serve to make General Terms and Conditions of its section 203 of the Federal Power Act, 16 protestants parties to the proceedings. FERC Gas Tariff, Second Revised U.S.C. 824b, and part 33 of the Any person wishing to become a party Volume No. 1. Commission’s regulations, 18 CFR part must file a motion to intervene. This Any person desiring to be heard or to 33, for authorization of a disposition of filing is available for review at the protest said filing should file a motion certain jurisdictional facilities held by Commission in the Public Reference to intervene or a protest with the Black River to EIF Hamakua LLC. Room or may be viewed on the Federal Energy Regulatory Commission, Black River states that a copy of the Commission’s Web site at http:// 888 First Street, NE., Washington, DC application was served upon the Public www.ferc.gov using the eLibrary. Enter 20426, in accordance with sections Service Commission of New York. the docket number excluding the last 385.214 or 385.211 of the Commission’s Comment Date: March 23, 2004.
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2. Lima Energy Company customers that are not Participants in Ridgewood Maine Hydro Partners, L.P. [Docket No. EG04–37–000] the New England Power Pool. In (Ridgewood Maine); and (2) to terminate addition, ISO states that each of the the memberships of Indeck-Pepperell Take notice that on March 3, 2004, NEPOOL Participants Committee Power Associates, Inc. (Indeck- Lima Energy Company (LEC) filed an Members is being served with an Pepperell) and RWE Trading Americas, Application for Determination of electronic copy of the compliance filing. Inc. (RWE Trading). The Participants Exempt Wholesale Generator Status Comment Date: March 22, 2004. Committee requests the following pursuant to section 32(a)(1) of the effective dates: February 1, 2004 for the Public Utility Holding Company Act of 7. Midwest Independent Transmission termination of Indeck-Pepperell and 1935, all as more fully explained in the System Operator, Inc. RWE Trading; March 1, 2004 for the Application. [Docket No. ER03–1312–003] commencement of participation in Comment Date: March 24, 2004. Take notice that on March 1, 2004, the NEPOOL by Ridgewood Maine; and 3. Pepco Energy Services, Inc., Potomac Midwest Independent Transmission May 1, 2004 for commencement of Power Resources, LLC System Operator, Inc. (Midwest ISO) participation in NEPOOL by Linde Gas. [Docket Nos. ER98–3096–008 and ER01–202– submitted for filing Schedule 20 The Participants Committee states 001] (Treatment of Station Power) of its Open that copies of these materials were sent Take notice that on March 1, 2004, Access Transmission Tariff, FERC to the New England state governors and Pepco Energy Services, Inc. and Electric Tariff, Second Revised Volume regulatory commissions and the Potomac Power Resources, LLC No. 1, in compliance with the Participants in NEPOOL. submitted for filing a triennial market Commission’s Order, Midwest Comment Date: March 22, 2004. power update pursuant to the Independent Transmission System 10. PPL Electric Utilities Corporation Commission orders issued granting Operator, Inc., 106 FERC ¶ 61,073 [Docket No. ER04–602–000] them market-based rate authorizations (2004). issued July 16, 1998 in Docket No. Midwest ISO states that it has Take notice that on March 1, 2004, ER98–3096–000 and December 13, 2000 electronically served a copy of this PPL Electric Utilities Corporation (PPL in Docket No. ER01–202–000. filing, with attachments, upon all Electric) filed a notice of termination of Comment Date: March 22, 2004. Midwest ISO Members, Member 30 Power Supply Agreements between it representatives of Transmission Owners and various Pennsylvania Boroughs. 4. North Central Missouri Electric and Non-Transmission Owners, the PPL Electric states that the Power Cooperative, Inc. Midwest ISO Advisory Committee Supply Agreements terminated by their [Docket No. ER02–2001–000] participants, as well as all state own terms on February 1, 2004. Take notice that on February 17, 2004, commissions within the region. In PPL Electric states that it has served North Central Missouri Electric addition, Midwest states that the filing a copy of the notice of termination of on Cooperative, Inc. filed a Request for has been posted on the Midwest ISO’s each of the customers named in the Waiver of Order No. 2001 Electric website and will provide hard copies agreements. Quarterly Report Requirements. upon request. Comment Date: March 22, 2004. Comment Date: March 19, 2004. Comment Date: March 24, 2004. 11. American Electric Power Service 5. PJM Interconnection, L.L.C. 8. Pacific Gas and Electric Company Corporation [Docket No. ER03–406–005] [Docket No. ER04–337–003] [Docket No. ER04–603–000] Take notice that on March 1, 2004, Take notice that on March 1, 2004, Take notice that on March 1, 2004, PJM Interconnection, L.L.C. (PJM) Pacific Gas and Electric Company American Electric Power Service submitted for filing a revision to its (PG&E) made an additional filing related Corporation, (AEP) as agent for the February 27, 2004 compliance filing in to its Annual Balancing Account Update Operating Companies of the American Docket No. ER03–406–004. Filing, in Docket No. ER04–337–000. Electric Power System (collectively PJM states that it has served a copy of PG&E states that copies of this filing AEP) tendered for filing with the this filing upon all PJM members, the have been served upon the California Commission an Agreement on Operating utility regulatory commissions in the Independent System Operator and Business Practices to Implement PJM region, and all persons on the Corporation (ISO), Scheduling Generation Transfer Pathway between Commission’s service list in this Coordinators registered with the ISO, AEP and PJM Interconnection, LLC proceeding. Southern California Edison Company, (PJM). AEP requests an effective date Comment Date: March 22, 2004. San Diego Gas & Electric Company, the when PJM notifies AEP, at least 30 days California Public Utilities Commission prior to the date that the integration of 6. Devon Power LLC, et al. and other parties to the official service Commonwealth Edison Company [Docket No. ER03–563–030] lists in this docket and recent TO Tariff (ComEd) into PJM’s economic dispatch Take notice that on March 1, 2004, rate cases, FERC Docket Nos. ER01– will commence. ISO New England Inc. (ISO), submitted 1639–000, ER03–409–000 and ER04– AEP states that a copy of the filing a compliance filing reflecting a 109–000. was served upon AEP’s transmission comprehensive locational capacity Comment Date: March 22, 2004. service customers, PJM, ComEd and the state regulatory commissions exercising proposal for New England pursuant to 9. New England Power Pool the Commission’s Order issued April jurisdiction over affected AEP 25, 2003, 103 FERC ¶61,082 at P 37. [Docket No. ER04–601–000] Companies. ISO states that copies of the Take notice that on March 1, 2004, the Comment Date: March 22, 2004. compliance filing have been served on New England Power Pool (NEPOOL) 12. Portland General Electric Company all parties to the above-captioned Participants Committee filed for proceeding, as well as the Governors acceptance materials to (1) permit [Docket No. ER04–604–000] and utility regulators of New England, NEPOOL to expand its membership to Take notice that on March 1, 2004, and the New England transmission include Linde Gas LLC (Linde Gas) and Portland General Electric Company
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(PGE) tendered for filing revised tariff Comment Date: March 22, 2004. Edison and International Transmission sheets to PGE’s FERC Electric Tariff, Company (ITC) which seeks to extend Standard Paragraph Original Volume No. 12. PGE states that on a limited basis the Service Level the revisions are intended to bring Any person desiring to intervene or to Agreement (C&M Service Agreement)— PGE’s Form of Umbrella Service protest this filing should file with the Construction and Maintenance/ Agreement into conformance with Federal Energy Regulatory Commission, Engineering/System Operations, dated current business practices. 888 First Street, NE., Washington, DC February 28, 2003. Detroit Edison states PGE states that a copy of the filing 20426, in accordance with Rules 211 that it has entered into the Letter was served upon the Oregon Public and 214 of the Commission’s Rules of Agreement in order to ensure that ITC Utility Commission. Practice and Procedure (18 CFR 385.211 will continue to have the necessary staff Comment Date: March 22, 2004. and 385.214). Protests will be and resources to reliably operate its 13. Ameren Services Company considered by the Commission in jurisdictional transmission facilities determining the appropriate action to be located in southeastern Michigan until [Docket No. ER04–605–000] taken, but will not serve to make such time that it completes its transition Take notice that on March 1, 2004, protestants parties to the proceeding. to full operational independence. Ameren Services Company (ASC) Any person wishing to become a party Comment Date: March 19, 2004. tendered for filing an executed Network must file a motion to intervene. All such Integration Transmission Service and motions or protests should be filed on 2. PJM Interconnection, L.L.C. Network Operating Agreement between or before the comment date, and, to the [Docket No. ER03–406–004] ASC and Clay Electric Cooperative, Inc. extent applicable, must be served on the ASC states that the purpose of the applicant and on any other person Take notice that on February 27, 2003, Agreements is to permit ASC to provide designated on the official service list. PJM Interconnection, L.L.C. (PJM) transmission service to Clay Electric This filing is available for review at the submitted revisions to the PJM Open Cooperative, Inc., pursuant to Ameren’s Commission or may be viewed on the Access Transmission Tariff and the Open Access Transmission Tariff. Commission’s Web site at http:// Amended and Restated Operating Comment Date: March 22, 2004. www.ferc.gov, using the ‘‘FERRIS’’ link. Agreement of PJM Interconnection, 14. Wisconsin Electric Power Company Enter the docket number excluding the L.L.C. to address credit requirements for last three digits in the docket number conversion of auction revenue rights to [Docket No. ER04–607–000] filed to access the document. For financial transmission rights (FTRs), Take notice that on March 1, 2004, assistance, call (202) 502–8222 or TTY, and the initial allocation of FTRs in new Wisconsin Electric Power Company (202) 502–8659. Protests and zones. PJM states that it proposes an (Wisconsin Electric), on behalf of the interventions may be filed electronically effective date of February 28, 2004 for Wisconsin Energy Corporation via the Internet in lieu of paper; see 18 the proposed revisions. Operating Companies (WEC Operating CFR 385.2001(a)(1)(iii) and the Companies), tendered for filing PJM states that copies of the filing instructions on the Commission’s Web were served on all PJM members, the revisions to the WEC Operating site under the ‘‘e-Filing’’ link. The Companies Joint Ancillary Services utility regulatory commissions in the Commission strongly encourages PJM region, and all persons on the Tariff, FERC Electric Tariff, Original electronic filings. Volume No. 2, wherein the WEC Commission’s service list for this Operating Companies propose to Magalie R. Salas, proceeding. implement a Generator Imbalance Secretary. Comment Date: March 19, 2004. Service and make conforming changes [FR Doc. E4–535 Filed 03–10–04; 8:45 am] 3. American Home Energy Corporation to its Joint Ancillary Services Tariff. BILLING CODE 6717–01–P WEC Operating Companies request an [Docket No. ER04–590–000] effective date of April 1, 2004. Comment Date: March 22, 2004. DEPARTMENT OF ENERGY Take notice that on February 27, 2004 American Home Energy Corporation, 15. PJM Interconnection, L.L.C. Federal Energy Regulatory tendered for filing a Notice of [Docket No. ER04–608–000] Commission Cancellation of their market-based rate authority in Docket No. ER98–1903–000 Take notice that on March 1, 2004, [Docket No. ER03–343–004, et al.] PJM Interconnection, L.L.C. (PJM), to be effective immediately. submitted for filing revisions to the PJM ITC Holdings Corp., et al.; Electric Rate Comment Date: March 19, 2004. Open Access Transmission Tariff, the and Corporate Filings Amended and Restated Operating 4. Southern Company Services, Inc. Agreement of PJM Interconnection, March 3, 2004. [Docket No. ER04–591–000] L.L.C., the Reliability Assurance The following filings have been made Agreement Among Load Serving with the Commission. The filings are Take notice that on February 27, 2004, Entities In The MAAC Control Zone, listed in ascending order within each Southern Company Services, Inc. (SCS), and the PJM West Reliability Assurance docket classification. on behalf of Alabama Power Company, Agreement Among Load Serving Georgia Power Company, Mississippi 1. ITC Holdings Corp., et al.; The Power Company, Gulf Power Company Entities In The PJM West Region to Detroit Edison Company implement market rules for behind the and Savannah Electric and Power meter generation. PJM requests an [Docket Nos. ER03–343–004; ER03–576–002] Company, tendered for filing effective date of June 1, 2004 for the Take notice that on February 27, 2004, amendments to unit power sales amendments. The Detroit Edison Company (Detroit agreements with Florida Power and PJM states that copies of this filing Edison) tendered for filing with the Light Company, Florida Power have been served on all PJM members, Commission a letter agreement and Corporation and Jacksonville Electric and each state electric utility regulatory accompanying schedule (collectively, Authority. commission in the PJM region. the Letter Agreement) between Detroit Comment Date: March 19, 2004.
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5. Ocean State Power II addition, ComEd submitted for filing a ComEd submitted for filing a notice of [Docket No. ER04–592–000] Notice of Cancellation of FERC Rate cancellation of FERC Rate Schedule No. Schedule No. 54. 47. Take notice that on February 27, 2004, Comment Date: March 19, 2004. Comment Date: March 19, 2004. Ocean State Power II (Ocean State II) tendered for filing revised pages to Rate 9. Commonwealth Edison Company 13. Carolina Power & Light Company Schedule FERC Nos. 5–8, which update [Docket No. ER04–96–000] [Docket No. ER04–600–000] Ocean State II’s rate of return on equity Take notice that on February 27, 2004 with respect to such rate schedules. Take notice that on February 27, 2004, Commonwealth Edison Company Ocean State II requests an effective date Progress Energy, Inc. (Progress Energy) (ComEd) submitted for filing an for the rate schedule changes of April on behalf of its subsidiary Carolina unexecuted Amended Interconnection 27, 2004. Power & Light Company (CP&L) d/b/a Ocean State II states that copies of the Agreement (IA) between ComEd and Progress Energy Carolinas, Inc., Supplements have been served upon, Allegheny Energy Supply Lincoln tendered for filing a Service Agreement Ocean State II’s power purchasers, the Generating Facility, LLC (previously Des for Network Integration Transmission Commonwealth of Massachusetts Plaines Green Land Development, LLC) Service and a Network Operating Department of Telecommunications and (Allegheny) designated as FERC Electric Agreement with French Broad Electric Energy, and the Rhode Island Public Tariff, Second Revised Volume No. 5, Membership Corporation. CP&L is Utilities Commission. Original Service Agreement No. 765. In requesting an effective date of February Comment Date: March 19, 2004. addition, ComEd submitted for filing a 1, 2004. notice of cancellation of FERC Rate Progress Energy states that a copy of 6. Ocean State Power Schedule No. 55. the filing was served upon the North [Docket No. ER04–593–000] Comment Date: March 19, 2004. Carolina Utilities Commission and the Take notice that on February 27, 2004, 10. Commonwealth Edison Company South Carolina Public Service Ocean State Power (Ocean State) Commission. tendered for filing revised pages to Rate [Docket No. ER04–597–000] Comment Date: March 19, 2004. Take notice that on February 27, 2004, Schedule FERC Nos. 1–4, which update 14. Commonwealth Edison Company Ocean State’s rate of return on equity Commonwealth Edison Company with respect to such rate schedules. (ComEd) submitted for filing an [Docket No. ER04–606–000] Ocean State requests an effective date unexecuted Amended Interconnection Take notice that on February 27, 2004, for the rate schedule changes of April Agreement between ComEd and LSP- Commonwealth Edison Company 27, 2004. Kendall Energy, LLC (LSP-Kendall) (ComEd) tendered for filing with the Ocean state states that copies of the designated as FERC Electric Tariff, Federal Energy Regulatory Commission Supplements have been served upon, Second Revised Volume No. 5, Original (Commission) amendments to Ocean State’s power purchasers, the Service Agreement No. 762. In addition, Interconnection Agreements entered Commonwealth of Massachusetts ComEd submitted for filing a notice of into between ComEd and Midwest Department of Telecommunications and cancellation of FERC Rate Schedule No. Generation, LLC (MWGen) designated as Energy, and the Rhode Island Public 52. FERC Electric Tariff, Second Revised Utilities Commission. Comment Date: March 19, 2004. Volume No. 5, Original Service Comment Date: March 19, 2004. 11. PJM Interconnection, L.L.C. Agreements 749 through 761. In addition, ComEd submitted for filing a 7. Commonwealth Edison Company [Docket No. ER04–598–000] Notice of Cancellation of FERC Rate [Docket No. ER04–594–000] Take notice that on February 27, 2004, Schedule Nos. 49, 50 and 51. ComEd Take notice that on February 27, 2004, PJM Interconnection, L.L.C. (PJM), requests an April 27, 2004 effective date Commonwealth Edison Company submitted for filing revisions to for the Service Agreements and (ComEd) submitted for filing five Schedule 6A (Black Start Service) of the cancellation of the Rate Schedules. unexecuted Service Agreements entered PJM Open Access Transmission Tariff to ComEd states that copies of the filing into between ComEd and Edison permit more flexibility in the recovery were served on MWGen and the Illinois Mission Marketing & Trading Inc. of fixed costs associated with providing Commerce Commission. (EMMT) under ComEd’s Open Access black start service. PJM requests an Comment Date: March 19, 2004. Transmission Tariff. ComEd requests an effective date of April 28, 2004 for the 15. Douglas R. Oberhelman effective date of April 1, 2004 for all of amendment. the Service Agreements. PJM states that copies of this filing [Docket No. ID–3998–000] ComEd states that copies of the filing have been served on all PJM members, Take notice that on February 17, 2004, were served upon EMMT and the and each state electric utility regulatory Douglas R. Oberhelman (Applicant) Illinois Commerce Commission. commission in the PJM region. filed, pursuant to the provisions of Comment Date: March 19, 2004. Comment Date: March 19, 2004. Section 305(b) of the Federal Power Act 8. Commonwealth Edison Company 12. Commonwealth Edison Company 16 U.S.C. 825d(b), and Part 45 of the Regulations of the Federal Energy [Docket No. ER04–595–000] [Docket No. ER04–599–000] Regulatory Commission, under, 18 CFR Take notice that on February 27, 2004 Take notice that on February 27, 2004, part 45, for authorization to hold Commonwealth Edison Company Commonwealth Edison Company interlocking positions. (ComEd) submitted for filing an (ComEd) submitted for filing an Comment Date: March 17, 2004. unexecuted Amended Interconnection executed Amended Interconnection Agreement (IA) between ComEd and Agreement (IA) between ComEd and Standard Paragraph Cordova Energy Company LLC Elwood Energy LLC (Elwood) Any person desiring to intervene or to (Cordova) designated as FERC Electric designated as FERC Electric Tariff, protest this filing should file with the Tariff, Second Revised Volume No. 5, Second Revised Volume No. 5, Original Federal Energy Regulatory Commission, Original Service Agreement No. 764. In Service Agreement No. 763. In addition, 888 First Street, NE., Washington, DC
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20426, in accordance with rules 211 and authorized for construction and Please note that we are continuing to 214 of the Commission’s Rules of operation by the Virginia State experience delays in mail deliveries Practice and Procedure (18 CFR 385.211 Corporation Commission in Smyth and from the U.S. Postal Service. As a result, and 385.214). Protests will be Washington Counties, Virginia. Saltville we will include all comments that we considered by the Commission in has received all necessary state receive within a reasonable time frame determining the appropriate action to be regulatory approvals to construct and in our environmental analysis of this taken, but will not serve to make operate the storage facility. See project. However, the Commission protestants parties to the proceeding. Appendix 1 for a list of the facilities and strongly encourages electronic filing of Any person wishing to become a party their construction status. The EA any comments or interventions or must file a motion to intervene. All such focuses its analysis on the facilities that protests to this proceeding. See 18 CFR motions or protests should be filed on still need to be constructed, on 385.2001(a)(1)(iii) and the instructions or before the comment date, and, to the restoration of the areas previously on the Commission’s Web site at extent applicable, must be served on the disturbed or currently being disturbed http://www.ferc.gov under the ‘‘e- applicant and on any other person by on-going construction activities, and Filing’’ link and the link to the User’s designated on the official service list. on the operation of the existing Guide. Before you can file comments This filing is available for review at the facilities. you will need to create a free account Commission or may be viewed on the The purpose of the proposed storage which can be created by clicking on Commission’s Web site at http:// field would be to provide about 8.2 ‘‘Sign-up.’’ www.ferc.gov, using the ‘‘FERRIS’’ link. billion cubic feet of working gas Comments will be considered by the Enter the docket number excluding the capacity with an estimated maximum Commission but will not serve to make last three digits in the docket number withdrawal rate of 550,000 thousand the commentor a party to the filed to access the document. For cubic feet per day (Mcfd) of gas and an proceeding. Any person seeking to assistance, call (202) 502–8222 or TTY, estimated maximum injection rate of become a party to the proceeding must (202) 502–8659. Protests and 220,000 Mcfd. The storage field is file a motion to intervene pursuant to interventions may be filed electronically interconnected with the transmission Rule 214 of the Commission’s Rules of via the Internet in lieu of paper; see 18 systems of Virginia Gas Pipeline Practice and Procedures (18 CFR CFR 385.2001(a)(1)(iii) and the Company, an intrastate company, and 385.214).1 Only intervenors have the instructions on the Commission’s Web East Tennessee Natural Gas Company, right to seek rehearing of the site under the ‘‘e-Filing’’ link. The an interstate company. Commission’s decision. Commission strongly encourages The EA has been placed in the public Affected landowners and parties with electronic filings. files of the FERC. A limited number of environmental concerns may be granted copies of the EA are available for intervenor status upon showing good Magalie R. Salas, distribution and public inspection at: cause by stating that they have a clear Secretary. Federal Energy Regulatory Commission, and direct interest in this proceeding [FR Doc. E4–536 Filed 3–10–04; 8:45 a.m.] Public Reference Room, 888 First Street, which would not be adequately BILLING CODE 6717–01–P NE., Room 2A, Washington, DC 20426, represented by any other parties. You do (202) 502–8371. not need intervenor status to have your Copies of the EA have been mailed to comments considered. DEPARTMENT OF ENERGY Federal, State and local agencies, and Additional information about the stakeholders that responded to our project is available from the Federal Energy Regulatory Commission’s Office of External Affairs, Commission December 15, 2003, Notice of Intent to prepare an Environmental Assessment at 1–866–208–FERC (1–866–208–3372) [Docket No. CP04–13–000] for the Proposed Saltville Storage or on the FERC Internet Web site Project and Request for Comments on (www.ferc.gov) using the eLibrary link. Saltville Gas Storage Company, L.L.C.; Environmental Issues, and parties to Click on the eLibrary link, click on Notice of Availability of the this proceeding. ‘‘General Search’’ and enter the docket Environmental Assessment for the Any person wishing to comment on number excluding the last three digits in Proposed Saltville Storage Project the EA may do so. To ensure the Docket Number field. Be sure you have selected an appropriate date range. March 5, 2004. consideration prior to a Commission decision on the proposal, it is important For assistance with eLibrary, the The staff of the Federal Energy eLibrary helpline can be reached at 1– Regulatory Commission (FERC or that we receive your comments before the date specified below. Please 866–208–3676, TTY (202) 502–8659 or Commission) has prepared an at [email protected]. The environmental assessment (EA) on the carefully follow these instructions to ensure that your comments are received eLibrary link on the FERC Internet Web natural gas pipeline facilities proposed site also provides access to the texts of by Saltville Gas Storage Company, in time and properly recorded: • Send an original and two copies of formal documents issued by the L.L.C. (Saltville) in the above-referenced Commission, such as orders, notices, docket. The EA was prepared to satisfy your comments to: Magalie R. Salas, Secretary, Federal Energy Regulatory and rulemakings. the requirements of the National In addition, the Commission now Commission, 888 First St., NE., Room Environmental Policy Act. The staff offers a free service called eSubscription 1A, Washington, DC 20426; concludes that approval of the proposed which allows you to keep track of all • Label one copy of the comments for project, with appropriate mitigating formal issuances and submittals in the attention of the Gas Branch 2, measures, would not constitute a major specific dockets. This can reduce the PJ11.2. Federal action significantly affecting the amount of time you spend researching • Reference Docket No. CP04–13– quality of the human environment. proceedings by automatically providing Saltville is currently developing a 000; and • new 8.2 billion cubic foot, underground Mail your comments so that they 1 Interventions may also be filed electronically via natural gas storage facility using existing will be received in Washington, DC on the Internet in lieu of paper. See the previous salt caverns that were previously or before April 5, 2004. discussion on filing comments electronically.
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you with notification of these filings, site at http://www.ferc.gov. Please protests, or motions to intervene must document summaries and direct links to include the docket number (DI04–4– be received on or before the specified the documents. Go to www.ferc.gov, 000) on any comments or motions filed. comment date for the particular click on ‘‘eSubscription’’ and then click k. Description of Project: The application. on ‘‘Sign-up.’’ proposed Wings Lake Power Station o. Filing and Service of Responsive Project, a pump storage project, would Documents—Any filings must bear in Magalie R. Salas, consist of: (1) An upper and lower all capital letters the title Secretary. reservoir on a former iron ore mine site, ‘‘COMMENTS’’, ‘‘PROTEST’’, OR [FR Doc. E4–546 Filed 3–10–04; 8:45 am] with the upper reservoir filled from ‘‘MOTION TO INTERVENE’’, as BILLING CODE 6717–01–P ground water pumped from the mine; applicable, and the Docket Number of (2) a 700-foot-long, 100-foot-high rock the particular application to which the and compacted concrete dam; (3) a filing refers. A copy of any motion to DEPARTMENT OF ENERGY turbine/generating unit, with a total intervene must also be served upon each rated capacity of 500 MW, located in a representative of the Applicant Federal Energy Regulatory mine shaft; and (4) appurtenant specified in the particular application. Commission facilities. The hydroelectric unit will be p. Agency Comments—Federal, State, Notice of Declaration of Intention and tied into the interstate grid through the and local agencies are invited to file Soliciting Comments, Protests, and/or Crawford Electric Cooperative, Bourbon, comments on the described application. Motions To Intervene MO. A copy of the application may be When a Declaration of Intention is obtained by agencies directly from the March 4, 2004. filed with the Federal Energy Regulatory Applicant. If an agency does not file Take notice that the following Commission, the Federal Power Act comments within the time specified for application has been filed with the requires the Commission to investigate filing comments, it will be presumed to Commission and is available for public and determine if the interests of have no comments. One copy of an inspection: interstate or foreign commerce would be agency’s comments must also be sent to a. Application Type: Declaration of affected by the project. The Commission the Applicant’s representatives. intention. also determines whether or not the b. Docket No.: DI04–4–000. project: (1) Would be located on a Magalie R. Salas, c. Date Filed: February 2, 2004, navigable waterway; (2) would occupy Secretary. amended March 2, 2004. or affect public lands or reservations of [FR Doc. E4–510 Filed 3–10–04; 8:45 am] d. Applicant: Upland Wings, Inc., the United States; (3) would utilize BILLING CODE 6717–01–P Wings Lake, One Wings Lake Drive, surplus water or water power from a Sullivan, MO 63080, telephone (573) government dam; or (4) if applicable, 860–3146. has involved or would involve any DEPARTMENT OF ENERGY e. Name of Project: Wings Lake Power construction subsequent to 1935 that Station Project. may have increased or would increase Federal Energy Regulatory f. Location: The Wings Lake Power the project’s head or generating Commission Station Project would be located in capacity, or have otherwise significantly Sections 3, 4, 5, 8, 9 of T. 39 N., R. 1 modified the project’s pre-1935 design Notice of Scoping Meetings and Site W., 5th Meridian at the former Pea or operation. Visit, and Soliciting Scoping Ridge Iron Ore Company mining site in l. Locations of the Application: Copies Comments Washington County, Missouri. The of this filing are on file with the March 4, 2004. project will not occupy tribal or Federal Commission and are available for public Take notice that the following land. inspection. This filing may be viewed hydroelectric application has been filed g. Filed Pursuant to: Section 23(b)(1) on the Web at http://www.ferc.gov using with the Commission and is available of the Federal Power Act, 16 U.S.C. the ‘‘eLibrary’’ link, select ‘‘Docket#’’ for public inspection: 817(b). and follow the instructions. For a. Type of Application: New major h. Applicant Contact: James C. assistance, please contact FERC Online license. Kennedy, President, Upland Wings, One Support at b. Project No.: 2107–016. Wings Lake Drive, Sullivan, MO 63080, [email protected] or toll- c. Date Filed: December 16, 2003. telephone (573) 860–4986, E-mail free at (866) 208–3676, or TTY, contact d. Applicant: Pacific Gas and Electric [email protected]. (202) 502–8659. Company (PG&E). i. FERC Contact: Any questions on m. Individuals desiring to be included e. Name of Project: Poe Project. this notice should be addressed to on the Commission’s mailing list should f. Location: On the North Fork Feather Henry Ecton (202) 502–8768, or E-mail so indicate by writing to the Secretary River in Butte County, near Pulga, address: [email protected]. of the Commission. California. The project includes 144 j. Deadline for Filing Comments and/ n. Comments, Protests, or Motions to acres of lands of the Plumas National or Motions: April 5, 2004. Intervene—Anyone may submit Forest. All documents (original and eight comments, a protest, or a motion to g. Filed Pursuant to: Federal Power copies) should be filed with: Magalie R. intervene in accordance with the Act, 16 U.S.C. 791(a)–825(r). Salas, Secretary, Federal Energy requirements of rules of practice and h. Applicant Contact: Mr. Tom Jereb, Regulatory Commission, 888 First procedure, 18 CFR 385.210, .211, .214. Project Manager, Hydro Generation Street, NE., Washington, DC 20426. In determining the appropriate action to Department, Pacific Gas and Electric Comments, protests, and interventions take, the Commission will consider all Company, P.O. Box 770000 (N11C), San may be filed electronically via the protests or other comments filed, but Francisco, CA 94177, (415) 973–9320. Internet in lieu of paper. Any questions, only those who file a motion to i. FERC Contact: John Mudre, (202) please contact the Secretary’s Office. intervene in accordance with the 502–8902 or [email protected]. See 18 CFR 385.2001(a)(1)(iii) and the Commission’s rules may become a party j. Deadline for Filing Scoping instructions on the Commission’s Web to the proceeding. Any comments, Comments: May 3, 2004.
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All documents (original and eight for inspection and reproduction at the northeast of Oroville. All participants copies) should be filed with: Magalie R. address in item h above. are responsible for their own Salas, Secretary, Federal Energy You may also register online at transportation to the site. Please note Regulatory Commission, 888 First http://www.ferc.gov/docs-filing/ that, at present, the county road to the Street, NE., Washington, DC 20426. esubscription.asp to be notified via e- powerhouse is closed due to a slide, and The Commission’s rules of practice mail of new filings and issuances access is possible only down a steep and procedure require all interveners related to this or other pending projects. four-wheel-drive trail. Improvements filing documents with the Commission For assistance, contact FERC Online may be made prior to the site visit. Also to serve a copy of that document on Support. note that access to the Big Bend dam n. Scoping Process: The Commission each person on the official service list requires a 45 minute hike of moderate- intends to prepare an Environmental for the project. Further, if an intervener to-strenuous exertion. Anyone with files comments or documents with the Assessment (EA) on the project in accordance with the National questions about the site visit or Commission relating to the merits of an powerhouse access should contact Mr. issue that may affect the responsibilities Environmental Policy Act. The EA will Tom Jereb of PG&E at 415–973–9320. of a particular resource agency, they consider both site-specific and must also serve a copy of the document cumulative environmental impacts and Objectives on that resource agency. reasonable alternatives to the proposed Scoping comments may be filed action. At the scoping meetings, the staff will: electronically via the Internet in lieu of Scoping Meetings: FERC staff will (1) Summarize the environmental issues paper. The Commission strongly conduct one agency scoping meeting tentatively identified for analysis in the encourages electronic filings. See 18 and one public meeting. The agency EA; (2) solicit from the meeting CFR 385.2001(a)(1)(iii) and the scoping meeting will focus on resource participants all available information, instructions on the Commission’s Web agency and non-governmental especially quantifiable data, on the site (http://www.ferc.gov) under the organization (NGO) concerns, while the resources at issue; (3) encourage ‘‘e-Filing’’ link. public scoping meeting is primarily for statements from experts and the public k. This application is not ready for public input. All interested individuals, on issues that should be analyzed in the environmental analysis at this time. organizations, and agencies are invited EA, including viewpoints in opposition l. The Poe Project consists of: (1) The to attend one or both of the meetings, to, or in support of, the staff’s 400-foot-long, 60-foot-tall Poe Diversion and to assist the staff in identifying the preliminary views; (4) determine the scope of the environmental issues that Dam, including four 50-foot-wide by 41- resource issues to be addressed in the should be analyzed in the EA. The times foot-high radial flood gates, a 20-foot- EA; and (5) identify those issues that wide by 7-foot-high small radial gate, and locations of these meetings are as follows: require a detailed analysis, as well as and a small skimmer gate that is no those issues that do not require a longer used; (2) the 53-acre Poe Public Scoping Meeting detailed analysis. Reservoir; (3) a concrete intake structure Date: Wednesday March 31, 2004. Procedures located on the shore of Poe Reservoir; Time: 7:30 p.m. (4) a pressure tunnel about 19 feet in Place: U.S. Forest Service District The meetings are recorded by a diameter with a total length of about Office. 33,000 feet; (5) a differential surge stenographer and become part of the Address: 875 Mitchell Avenue, Oroville, formal record of the Commission chamber located near the downstream CA. end of the tunnel; (6) a steel proceeding on the project. underground penstock about 1,000 feet Agency Scoping Meeting Individuals, organizations, and in length and about 14 feet in diameter; Date: Thursday April 1, 2004. agencies with environmental expertise (7) a reinforced concrete powerhouse, Time: 10 a.m. and concerns are encouraged to attend 175-feet-long by 114-feet-wide, with two Place: U.S. Forest Service District the meeting and to assist the staff in vertical-shaft Francis-type turbines rated Office. defining and clarifying the issues to be at 76,000 horsepower connected to Address: 875 Mitchell Avenue, Oroville, addressed in the EA. vertical-shaft synchronous generators CA. rated at 79,350 kVA with a total Copies of the Scoping Document Magalie R. Salas, installed capacity of 143 MW and an (SD1) outlining the subject areas to be Secretary. average annual generation of 584 addressed in the EA are being [FR Doc. E4–511 Filed 3–10–04; 8:45 am] gigawatt hours; (8) the 370-foot-long, 61- distributed to the parties on the BILLING CODE 6717–01–P foot-tall, concrete gravity Big Bend Dam; Commission’s mailing list under (9) the 42-acre Poe Afterbay Reservoir; separate cover. Copies of the SD1 will and (10) related facilities. be available at the scoping meeting or m. A copy of the application is may be viewed on the Web at http:// available for review at the Commission www.ferc.gov using the ‘‘eLibrary’’ link in the Public Reference Room or may be (see item m above). viewed on the Commission’s Web site at http://www.ferc.gov using the Site Visit ‘‘eLibrary’’ link. Enter the docket The Applicant and FERC staff will number excluding the last three digits in conduct a project site visit beginning at the docket number field to access the 9:30 a.m. on Wednesday, March 31, document. For assistance, contact FERC 2004. All interested individuals, Online Support at organizations, and agencies are invited [email protected] or toll- to attend. All participants should meet free at 1–866–208–3676, or for TTY, at the parking area at the Poe Dam on (202) 502–8659. A copy is also available Route 70, approximately 25 miles
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DEPARTMENT OF ENERGY or documents with the Commission for inspection and reproduction at the relating to the merits of an issue that address in item (h) above. Federal Energy Regulatory may affect the responsibilities of a You may also register online at http:/ Commission particular resource agency, they must /www.ferc.gov/esubscribenow.htm to be also serve a copy of the document on [Project No. 459–128] notified via email of new filings and that resource agency. k. Cooperating Agencies: We are issuances related to this or other Union Electric Company (d/b/a/ pending projects. For assistance, contact AmerenUE); Notice of Application and asking Federal, State, local, and tribal FERC Online Support. Applicant Prepared Environmental agencies with jurisdiction and/or Assessment Tendered for Filing With special expertise with respect to o. Procedural Schedule and Final the Commission, Establishing environmental issues to cooperate with Amendments: The application will be Procedural Schedule for Relicensing us in the preparation of the processed according to the following and Deadline for Submission of Final environmental document. Agencies who Hydro Licensing Schedule. Revisions to Amendments would like to request cooperating status the schedule may be made as should follow the instruction for filing appropriate. March 4, 2004. comments described in item j above. Take notice that the following l. Status: This application has not Milestone: Issue acceptance or deficiency hydroelectric application has been filed been accepted for filing. We are not letter. Target Date: May 2004. with the Commission and is available soliciting motions to intervene, protests, Milestone: Request additional information (if for public inspection. or final terms and conditions at this necessary). Target Date: May 2004. a. Type of Application: New major time. Notice soliciting final terms and conditions. license. m. The Project Description: The Target Date: July 2004. b. Project No.: 459–128. existing project consists of: (1) A 2,543- Notice of availability of the EA. Target Date: c. Date Filed: February 24, 2004. foot-long, 148-foot-high dam comprised December 2004. d. Applicant: Union Electric Company of, from right to left: (i) A 1,181-foot- Ready for Commission Decision on the (d/b/a/ AmerenUE). long, non-overflow section, (ii) a 520- Application. Target Date: August 2005. e. Name of Project: Osage foot-long gated spillway section, (iii) a At this time, we intend to prepare a Hydroelectric Project. 511-foot-long intake works and single environmental document. The EA f. Location: On the Osage River, in powerhouse section, and (iv) a 331-foot- Benton, Camden, Miller and Morgan long non-overflow section; (2) an will include our recommendations for Counties, central Missouri. The project impoundment (Lake of the Ozarks), operational measures and occupies 1.6 acres of Federal land. approximately 93 miles in length, environmental enhancement measures g. Filed Pursuant to: Federal Power covering 54,000 acres at a normal full that should be part of any license issued Act 16 U.S.C. ((791 (a)–825(r). pool elevation of 660 feet mean sea by the Commission. Recipients will h. Applicant Contact: Jerry Hogg, level; (3) a powerhouse, integral with have 45 days to provide the Commission Superintendent Hydro Regulatory the dam, containing eight main with any written comments on the EA. Compliance, AmerenUE, 617 River generating units (172 MW) and two All comments filed with the Road, Eldon, MO 65026; Telephone auxiliary units (2.1 MW each), having a Commission will be considered in the (573) 365–9315; e-mail total installed capacity of 176.2 MW; order taking final action on the license [email protected]. and (4) appurtenant facilities. The application. Should substantive i. FERC Contact: Allan Creamer at project generates an average of 636,397 comments, requiring additional (202) 502–8365; or e-mail at megawatt-hours of electricity annually. analysis, be received, a revised NEPA [email protected]. AmerenUE currently operates, and is document will be prepared. j. Deadline for filing comments on the proposing to continue to operate, the application: 60 days from the filing date Osage Project as a peaking and load Final amendments to the application shown in paragraph (c), or April 26, regulation facility. AmerenUE proposes must be filed with the Commission no 2004. to upgrade two of the facility’s eight later than 30 days from the issuance All documents (original and eight main generating units and the two date of the notice soliciting final terms copies) should be filed with: Magalie R. smaller, auxiliary generating units. With and conditions. Salas, Secretary, Federal Energy the proposed upgraded units, energy Magalie R. Salas, Regulatory Commission, 888 First generation is estimated to increase by Street, NE., Washington, DC 20426. about 5.6 percent. In addition to the Secretary. Comments may be filed electronically physical plant upgrades, AmerenUE [FR Doc. E4–512 Filed 3–10–04; 8:45 am] via the Internet in lieu of paper; see 18 proposes a variety of environmental and BILLING CODE 6717–01–P CFR 385.2001(a)(1)(iii) and the recreation measures. instructions on the Commission’s Web n. Locations of the Application: A site (http://www.ferc.gov) under the ‘‘e- copy of the application is available for Filing’’ link. After logging into the e- review at the Commission in the Public Filing system, select ‘‘Comment on Reference Room or may be viewed on Filing’’ from the Filing Type Selection the Commission’s Web site at http:// screen and continue with the filing www.ferc.gov using the ‘‘eLibrary’’ link. process. The Commission strongly Enter the docket number, excluding the encourages electronic filing. last three digits in the docket number The Commission’s rules of practice field (P–459), to access the document. require all interveners filing documents For assistance, contact FERC Online with the Commission to serve a copy of Support at that document on each person on the [email protected] or toll- official service list for the project. free at 1–866–208–3676, or for TTY, Further, if an intervener files comments (202) 502–8659. A copy is also available
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DEPARTMENT OF ENERGY Commission at (317) 249–5936 or administrative penalties for inadvertent [email protected]. errors in reporting. Federal Energy Regulatory The Commission further required, Magalie R. Salas, Commission prospectively, that price indices used in Secretary. jurisdictional tariffs meet the criteria set [FR Doc. E4–539 Filed 3–10–04; 8:45 am] [Docket Nos. ER02–2595–000, EL03–34–000, forth in the Policy Statement and reflect BILLING CODE 6717–01–P ER03–1277–000, ER03–2458–000, ER04– adequate liquidity at the referenced 106–000, ER04–446–000, ER04–454–000 index points. The Commission also directed Staff to monitor the level of (Not Consolidated), EL04–43–000, EL04–46– DEPARTMENT OF ENERGY 000, ER04–364–000, ER04–375–000, ER04– reporting of transaction data to price 456–000, ER04–571–000] Federal Energy Regulatory index developers and the adherence by Commission market participants and price index Midwest Independent Transmission developers to the Policy Statement System Operator, Inc., Tenaska Power [Docket Nos. PL03–3–000 and AD03–7–000 standards. Services Co. v. Midwest Independent (Not Consolidated)] With respect to prospective use of Transmission System Operator, Inc., price indices in tariffs, the Commission Price Discovery in Natural Gas and issued separate orders on tariff filings Cargill Power Markets, LLC v. Midwest Electric Markets; Natural Gas Price Independent Transmission System where jurisdictional companies had Formation; Staff Notice of Request for proposed to make changes in indices Operator, Inc., American Electric Comments used in the tariff. The Commission Power Service Corporation, March 5, 2004. accepted and suspended the tariff Commonwealth Edison Company, sheets, permitting them to become Commonwealth Edison Company of Staff issues this notice to provide an opportunity for comments on the effective subject to further action by the Indiana, Inc., Midwest Independent Commission following receipt of a Transmission System Operator, Inc., current state of natural gas and electricity price formation, and whether report on the compliance and liquidity PJM Interconnection, L.L.C., Ameren 2 there has been any increase in issues from the Commission Staff. The Services Company, Midwest 3 confidence in natural gas and electric reports are due April 30, 2004. Independent Transmission System Staff has actively monitored industry price indices. These comments will Operator, Inc., Ameren Services response to the Policy Statement. In assist Staff in evaluating developments Company; Notice of Commission Staff September 2003 Staff sent a survey to since the issuance by the Commission of Participation at Technical Conference 266 companies seeking information on the Policy Statement on Natural Gas their price reporting practices before and Electric Price Indices, 104 FERC March 5, 2004 and after issuance of the Policy ¶ 61,121 (2003). Statement. To address the liquidity Representatives of the Commission’s Over the past year the Commission requirement of the Policy Statement, staff will attend a technical conference has taken several actions to improve the Staff held a workshop on liquidity pertaining to the Midwest Independent quality of and confidence in price issues on November 4, 2003. To Transmission System Operator, Inc.’s indices that both reflect and influence evaluate whether index developers have (Midwest ISO) anticipated Energy the formation of wholesale prices for adopted the Policy Statement standards, Markets Tariff Filing. The technical natural gas and electricity. In Docket Staff solicited statements from price conference will be held on March 10, No. AD03–7, the Commission’s Staff index developers, which statements 2004, from 10 a.m. to 6 p.m., and on held technical conferences on April 24 were filed in January 2004 in Docket No. March 11, 2004, from 8 a.m. to noon. and June 24, 2003, issued Staff PL03–3–000. The conference will take place at the discussion papers, and held a follow-up Meanwhile, on November 17, 2003, Lakeside Corporate Center (directly workshop on July 2, 2003, to explore the the Commission issued two orders across from the Midwest ISO’s desirability of a ‘‘safe harbor’’ for good adopting behavior rules for market headquarters), 630 West Carmel Drive, faith reporting of prices to price index participants. In Docket Nos. EL01–118– Carmel, Indiana. Further details of the developers. 000 and -001 the Commission issued its conference are available at http:// The conferences and workshops led Order Amending Market-Based Rate www.midwestiso.org/meetings.shtml. the Commission to issue the Policy Tariffs and Authorizations, 105 FERC Statement in Docket No. PL03–3 on July ¶ 61,218, and in Docket No. RM03–10– The purpose of the technical 1 24, 2003. In the Policy Statement, the 000 the Commission issued Order No. conference is to discuss the Midwest Commission explained what it expects ISO’s anticipated Energy Markets Tariff 644, Amendment to Blanket Sales of natural gas and electricity price index Certificates, 105 FERC ¶ 61,217. Both of Filing, expected to be filed with the developers and companies that report Commission on March 31, 2004. The these orders adopt a behavior rule transaction data to index developers, requiring that, to the extent holders of technical conference is open to the and created a rebuttable presumption public. During the course of the market-based rate authority and sellers that companies that report trade data in using blanket certificate sales authority meeting, it is possible that discussions accordance with the standards of the report transactions to entities that may overlap with issues pending in the Policy Statement are doing so in good above-captioned dockets. faith and will not be subject to 2 See ‘‘Order Accepting and Suspending Tariff For more information about the Sheets, Subject to Further Proceedings’’ in technical conference, contact Patrick 1 See the Policy Statement, ¶¶ 6–32, for a detailed Transcontinental Gas Pipe Line Company, 104 discussion of the role of price indices in energy FERC ¶ 61,181 (2003); Northern Natural Gas Clarey, Office of Markets, Tariffs and markets, concerns with price index quality and Company, 104 FERC ¶ 61,182 (2003); and Natural Rates, Federal Energy Regulatory reliability, industry efforts to improve index Gas Pipeline Company of America, 104 FERC ¶ Commission, at (317) 249–5937 or quality, and the steps leading to the Commission’s 61,190 (2003). [email protected], or Christopher issuance of the Policy Statement. Subsequently the 3 See, e.g., Northern Natural Gas Company, et al., Commission also issued an Order on Clarification ‘‘Notice Deferring Submission of Staff Reports,’’ Miller, Office of Markets, Tariffs and of Policy Statement on Natural Gas and Electric Docket Nos. RP03–533–000, et al., issued January Rates, Federal Energy Regulatory Price Indices, 105 FERC ¶ 61,282 (2003). 27, 2004.
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develop and publish price indices, they 1. Code of conduct and transactions have increased since must report such transactions in confidentiality. Provide a copy of the issuance of the Policy Statement. accordance with the Policy Statement. public portions of any applicable code The behavior rules orders also of conduct or ethics, along with a Price Reporting Entities directed all market-based rate sellers description of how the public code Interested market participants are and holders of blanket certificate relates to the treatment of price data invited to file comments on the authority to notify the Commission obtained, the methodology for developments since issuance of the whether or not they report prices to calculating indices, and the procedures Policy Statement. Parties are encouraged index developers in accordance with the for assuring confidential treatment of to address the following questions: Policy Statement. Numerous such trade data. Provide a sample copy of any notices were filed in January 2004. uniform confidentiality agreements used 1. Has the Policy Statement safe Finally, Staff will soon send a second with market participants. Explain and harbor for good faith reporting been survey to a set of companies that buy document provisions permitting helpful for your firm in its consideration and/or sell natural gas and electricity in Commission access to price data of whether to engage in the reporting of wholesale markets. The results of this necessary for performance of the price transaction data? second phase survey will be an Commission’s statutory duties. 2. Have you adopted the standards of important part of Staff’s status report to 2. Completeness. Discuss the scope of ¶ 34 of the Policy Statement or the Commission on price formation. information collected for use in the otherwise taken steps to improve the As noted, the Commission instructed indices. Provide sample indices quality of trade data submitted to price Staff to monitor ‘‘both the level of showing how you report ‘‘(a) the total index developers? reporting to index developers and the volume, (b) the number of transactions, amount of adherence to the standards (c) the number of transaction entities, 3. Have changes by price index set forth herein,’’ Policy Statement ¶ 43, (d) the range of prices (high/low), and developers materially improved the and to report to the Commission about (e) the volume-weighted average price.’’ transparency of information contained specific indices involved in certain tariff Policy Statement ¶ 33.2. Describe any in price indices? filings. The issues of the robustness of liquidity measures to inform users about 4. Do price index developers provide voluntary price reporting, price index the degree of activity or other indicators enough information about the level of developer adherence to Policy of reliability in the prices reported at trading activity at locations for which Statement standards, and the reliability each trading location. index prices are provided? of referenced index points all are related 3. Data verification, error correction, 5. Is it clear to you in publications to the overall progress in improving the and monitoring. Discuss the means by what information is intended to be price quality of price indices and of which you verify the prices reported to encouraging greater voluntary reporting you. Explain or provide information on indices and what information is of transaction data by market any error correction process used, intended to be ‘‘market price participants. As a result, Staff intends to including when and how error indications’’ or other market-related report to the Commission on overall corrections are published. Describe and information? Do price index developers progress in restoring confidence in price document your data monitoring and make clear which prices are indices indices and voluntary price formation as surveillance systems, and the steps to be prepared according to their index well as on the adequacy of indices taken (including notifying the methodology? referenced in specified tariffs. Commission or other agencies) in the 6. Do you have any specific concerns While Staff will shortly conduct the event anomalous data reported to you regarding the quality of price indices? If second industry survey to determine cannot be explained or resolved by the so, what are they? Please be specific whether steps taken by the Commission data provider. about the basis for the concerns as well have assisted the industry in restoring 4. Verifiability. Describe the scope of as what the concerns are. and document the independent audit or vitality and confidence in published 7. Do you have more confidence in verification of your data collection, price indices, Staff also provides this price indices today than before issuance evaluation, index calculation and index opportunity for comments by interested of the Policy Statement? parties on changes since the issuance of production processes, including the Policy Statement. whether there is any external process Interested parties should submit review. written comments on the issues Price Index Developers 5. Accessibility. Describe the outlined above no later than March 26, A number of price index developers availability of your price indices to the 2004. The Commission encourages filed statements in Docket No. PL03–3– industry. Discuss the measures taken to electronic submission of comments in 000 in January. At this time, Staff provide the Commission access to lieu of filing on paper. The provides a further opportunity for any relevant data in the event of suspected Commission’s electronic filing system natural gas or electricity price index bad faith reporting or potential and instructions for filing can be found developer to submit a statement manipulation. at the ‘‘eFiling’’ link on the regarding its compliance with the Policy Failure to file will lead Staff to Commission’s Web site (http:// Statement standards, or to supplement operate on the assumption that the www.ferc.gov). Commenters are not its previous statement. Specifically, we index developer has initiated no required to serve copies of their request that index developers file in changes in its practices. Information or comments on other commenters. For Docket No. PL03–3–000 (1) a statement data previously provided in any further information contact Ted whether the developer has adopted, or Commission docket or otherwise Gerarden at 202–502–6187 or will adopt, the standards of Policy available publicly may be incorporated [email protected]. Statement ¶ 33 and (2) a description of by reference in or included with the the developer’s practices in each of the statement. In addition, index developers Magalie R. Salas, five areas identified by the Commission are invited to comment on whether the Secretary. in the Policy Statement. The description number of price reporting entities and [FR Doc. E4–540 Filed 3–10–04; 8:45 am] should include the following: the number of reported fixed price BILLING CODE 6717–01–P
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ENVIRONMENTAL PROTECTION I. General Information then key in the appropriate docket identification number. AGENCY A. How Can I Get Copies of This Document and Other Related Certain types of information will not [FRL–7635–8] Information? be placed in the EPA Dockets. Information claimed as CBI and other 1. Docket. EPA has established an Waste Characterization Program information whose disclosure is official public docket for this action Documents Applicable to Transuranic restricted by statute, which is not under Docket ID No. OAR–2004–0020. Radioactive Waste From the Rocky included in the official public docket, Flats Environmental Technology Site The official public docket consists of the documents specifically referenced in will not be available for public viewing for Disposal at the Waste Isolation in EPA’s electronic public docket. EPA’s Pilot Plant this action, any public comments received, and other information related policy is that copyrighted material will not be placed in EPA’s electronic public AGENCY: Environmental Protection to this action. Although a part of the docket but will be available only in Agency. official docket, the public docket does not include Confidential Business printed, paper form in the official public ACTION: Notice of availability; opening docket. To the extent feasible, publicly of public comment period. Information (CBI) or other information whose disclosure is restricted by statute. available docket materials will be made available in EPA’s electronic public SUMMARY: The Environmental Protection The official public docket is the collection of materials that is available docket. When a document is selected Agency (EPA) is announcing the from the index list in EPA Dockets, the availability of, and soliciting public for public viewing at the Air and Radiation Docket in the EPA Docket system will identify whether the comments for 30 days on, Department of document is available for viewing in Energy (DOE) documents applicable to Center, (EPA/DC) EPA West, Room B102, 1301 Constitution Ave., NW, EPA’s electronic public docket. characterization of transuranic (TRU) Although not all docket materials may radioactive waste at the Rocky Flats Washington, DC. The EPA Docket Center Public Reading Room is open be available electronically, you may still Environmental Technology Site (RFETS) access any of the publicly available proposed for disposal at the Waste from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal docket materials through the docket Isolation Pilot Plant (WIPP). The facility identified in Unit I.B. EPA documents are available for review in holidays. The telephone number for the Public Reading Room is (202) 566–1744, intends to work towards providing the public dockets listed in ADDRESSES. electronic access to all of the publicly We will consider public comments and the telephone number for the Air and Radiation Docket is (202) 566–1742. available docket materials through received on or before the due date EPA’s electronic public docket. mentioned in DATES. EPA will conduct These documents are also available for an inspection of waste streams, review in paper form at the official EPA For public commenters, it is characterization systems and processes Air Docket in Washington, DC, Docket important to note that EPA’s policy is at RFETS to verify that the site can No. A–98–49, Category II–A2, and at the that public comments, whether characterize transuranic waste in following three EPA WIPP informational submitted electronically or in paper, accordance with EPA’s WIPP docket locations in New Mexico: in will be made available for public compliance criteria. EPA will perform Carlsbad at the Municipal Library, viewing in EPA’s electronic public Hours: Monday-Thursday, 10 a.m.–9 this inspection the week of March 29, docket as EPA receives them and p.m., Friday-Saturday, 10 a.m.–6 p.m., 2004. This notice of the inspection and without change, unless the comment and Sunday 1 p.m.–5 p.m.; in comment period accords with 40 CFR contains copyrighted material, CBI, or Albuquerque at the Government 194.8. other information whose disclosure is Publications Department, Zimmerman restricted by statute. When EPA DATES: EPA is requesting public Library, University of New Mexico, identifies a comment containing comment on the documents. Comments Hours: vary by semester; and in Santa copyrighted material, EPA will provide must be received by EPA’s official Air Fe at the New Mexico State Library, a reference to that material in the Docket on or before April 12, 2004 . Hours: Monday-Friday, 9 a.m.–5 p.m. version of the comment that is placed in ADDRESSES: Comments may be As provided in EPA’s regulations at 40 EPA’s electronic public docket. The submitted by mail to: EPA Docket CFR Part 2, and in accordance with entire printed comment, including the Center (EPA/DC), Air and Radiation normal EPA docket procedures, if copyrighted material, will be available Docket, Environmental Protection copies of any docket materials are in the public docket. requested, a reasonable fee may be Agency, EPA West, Mail Code 6102T, Public comments submitted on charged for photocopying. 1200 Pennsylvania Avenue, NW., computer disks that are mailed or Washington, DC 20460. Attention 2. Electronic Access. You may access this Federal Register document delivered to the docket will be Docket ID No. OAR–2004–0020. transferred to EPA’s electronic public Comments may also be submitted electronically through the EPA Internet under the ‘‘Federal Register’’ listings at docket. Public comments that are electronically, by facsimile, or through mailed or delivered to the Docket will hand delivery/courier. Follow the http://www.epa.gov/fedrgstr/. An electronic version of the public be scanned and placed in EPA’s detailed instructions as provided in docket is available through EPA’s electronic public docket. Where Unit I.B of the SUPPLEMENTARY electronic public docket and comment practical, physical objects will be INFORMATION section. system, EPA Dockets. You may use EPA photographed, and the photograph will FOR FURTHER INFORMATION CONTACT: Ed Dockets at http://www.epa.gov/edocket/ be placed in EPA’s electronic public Feltcorn, Office of Radiation and Indoor to submit or view public comments, docket along with a brief description Air, (202) 343–9463. You can also call access the index listing of the contents written by the docket staff. EPA’s toll-free WIPP Information Line, of the official public docket, and to For additional information about 1–800–331–WIPP or visit our Web site access those documents in the public EPA’s electronic public docket visit EPA at http://www.epa/gov/radiation/wipp. docket that are available electronically. Dockets online or see 67 FR 38102, May SUPPLEMENTARY INFORMATION: Once in the system, select ‘‘search,’’ 31, 2002.
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B. How and to Whom Do I Submit mail system is not an ‘‘anonymous of 1992 (Pub. L. No. 102–579), as Comments? access’’ system. If you send an e-mail amended (Pub. L. No. 104–201), TRU You may submit comments comment directly to the Docket without waste consists of materials containing electronically, by mail, by facsimile, or going through EPA’s electronic public elements having atomic numbers greater through hand delivery/courier. To docket, EPA’s e-mail system than 92 (with half-lives greater than ensure proper receipt by EPA, identify automatically captures your e-mail twenty years), in concentrations greater the appropriate docket identification address. E-mail addresses that are than 100 nanocuries of alpha-emitting number in the subject line on the first automatically captured by EPA’s e-mail TRU isotopes per gram of waste. Much page of your comment. Please ensure system are included as part of the of the existing TRU waste consists of that your comments are submitted comment that is placed in the official items contaminated during the within the specified comment period. public docket, and made available in production of nuclear weapons, such as Comments received after the close of the EPA’s electronic public docket. rags, equipment, tools, and sludges. comment period will be marked ‘‘late.’’ 2. By Mail. Send your comments to: On May 13, 1998, EPA announced its EPA is not required to consider these EPA Docket Center (EPA/DC), Air and final compliance certification decision late comments. However, late comments Radiation Docket, Environmental to the Secretary of Energy (published may be considered if time permits. Protection Agency, EPA West, Mail May 18, 1998, 63 FR 27354). This 1. Electronically. If you submit an Code 6102T, 1200 Pennsylvania decision stated that the WIPP will electronic comment as prescribed Avenue, NW., Washington, DC 20460. comply with EPA’s radioactive waste below, EPA recommends that you Attention Docket ID No. OAR–2004– disposal regulations at 40 CFR Part 191, include your name, mailing address, 0020. Subparts B and C. and an e-mail address or other contact 3. By Hand Delivery or Courier. The final WIPP certification decision information in the body of your Deliver your comments to: Air and includes conditions that (1) prohibit comment. Also include this contact Radiation Docket, EPA Docket Center, shipment of TRU waste for disposal at information on the outside of any disk (EPA/DC) EPA West, Room B102, 1301 WIPP from any site other than the Los or CD ROM you submit, and in any Constitution Ave., NW., Washington, Alamos National Laboratories (LANL) cover letter accompanying the disk or DC, Attention Docket ID No. OAR– until the EPA determines that the site CD ROM. This ensures that you can be 2004–0020. Such deliveries are only has established and executed a quality identified as the submitter of the accepted during the Docket’s normal assurance program, in accordance with comment and allows EPA to contact you hours of operation as identified in Unit §§ 194.22(a)(2)(i), 194.24(c)(3), and in case EPA cannot read your comment I.A.1. 194.24(c)(5) for waste characterization 4. By Facsimile. Fax your comments due to technical difficulties or needs activities and assumptions (Condition 2 to: (202) 566–1741, Attention Docket ID. further information on the substance of of Appendix A to 40 CFR Part 194); and No. OAR–2004–0020. your comment. EPA’s policy is that EPA (2) (with the exception of specific, will not edit your comment, and any C. What Should I Consider as I Prepare limited waste streams and equipment at identifying or contact information My Comments for EPA? LANL) prohibit shipment of TRU waste provided in the body of a comment will for disposal at WIPP (from LANL or any You may find the following other site) until EPA has approved the be included as part of the comment that suggestions helpful for preparing your is placed in the official public docket, procedures developed to comply with comments: the waste characterization requirements and made available in EPA’s electronic 1. Explain your views as clearly as of § 194.22(c)(4) (Condition 3 of public docket. If EPA cannot read your possible. Appendix A to 40 CFR Part 194). The comment due to technical difficulties 2. Describe any assumptions that you EPA’s approval process for waste and cannot contact you for clarification, used. EPA may not be able to consider your 3. Provide any technical information generator sites is described in § 194.8. comment. and/or data you used that support your As part of EPA’s decision-making i. EPA Dockets. Your use of EPA’s views. process, the DOE is required to submit electronic public docket to submit 4. If you estimate potential burden or to EPA appropriate documentation of comments to EPA electronically is costs, explain how you arrived at your quality assurance and waste EPA’s preferred method for receiving estimate. characterization programs at each DOE comments. Go directly to EPA Dockets 5. Provide specific examples to waste generator site seeking approval for at http://www.epa.gov/edocket, and illustrate your concerns. shipment of TRU radioactive waste to follow the online instructions for 6. Offer alternatives. WIPP. In accordance with § 194.8, EPA submitting comments. To access EPA’s 7. Make sure to submit your will place such documentation in the electronic public docket from the EPA comments by the comment period official Air Docket in Washington, DC, Internet Home Page, select ‘‘Information deadline identified. and informational dockets in the State Sources,’’ ‘‘Dockets,’’ and ‘‘EPA 8. To ensure proper receipt by EPA, of New Mexico for public review and Dockets.’’ Once in the system, select identify the appropriate docket comment. ‘‘search,’’ and then key in Docket ID No. identification number in the subject line EPA will perform an inspection of the OAR–2004–0020. The system is an on the first page of your response. It waste characterization systems and ‘‘anonymous access’’ system, which would also be helpful if you provided processes for TRU waste at RFETS in means EPA will not know your identity, the name, date, and Federal Register accordance with Conditions 3 of the e-mail address, or other contact citation related to your comments. WIPP certification. The purpose of this information unless you provide it in the inspection is for the annual re- body of your comment. II. Background evaluation of the transuranic (TRU) ii. E-mail. Comments may be sent by DOE is developing the WIPP near waste program at RFETS and to evaluate electronic mail (e-mail) to a-and-r- Carlsbad in southeastern New Mexico as new activities (i.e., new equipment, [email protected], Attention Docket ID a deep geologic repository for disposal such as the Multi Purpose Crate No. OAR–2004–0020. In contrast to of TRU radioactive waste. As defined by Counter) associated with a particular EPA’s electronic public docket, EPA’s e- the WIPP Land Withdrawal Act (LWA) waste stream (soils/gravels). The
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inspection is scheduled to take place the 1413 of the Safe Drinking Water Act, as Frivolous or insubstantial requests for a week of March 29, 2004. amended, and the requirements hearing may be denied by the Regional EPA has placed a number of governing the National Primary Administrator. However, if a substantial documents pertinent to the inspection Drinking Water Regulations request for a public hearing is made by in the public docket described in Implementation, 40 CFR part 142, that April 12, 2004, a public hearing will be ADDRESSES. These documents can be the State of Delaware is revising its held. found online in EDOCKET ID No. OAR– approved Public Water System A request for public hearing shall 2004–0020 and also in hard copy form Supervision Program. Delaware has include the following: (1) The name, as item II–A2–48 in Docket A–98–49. In adopted the Arsenic Rule that requires address, and telephone number of the accordance with 40 CFR 194.8, as community and non-transient non- individual, organization, or other entity amended by the final certification community water systems to comply requesting a hearing; (2) a brief decision, EPA is providing the public 30 with the revised arsenic drinking water statement of the requesting person’s days to comment on these documents. standard that established the maximum interest in the Regional Administrator’s If EPA determines as a result of the contamination level (MCL) standard at determination and of information that inspection that the proposed waste 10 parts per billion. The arsenic the requesting person intends to submit streams, processes, systems, and drinking water standard to be expressed at such a hearing; and (3) the signature equipment at RFETS adequately control as 0.010 mg/L. EPA has determined that of the individual making the request; or, the characterization of transuranic these revisions, all effective September if the request is made on behalf of an waste, we will notify DOE by letter and 19, 2003, are no less stringent than the organization or other entity, the place the letter in the official Air Docket corresponding Federal regulations. signature of a responsible official of the in Washington, DC, as well as in the Therefore, EPA has decided to organization or other entity. informational docket locations in New tentatively approve these program Dated: March 3, 2004. revisions. All interested parties are Mexico. A letter of approval will allow Thomas Voltaggio, DOE to dispose of TRU waste at the invited to submit written comments on Acting Regional Administrator, Region III. WIPP using the approved this determination and may request a characterization processes. The EPA public hearing. [FR Doc. 04–5512 Filed 3–10–04; 8:45 am] will not make a determination of DATES: Comments or a request for a BILLING CODE 6560–50–P compliance prior to the inspection or public hearing must be submitted by before the 30-day comment period has April 12, 2004. This determination shall closed. become effective on April 12, 2004, if no FEDERAL RESERVE SYSTEM Information on the certification timely and appropriate request for a Consumer Advisory Council; Notice of decision is filed in the official EPA Air hearing is received and the Regional Meeting of Consumer Advisory Docket, Docket No. A–93–02 and is Administrator does not elect to hold a Council available for review in Washington, DC, hearing on his own motion, and if no and at three EPA WIPP informational comments are received which cause The Consumer Advisory Council will docket locations in New Mexico. The EPA to modify its tentative approval. meet on Thursday, March 25, 2004. The dockets in New Mexico contain only ADDRESSES: Comments or a request for meeting, which will be open to public major items from the official Air Docket a public hearing must be submitted to observation, will take place at the in Washington, DC, plus those the U.S. Environmental Protection Federal Reserve Board’s offices in documents added to the official Air Agency Region III, 1650 Arch Street, Washington, DC, in Dining Room E on Docket since the October 1992 Philadelphia, PA 19103–2029. the Terrace level of the Martin Building. enactment of the WIPP LWA. Comments may also be submitted Anyone planning to attend the meeting Dated: March 5, 2004. electronically to Steve Maslowski at should, for security purposes, register Robert Brenner, [email protected]. no later than Tuesday, March 23, by Acting Assistant Administrator for Air and All documents relating to this completing the form found on-line at: Radiation. determination are available for https://www.federalreserve.gov/secure/ [FR Doc. 04–5636 Filed 3–10–04; 8:45 am] inspection between the hours of 8 a.m. forms/cacregistration.cfm and 4:30 p.m., Monday through Friday, BILLING CODE 6560–50–P Additionally, attendees must present at the following offices: photo identification to enter the • Drinking Water Branch, Water building. ENVIRONMENTAL PROTECTION Protection Division, U.S. Environmental The meeting will begin at 9 a.m. and AGENCY Protection Agency Region III, 1650 Arch is expected to conclude at 1 p.m. The Street, Philadelphia, PA 19103–2029. Martin Building is located on C Street, • [FRL–7635–2] Office of Drinking Water, Delaware NW., between 20th and 21st Streets. Department of Health and Social Notice of Tentative Approval and The Council’s function is to advise Services, Blue Hen Corporate Center, the Board on the exercise of the Board’s Solicitation of Request for a Public Suite 203, Dover, DE 19901. Hearing for Public Water System responsibilities under various consumer FOR FURTHER INFORMATION CONTACT: Supervision Program Revisions for the financial services laws and on other Steve Maslowski, Drinking Water State of Delaware matters on which the Board seeks its Branch (3WP22) at the Philadelphia advice. Time permitting, the Council AGENCY: Environmental Protection address given above; telephone (215) will discuss the following topics: Agency (EPA). 814–2371 or fax (215) 814–2318. Community Reinvestment Act: ACTION: Notice of tentative approval and SUPPLEMENTARY INFORMATION: All Discussion of issues in connection with solicitation of requests for a public interested parties are invited to submit the proposed changes to Regulation BB, hearing. written comments on this determination which implements the Community and may request a public hearing. All Reinvestment Act. SUMMARY: Notice is hereby given in comments will be considered, and, if Rules for Uniform Standards for Clear accordance with the provision of section necessary, EPA will issue a response. and Conspicuous Disclosures:
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Discussion of issues in the proposed Paperwork Reduction Act of 1995 for To comprehensively evaluate hazards rules to establish more uniform opportunity for public comment on in response to a request for a health standards for providing disclosures for: proposed data collection projects, the hazard evaluation, NIOSH frequently Regulation B, which implements the Centers for Disease Control and conducts an on-site evaluation. The Equal Credit Opportunity Act; Prevention (CDC) will publish periodic main purpose of an on-site evaluation is Regulation E, which implements the summaries of proposed projects. To to help employers and employees Electronic Fund Transfer Act; request more information on the identify and eliminate occupational Regulation M, which implements the proposed projects or to obtain a copy of health hazards. The interview and Consumer Leasing Act; Regulation Z, the data collection plans and questionnaires are specific to each which implements the Truth in Lending instruments, call the CDC Reports workplace and its suspected disease(s) Act; and Regulation DD, which Clearance Officer on (404) 498–1210. and hazards. The questionnaires are implements the Truth in Savings Act. Comments are invited on: (a) Whether composed of items that were developed General Accounting Office (GAO) the proposed collection of information Study on Predatory Lending: Discussion from standard medical and is necessary for the proper performance epidemiologic techniques. of GAO’s findings, conclusions, and of the functions of the agency, including recommendations. whether the information shall have NIOSH distributes interim and final Committee Reports: Council practical utility; (b) the accuracy of the reports of health hazard evaluations committees will report on their work. (excluding personal identifiers) to Other matters initiated by Council agency’s estimate of the burden of the proposed collection of information; (c) requesters, employers, employee members also may be discussed. representatives, the Department of Persons wishing to submit views to ways to enhance the quality, utility, and Labor; and as appropriate to the the Council on any of the above topics clarity of the information to be may do so by sending written collected; and (d) ways to minimize the Occupational Safety and Health statements to Ann Bistay, Secretary of burden of the collection of information Administration or Mine Safety and the Consumer Advisory Council, on respondents, including through the Health Administration, and other state Division of Consumer and Community use of automated collection techniques and federal agencies. Affairs, Board of Governors of the or other forms of information NIOSH administers a followback Federal Reserve System, Washington, technology. Send comments to Seleda program to assess the effectiveness of its DC 20551. Information about this Perryman, CDC Assistant Reports health hazard evaluation program in meeting may be obtained from Ms. Clearance Officer, 1600 Clifton Road, reducing workplace hazards. This MS–E11, Atlanta, GA 30333. Written Bistay, 202–452–6470. program entails the mailing of comments should be received within 60 Board of Governors of the Federal Reserve followback questionnaires to employer days of this notice. System, March 5, 2004. and employee representatives in the Jennifer J. Johnson, Proposed Project: Health Hazard workplace and, in some instances, to a Secretary of the Board. Evaluations/Technical Assistance and followback on-site evaluation. Due to Emerging Problems, OMB No. 0920– [FR Doc. 04–5452 Filed 3–10–04; 8:45 am] the large number of investigations 0260–EXTENSION–National Institute BILLING CODE 6210–01–P conducted each year, as well as the for Occupational Safety and Health (NIOSH), Centers for Disease Control diverse and unpredictable nature of and Prevention (CDC). these investigations, and the need to DEPARTMENT OF HEALTH AND respond quickly to requests for HUMAN SERVICES Background assistance, NIOSH requests consolidated In accordance with the mandates of clearance for data collection of its health Centers for Disease Control and hazard evaluations. There is no cost to Prevention the Occupational Safety and Health Act of 1970 and the Federal Mine Safety and respondents. [60Day–04–30] Health Act of 1977, the National Proposed Data Collections Submitted Institute for Occupational Safety and for Public Comment and Health (NIOSH) responds to requests for Recommendations health hazard evaluations to identify chemical, biological or physical hazards In compliance with the requirement in workplaces throughout the United of section 3506(c)(2)(A) of the States.
Number of re- Average bur- Respondents Number of re- sponses/re- den/response Total burden spondents spondent (in hrs) hours
Employees (interview) ...... 4000 1 15/60 1000 Employees (questionnaire) ...... 4000 1 30/60 2000 Employees (followback) ...... 300 2 30/60 300 Employers (followback) ...... 300 2 30/60 300
Total ...... 3600
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Dated: March 4, 2004. This program announcement burden was greater and the provision of Alvin Hall, addresses the United States Department services was less for many racial, ethnic Director, Management Analysis and Services of Health and Human Services (DHHS) and underserved populations. Office, Centers for Disease Control and Strategic Plan Goal to improve the Although a Cochrane systematic Prevention. quality of health care services; the review of research on the effectiveness [FR Doc. 04–5516 Filed 3–10–04; 8:45 am] HealthierUS Initiative ‘‘Prevention: of interventions to change health care BILLING CODE 4163–18–P Getting Preventive Screening; and systems or health care provider ‘‘Healthy People 2010’’ focus areas of practices found that some interventions Cancer, Access to Quality Health are effective in certain circumstances, a DEPARTMENT OF HEALTH AND Services, Educational and Community- recent systematic review for AHRQ that HUMAN SERVICES Based Programs, and Public Health focused specifically on interventions to Infrastructure. increase the use of evidence-based Centers for Disease Control and Measurable outcomes of the program cancer control practices found that Prevention will be in alignment with the following evidence was insufficient to make performance goal for NCCDPHP: recommendations. In addition, Participatory Research on Community Support prevention research to develop interventions found to be efficacious in Interventions To Increase the sustainable and transferable research may not be translated into Utilization of Effective Cancer community-based behavioral practice because the research often does Preventive and Treatment Services interventions: The following not involve the communities of interest performance goal will be in alignment Announcement Type: New. in the research and does not address with PHPPO: Strengthen the public Funding Opportunity Number: PA community needs. Therefore, additional health infrastructure by stimulating 04087. research is needed on the effectiveness extramural prevention research to of community interventions to increase Catalog of Federal Domestic discover how to apply the latest Assistance Number: 93.945. use of evidence-based cancer screening biomedical research at the local level and treatment services. This research Key Dates: and how to supply frontline public should also involve the affected Letter of Intent Deadline: March 26, health workers with evidence of what communities of health plans, providers, 2004. works. and insurers in the research process to Application Deadline: May 10, 2004. Research Objectives: The specific increase the likelihood that resulting Executive Summary: None. research objective for this program interventions can be adopted into announcement is to stimulate I. Funding Opportunity Description practice. investigator-initiated, participatory Activities: Awardee activities for this Authority: Public Health Service Act, research to evaluate the effectiveness of program are as follows: sections 301(a) and 317(k)(2), as amended. community interventions to: (1) Increase (1) Conduct studies to evaluate the provision of colorectal cancer screening; effectiveness of community Purpose: The Centers for Disease (2) increase use of shared decision Control and Prevention (CDC) interventions to increase use of making for prostate cancer screening; or evidence-based cancer screening and announces the availability of fiscal year (3) increase use of systematically (FY) 2004 funds for a grant program treatment services, specifically to: developed guidelines for the diagnosis (a) Increase provision of colorectal from the National Center for Chronic and treatment of ovarian cancer. cancer screening. Disease Prevention and Health This objective addresses research gaps (b) Increase use of shared decision Promotion (NCCDPHP) Division of identified in recent reviews conducted making for prostate cancer screening. Cancer Prevention and Control (DCPC) by the Institute of Medicine (IOM), the (c) Increase utilization of and the Public Health Practice Program Cochrane Effective Practice and systematically developed guidelines for Office (PHPPO) Office of Science and Organization of Care group, and the the diagnosis and treatment of ovarian Extramural Research. This Agency for Healthcare Research and cancer. announcement supports research to Quality (AHRQ). In Fulfilling the (2) Involve the affected communities, evaluate the effectiveness of community Potential of Cancer Prevention and Early i.e., health plans, health care providers, interventions to increase the use by Detection, the IOM identified the and health insurers in the research health plans, health insurers, and/or possibility of substantial near term process. health care providers of evidence-based reductions in cancer incidence and For purposes of this announcement cancer screening and treatment services mortality if health plans, health care the following definitions are used: in the following three areas: (1) To providers, and health insurers Community refers to health plans, increase provision of colorectal cancer implemented evidence-based cancer health care providers, and/or health screening; (2) to increase use of shared screening services. The report also insurers, i.e., the people, organizations decision making for prostate cancer illustrated problems for insurers, plans, or networks (including faith-based) that screening; or (3) to increase use of providers and patients that result from would be affected by the community systematically developed guidelines for implementing new screening interventions and/or that would the diagnosis and treatment of ovarian technologies when evidence on the implement such interventions. The cancer. Applicants may submit separate balance of benefits and harms from investigator for each research proposal applications for one or more of the three screening is uncertain. In Ensuring must define the relevant community or above areas of research. Findings from Quality Cancer Care, the IOM concluded communities using a set of tangible the funded projects will contribute to that for many cancer patients, a wide criteria. The criteria can include a reductions in cancer morbidity and gap exists between patients’ experiences common interest, identity, or mortality, improvements in the quality with cancer care and the evidence-based characteristic. These communities need of life for cancer patients, and increases quality diagnostic and treatment not be defined geographically. in the use of public health and services that are recommended. In The Community interventions can include prevention research in everyday health Unequal Burden of Cancer, the IOM any of a variety of activities practice. provided evidence that the cancer implemented to change health system or
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health care provider behavior to cancer screening and in the U.S. Health care provider is a person who increase the use of evidence-based Preventive Services Task Force is trained and licensed to give health cancer screening and treatment services. recommendations on shared decision care, or a place licensed to give health These may include, but are not limited making. Shared decision making occurs care. Doctors, nurses, hospitals, skilled to, changes in insurance coverage, when a patient and his health care nursing facilities, some assisted living incentives, health care provider provider discuss screening in a clinical facilities, and certain kinds of home training, reminders to providers or setting and decide together whether to health agencies are examples of health patients, audits and feedback, opinion screen or not. For shared decision care providers. leaders, academic detailing, role making to occur, the patient must Health insurers/Health insurance— modeling, or standardized performance understand the nature and risks of the Insurance against financial losses measures, e.g., the Health Employer cancer, the screening test(s) and resulting from health issues, preventing, Data and Information Set provided at: treatments and their likely diagnosing and/or treating disease, http://www.ncqa.org/communications/ consequences, including risks (harms), sickness or accidental bodily injury, as publications/hedispub.htm). limitations, benefits, alternatives, and well as from therapeutic, rehabilitative, Participatory research involves uncertainties. Further, the patient must maintenance, or palliative care. collaboration with the community being consider his or her preferences as studied, at least in formulating the appropriate, participate in decision II. Award Information research questions and in interpreting making at a personally desirable level, Type of Award: Grant. and applying the findings, and possibly and either make a decision consistent Fiscal Year Funds: 2004. also in developing study methods and with his or her preferences and values Approximate Total Funding: $650,000 interventions and/or analyzing data, or elect to defer the decision to a later for Colorectal Cancer, 650,000 for according to the community’s interests, time. For prostate cancer screening, Ovarian Cancer, 650,000 for Prostate time, and expertise. The community or shared decision making must include Cancer, $1,950,000 Total. communities that are to be involved, as making patients aware of the following Approximate Number of Awards: At participants in the research process from the USPSTF: There is good least three total, including a minimum must be explicitly identified. This evidence that Prostate Specific Antigen of one for colorectal cancer, one for announcement is not limited to any screening can detect early-stage prostate ovarian cancer, and one for prostate particular model of participatory cancer, but there is mixed and cancer. research. Applicants should also consult inconclusive evidence that early Approximate Average Award: guidelines on participatory research, detection improves health outcomes; $650,000 (This amount is for the first such as those provided at: http:// screening is associated with important 12-month budget period, and includes www.ihpr.ubc.ca/guidelines.html and harms, including frequent false-positive both direct and indirect costs.). the campus-community partnership results and unnecessary anxiety, Floor of Award Range: None. principles at: http:// biopsies, and potential complications of Ceiling of Award Range: $650,000. futurehealth.ucsf.edu/ccph/ treatment of some cancers that may Anticipated Award Date: September principles.html#principles. never affect or have affected a patient’s 1, 2004. Effectiveness of community health; and evidence is insufficient to Budget Period Length: 12 months. interventions means that the community determine whether the benefits Project Period Length: Four years. intervention in an intervention group outweigh the harms. Throughout the project period, CDC’s results in a measurable and statistically Systematically developed guidelines commitment to continuation of awards significant increase in the use of for the diagnosis and treatment of will be conditioned on the availability evidence-based colorectal screening ovarian cancer include only diagnostic of funds, evidence of satisfactory services, shared decision making for and treatment services for ovarian progress by the recipient (as prostate cancer screening, or evidence- cancer recommended by a National documented in required reports), and based diagnostic and treatment services Institutes of Health (NIH) consensus the determination that continued for ovarian cancer. Effectiveness is panel or by a review group for the funding is in the best interest of the determined when comparing the National Cancer Institute Physician Data Federal Government. intervention group to the comparison Query System. These guidelines include III. Eligibility Information group or groups. referral to a gynecologic oncologist. Evidence-based colorectal cancer Health care involves the care, III.1. Eligible applicants screening services include only tests services, and supplies related to the Applications may be submitted by the evaluated and recommended by the U.S. health of an individual. Health care following entities: Preventive Services Task Force includes preventive, diagnostic, • Public nonprofit organizations. (USPSTF). Such tests are performed in therapeutic, rehabilitative, maintenance, • Private nonprofit organizations. the absence of symptoms or signs in or palliative care, and counseling, • Universities. order to identify cancer at an early stage among other services. Health care also • Colleges. or to identify precursor lesions. The includes the sale and dispensing of • Research institutions. USPSTF has found evidence that these prescription drugs or devices. tests are effective in reducing mortality Health plans are individual or group III.2. Cost Sharing or Matching and that the balance of risks and plans that provide or pay the cost of Matching funds are not required for benefits is positive. health care. This includes private and this program. Shared decision making for prostate public health plans, and includes, for cancer screening, for purposes of this example, health maintenance III.3. Others announcement, refers only to organizations, preferred provider CDC requires that you submit a Letter definitions provided in the Guide to organizations, long term care and health of Intent (LOI) if you intend to apply to Community Preventive Services insurance companies, employee health this Program Announcement. If CDC recommendations on the effectiveness benefit plans, and any other plan that does not receive your LOI by the LOI of community interventions to increase provides or pays for the costs of health deadline specified under IV.3. the use of informed decision making for care. Submission Dates and Times, your
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application will not be entered into the 3. The applicant must demonstrate an IV. Application and Submission review process. You will be notified that effective and well-defined working Information your application did not meet the relationship between the research IV.1. Address To Request Application submission requirements. organization and the partnering Package If you request a funding amount communities of health care providers, greater than the ceiling of the award insurers, or plans. One source of To apply for this funding opportunity, range, your application will be documentation of this relationship must use application form PHS 398 (OMB considered non-responsive, and will not be provided in the form of Letters of number 0925–0001 rev. 5/2001). Forms be entered into the review process. You Support from each partnering and instructions are available in an interactive format on the CDC Web site, will be notified that your application community, briefly describing the at the following Internet address: http:/ did not meet the submission working relationship. requirements. /www.cdc.gov/od/pgo/forminfo.htm If your application is incomplete, it Documentation of Eligibility Forms and instructions are also will not be entered into the review available in an interactive format on the process. You will be notified that your Evidence of meeting the three National Institutes of Health (NIH) Web application did not meet submission additional eligibility criteria stated site at the following Internet address: requirements. above must be provided as a separate http://grants.nih.gov/grants/funding/ If your application does not include a appendix to the application, labeled phs398/phs398.html. plan for measures of effectiveness to ‘‘Documentation of Eligibility,’’ and the If you do not have access to the demonstrate the accomplishment of the location of the appendix must be Internet, or if you have difficulty various identified objectives of the identified in the table of contents. This accessing the forms on-line, you may grant, as noted in the review criteria appendix should broadly summarize the contact the CDC Procurement and below, it will not be entered into the additional eligibility criteria listed Grants Office Technical Information review process. You will be notified that above including institutional Management Section (PGO-TIM) staff at: your application did not meet affiliations, and experience and 770–488–2700. Application forms can submission requirements. expertise as they relate to the be mailed to you. In addition, if your application does application. However, this appendix IV.2. Content and Form of Application not meet the following three eligibility should not reiterate or itemize specific Submission criteria, it will not be entered into the details included in the Biographical Letter of Intent (LOI): CDC requires review process and you will be notified Sketch provided for each of the key that you submit an LOI if you intend to that your application did not meet personnel. submission requirements: apply to this Program Announcement. If 1. The principal investigator or co- These eligibility criteria are to ensure you fail to submit an LOI, any principal investigator must have that the proposed research will be of subsequent application will not be conducted five or more years of significant quality. Proposed research entered into the review process. competitively funded peer reviewed must meet the rigorous methodological Although the LOI is not binding, and research community interventions with guidelines required of the research to be does not enter into the review of your health plans, health insurers, and/or included in evidence reviews conducted subsequent application, it will be used health care providers, and have by the USPSTF, AHRQ, and the Guide to gauge the level of interest in this published the findings from that to Community Preventive Services. program, and to allow CDC to plan the research in peer reviewed journals Furthermore, proposed research should application review. within the last three years. contribute to strong evidence on the Your LOI must be written in the effectiveness of interventions to increase following format: 2. The applicant’s project team must • include significant expertise in research the use of evidence-based cancer control Maximum number of pages: Three pages in the area of evidence-based cancer practices. • preventive or treatment services Font size: 12-point unreduced Individuals Eligible to Become • Single spaced relevant to the project that will be Principal Investigators: Any individual • conducted. Paper size: 8.5 by 11 inches with the skills, knowledge, and • Page margin size: One inch a. For applications related to resources necessary to carry out the • colorectal cancer, the project team must Printed only on one side of page proposed research, and who meets the • Written in plain language, avoid have significant experience in eligibility criteria specified above for the jargon researching or promoting the use of Your LOI must contain the following cancer screening. principal investigator or co-principal information: b. For applications related to prostate investigator, is invited to work with his Page 1 cancer, the project team must have or her eligible applicant institution to • significant experience in researching or develop an application for support. Descriptive title of the proposed promoting shared decision making for Individuals from underrepresented research • cancer screening. racial and ethnic groups as well as Name, address, E-mail address, and c. For applications related to ovarian individuals with disabilities are always telephone number of the Principal cancer, the project team must have encouraged to apply for CDC programs. Investigator • Names of other key personnel significant experience in researching or Note: Title 2 of the United States Code • providing diagnosis and treatment of Participating institutions section 1611 states that an organization • Number and title of this Program ovarian cancer. described in section 501(c)(4) of the Internal Announcement (PA) Such expertise must be evidenced by Revenue Code that engages in lobbying a history of competitively funded peer activities is not eligible to receive Federal Pages 2–3 reviewed research in that area and funds constituting an award, grant, or loan. • A non-binding summary of the publication of the outcomes from this proposed project, which will be used in research in peer reviewed journals. planning for peer review of the
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applications. The summary should are listed in section VI.2. Administrative Awards will not allow reimbursement include information about the area of and National Policy Requirements. of pre-award costs. research interest (colorectal cancer IV.3. Submission Dates and Times IV.6. Other Submission Requirements screening, prostate cancer shared decision making, or researching or LOI Deadline Date: March 26, 2004. LOI Submission Address: Submit your providing diagnosis and treatment of Application Deadline Date: May 10, LOI by express mail or delivery service ovarian cancer), the communities with 2004. to: Technical Information which the investigators will collaborate, Explanation of Deadlines: LOIs or Management—PA# 04087, CDC the community intervention(s), and the Applications must be received in the Procurement and Grants Office, 2920 basic study design. CDC Procurement and Grants Office by Brandywine Road, Atlanta, GA 30341. Application: Follow the PHS 398 4 p.m. Eastern Time on the deadline LOI’s may not be submitted application instructions for content and date. If you send your LOI or electronically at this time. formatting of your application. For application by the United States Postal Application Submission Address: further assistance with the PHS 398 Service or commercial delivery service, Submit the original and five hard copies application form, contact PGO–TIM staff you must ensure that the carrier will be of your application by express mail or at 770–488–2700, or contact GrantsInfo, able to guarantee delivery of the LOI or delivery service to: Technical Telephone (301)435–0714, E-mail: application by the closing date and Information Management—PA# 04087, [email protected]. time. If CDC receives your LOI or CDC Procurement and Grants Office, Your research plan should address application after closing due to: (1) 2920 Brandywine Road, Atlanta, GA activities to be conducted over the Carrier error, when the carrier accepted 30341. entire project period. It should also the package with a guarantee for Applications may not be submitted describe an effective and well-defined delivery by the closing date and time, or electronically at this time. working relationship between the (2) significant weather delays or natural V. Application Review Information researchers and the partnering disasters, you will be given the community or communities (of health opportunity to submit documentation of V.1. Criteria care providers, insurers, or plans) in the carriers guarantee. If the which these partnering communities are The goals of CDC-supported research documentation verifies a carrier active participants with the researcher are to advance the understanding of problem, CDC will consider the LOI or in the research process. The research biological systems, improve the control application as having been received by application should also include a clear and prevention of disease and injury, the deadline. statement of the roles of the community and enhance health. In their written participants. In addition, be sure to This announcement is the definitive comments, reviewers will be asked to address the criteria that will be used to guide on application submission evaluate the application in order to review your application. These criteria address and deadline. It supersedes judge the likelihood that the proposed are listed at V. Application Review information provided in the application research will have a substantial impact Information. instructions. If your application does on the pursuit of these goals. You are required to have a Dun and not meet the deadline above, it will not The scientific review group will Bradstreet Data Universal Numbering be eligible for review, and will be address and consider each of the System (DUNS) number to apply for a discarded. You will be notified that following criteria in assigning the grant or cooperative agreement from the your application did not meet the application’s overall score, weighting Federal government. Your DUNS submission requirements. them as appropriate for each number must be entered on line 11 of CDC will not notify you upon receipt application. The application does not the face page of the PHS 398 application of your LOI or application. If you have need to be strong in all categories to be form. The DUNS number is a nine-digit a question about the receipt of your LOI judged likely to have major scientific identification number, which uniquely or application, first contact your courier. impact and thus deserve a high priority identifies business entities. Obtaining a If you still have a question, contact the score. For example, an investigator may DUNS number is easy and there is no PGO–TIM staff at: 770–488–2700. Before propose to carry out important work charge. To obtain a DUNS number, calling, please wait two to three days that by its nature is not innovative, but access http:// after the LOI or application deadline. is essential to move a field forward. www.dunandbradstreet.com or call 1– This will allow time for LOIs or The criteria are as follows: 866–705–5711. For more information, applications to be processed and logged. Measures of Effectiveness: You are required to provide measures of see the CDC web site at: http:// IV.4. Intergovernmental Review of effectiveness that will demonstrate the www.cdc.gov/od/pgo/funding/ Applications pubcommt.htm. accomplishment of the various This PA uses just-in-time concepts. It Executive Order 12372 does not apply identified objectives of the grant. also uses the modular budgeting as well to this program. Measures of effectiveness must relate to as non-modular budgeting formats. See IV.5. Funding Restrictions the performance goals stated in the http://grants.nih.gov/grants/funding/ ‘‘Purpose’’ section of this modular/modular.htm for additional Restrictions, which must be taken into announcement. Measures must be guidance on modular budgets. account while writing your budget, are objective and quantitative, and must Specifically, if you are submitting an as follows: measure the intended outcome. These application with direct costs in each • Construction costs and pieces of measures of effectiveness must be year of $250,000 or less, use the equipment costing more than $10,000. submitted with the application and will modular budget format. Otherwise, If you are requesting indirect costs in be an element of evaluation. follow the instructions for non-modular your budget, you must include a copy Significance: Does this study address budget research grant applications. of your indirect cost rate agreement. If an important problem? If the aims of the Additional requirements that may your indirect cost rate is a provisional application are achieved, how will require you to submit additional rate, the agreement should be less than scientific knowledge be advanced? What documentation with your application 12 months of age. will be the effect of these studies on the
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concepts or methods that drive this and the partnering community or V.2. Review and Selection Process field? communities (of health care providers, Applications will be reviewed for Approach: Are the conceptual or one or more insurers or plans) in completeness by the Procurement and framework, design, methods, and which these partnering communities are Grants Office (PGO), and for analyses adequately developed, well- active participants with the researchers responsiveness by PHPPO. Incomplete integrated, and appropriate to the aims in the research process. Reviewers will applications and applications that are of the project? Does the applicant refer to both the research plan of the non-responsive to the eligibility criteria acknowledge potential problem areas application and Letters of Support will not advance through the review and consider alternative methods? (Section III.3.) from the community. process. Applicants will be notified that Innovation: Does the project employ 4. The development, implementation, their application did not meet novel concepts, approaches or methods? and maintenance of an annual Are the aims original and innovative? submission requirements. information-exchange program between Applications that are complete and Does the project challenge existing the institutional researchers and the responsive to the Program paradigms or develop new community members (even if the Announcement will be evaluated for methodologies or technologies? institutional researchers are also scientific and technical merit by an Investigator: Is the investigator community members) is required. This appropriate peer review group or charter appropriately trained and well suited to information-exchange program must study section convened by PHPPO in carry out this work? Is the work describe the project’s current level of accordance with Department of Health proposed appropriate to the experience community input and involvement, its and Human Services requirements, and level of the principal investigator and progress in accomplishing its objectives, according to the review criteria listed other researchers? Does the principal and a summary of the relevant findings above. As part of the initial merit investigator have significant and the research has produced. review, all applications may: successful experience in conducting Documentation of this program must be • Undergo a process in which only community intervention research with in the form of annual reports that use those applications deemed to have the health plans, health insurers, and/or plain language, as specified by Section highest scientific merit, generally the health care providers? Does the project 508 of the Workforce Rehabilitation Act, top half of the applications under team have expertise in research in the are easily comprehendible, and readily review, will be discussed and assigned area of evidence-based cancer accessible to Community Members. a priority score. preventive or treatment services in Applicant’s budgets must reflect the • Receive a written critique which the project will be conducted (in cost required for their information- summarizing the discussion of the increasing cancer screening use, for exchange program. (5) The proposed research must be review panel. colorectal cancer projects; in shared • Receive a second level review by judged by the reviewers as likely to have decision making for cancer screening, the Secondary Review Panel to be a substantial impact on the pursuit of for prostate projects; and in diagnosis appointed by CDC. the project’s goals. and treatment of ovarian cancer, for Award Criteria: Criteria that will be Protection of Human Subjects from ovarian cancer projects)? used to make award decisions include: Research Risks: Does the application Environment: Does the scientific • Scientific merit (as determined by adequately address the requirements of environment in which the work will be peer review) done contribute to the probability of Title 45 CFR part 46 for the protection • Availability of funds success? Do the proposed experiments of human subjects? This will not be • Programmatic priorities take advantage of unique features of the scored; however, an application can be • Recommendations by the scientific environment or employ useful disapproved if the research risks are Secondary Review Panel collaborative arrangements? Is there sufficiently serious and protection evidence of institutional support? against risks is so inadequate as to make V.3. Anticipated Announcement and Additional Review Criteria: In the entire application unacceptable. Award Dates addition to the above criteria, the Inclusion of Women and Minorities in September 1, 2004. following items will be considered in Research: Does the application the determination of scientific merit and adequately address the CDC Policy VI. Award Administration Information priority score: requirements regarding the inclusion of VI.1. Award Notices 1. Study design and methods used for women, ethnic, and racial groups in the the proposed community intervention proposed research? This includes: (1) Successful applicants will receive a research must be of sufficient quality to The proposed plan for the inclusion of Notice of Grant Award (NGA) from the qualify for inclusion in evidence-based both sexes and racial and ethnic CDC Procurement and Grants Office. reviews conducted for the Guide to minority populations for appropriate The NGA shall be the only binding, Community Preventive Services. Those representation; (2) The proposed authorizing document between the quality criteria are described in an early justification when representation is recipient and CDC. The NGA will be Community Guide publication in the limited or absent; (3) A statement as to signed by an authorized Grants American Journal of Preventive whether the design of the study is Management Officer, and mailed to the Medicine. adequate to measure differences when recipient fiscal officer identified in the 2. Proposed screening tests, informed warranted; and (4) A statement as to application. decision making interventions, whether the plans for recruitment and Unsuccessful applicants will receive treatments, and diagnostic services, outreach for study participants include notification of the results of the must be consistent with systematic the process of establishing partnerships application review by mail. reviews, recommendations and with community(ies) and recognition of VI.2. Administrative and National definitions, as noted in the definitions mutual benefits. Policy Requirements section above. Budget: The reasonableness of the 3. The applicant must demonstrate an proposed budget and the requested 45 CFR Part 74 and Part 92 effective and well-defined working period of support in relation to the For more information on the Code of relationship between the researchers proposed research. Federal Regulations, see the National
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Archives and Records Administration at 3. Final financial and performance 7. Grimshaw JM, Shirran L, Thomas R, et the following Internet address: http:// reports, no more than 90 days after the al. Changing provider behavior: an overview www.access.gpo.gov/nara/cfr/cfr-table- end of the project period. of systematic reviews of interventions. search.html These reports must be mailed to the Medical Care 2001; 39(8 Suppl 2):112–45. 8. Ellis P, Robineson P, Ciliska D, et al. The following additional Grants Management Specialist listed in Diffusion and dissemination of evidence- requirements apply to this project: the ‘‘Agency Contacts’’ section of this based cancer control interventions. Evidence • AR–1 Human Subjects announcement. Report/Technology Assessment Number 79. Requirements VII. Agency Contacts (Prepared by Oregon Health and Science • AR–2 Requirements for Inclusion University under Contract No. 290–97–0017.) of Women and Racial and Ethnic For general questions about this AHRQ Publication No. 03-E033 Rockville, Minorities in Research announcement, contact: Technical MD: Agency for Healthcare Research and • Information Management Section, CDC Quality. May 2003. Available at: http:// AR–6 Patient Care www.ahrq.gov/clinic/tp/cancontp.htm. • AR–8 Public Health System Procurement and Grants Office, 2920 Brandywine Road, Atlanta, GA 30341, 9. Glasgow RE, Bull SS, Gillett C, et al. Reporting Requirements Behavior change in health care settings. A • AR–10 Smoke-Free Workplace Telephone: 770–488–2700. review of recent reports with an emphasis on Requirements For scientific/research issues, contact: external validity. American Journal of • AR–11 Healthy People 2010 Ralph Coates, Ph.D., Extramural Project Preventive Medicine 2002;23:62–9. • AR–12 Lobbying Restrictions Officer, Centers for Disease Control and 10. Glasgow RE, Lichtenstein E, Marcus • AR–13 Prohibition on Use of CDC Prevention, NCCDPHP/DCPC/OD, 4770 AC. Why don’t we see more translation of health promotion research to practice? Funds for Certain Gun Control Buford Highway, NE, MS K–52, Atlanta, GA 30341–3717, Telephone: 770–488– Rethinking the efficacy-to-effectiveness Activities transition. American Journal of Public Health • AR–14 Accounting System 3003, E-mail: [email protected]. For questions about peer review, 2003;93:1261–67. Requirements 11. U.S. Preventive Services Task Force. • AR–15 Proof of Non-Profit Status contact: Joan Karr, Ph.D., Scientific Guide to Clinical Preventive Services. • AR–16 Security Clearance Review Administrator, Centers for Available at: http://www.ahrq.gov/clinic/ Requirement Disease Control and Prevention, cps3dix.htm • AR–22 Research Integrity PHPPO/OD/ESA, 4770 Buford Highway, 12. Ovarian cancer: screening, treatment, • AR–23 States and Faith-Based NE (MS K–38), Atlanta, GA 30341, and followup. NIH Consensus Statement Telephone number: 770–488–2597, Fax: 1994 Apr 5–7;12(3)1–30. Available at: http:/ Organizations _ • 770–488–8200, E-mail address: /consensus.nih.gov/cons/096/096 intro.htm AR–24 Health Insurance 13. NIH Consensus Development Panel on Portability and Accountability Act [email protected]. For financial, grants management, or Ovarian Cancer. Ovarian cancer: Screening, Requirements treatment, and follow-up. JAMA budget assistance, contact: Sharon • AR–25 Release and Sharing of 1995;273(6):491–7. Robertson, Grants Management Data 14. PDQ (Physician Data Query System) of Specialist, CDC Procurement and Grants Additional information on these the National Cancer Institute, National Office, 2920 Brandywine Road, Atlanta, requirements can be found on the CDC Institutes of Health, Bethesda, MD. Available GA 30341, Telephone: 770–488–2748, at: http://www.nci.nih.gov/cancerinfo/pdq/ web site at the following Internet E-mail: [email protected]. adulttreatment address: http://www.cdc.gov/od/pgo/ 15. Ovarian cancer: screening, treatment, funding/ARs.htm. VIII. Other Information and followup. NIH Consensus Statement VI.3. Reporting References 1994 Apr 5–7;12(3) p. 15. Available at: http:/ /consensus.nih.gov/cons/096/096_intro.htm If awarded, you must provide CDC 1. Curry SJ, Byers T, Hewitt M (eds). 16. U.S. Preventive Services Task Force. with an original, plus two hard copies Fulfilling the potential of cancer prevention Colorectal Cancer—Screening. Summary of of the following reports: and early detection. Institute of Medicine. Recommendations. Supporting Documents. 1. Interim progress report, (use form National Academy Press, Washington, DC, Release date: July, 2002. Available at: http:/ PHS 2590, OMB Number 0925–0001, 2003. Available at: http://www.iom.edu/ /www.ahrq.gov/clinic/uspstf/uspscolo.htm report.asp?id=5402. 17. Briss P, Rimer B, Reilley B, et al. rev. 5/2001 as posted on the CDC Web 2. Hewitt M, Simone JV (eds). Ensuring Promoting Informed Decision Making About site) no less than 90 days before the end quality cancer care. Institute of Medicine. Cancer Screening: What Can Communities of the budget period. This annual National Academy Press, Washington, DC, and Health Systems Accomplish? Conceptual progress report will serve as your non- 1999. Available at: http://www.iom.edu/ Background and a Systematic Review. competing continuation application, report.asp?id=5593. American Journal of Preventive Medicine and must contain the following 3. Haynes MA, Smedley BD, (eds). The 2004; 26(1): 67–90. Available at: http:// elements: Unequal Burden of Cancer. National www.thecommunityguide.org/cancer/ a. Current Budget Period Activities Academy Press, Washington, DC, 1999. default.htm Objectives. Available at: http://books.nap.edu/catalog/ 18. Sheridan SL, Harris RP, Woolf SH, for 6377.html. the Shared Decisionmaking Workgroup, b. Current Budget Period Financial 4. U.S. Department of Health and Human Third U.S. Preventive Services Task Force. Progress. Services. Strategic Plan. Draft 14, October Current methods of the U.S. Preventive c. New Budget Period Program 2003. Available at: http://www.aspe.hhs.gov/ Services Task Force: A review of the process. Proposed Activity Objectives. hhsplan/. Shared decision making about screening and d. Budget. 5. Executive Office of the President and the chemoprevention. A suggested approach e. Measures of Effectiveness Progress U.S. Department of Health and Human from the U.S. Preventive Services Task Force. Report. Services. HealthierUS Initiative. Prevention: American Journal of Preventive Medicine f. Annual Report from Information- Get Preventive Screening. Available at: http:/ 2004;26(1):67–80. Available at: http:// /www.healthierus.gov/. www.ahrq.gov/clinic/3rduspstf/shared/ Exchange Program. 6. U.S. Department of Health and Human sharedba.htm g. Additional Requested Information. Services. ‘‘Healthy People 2010.’’ 19. U.S. Preventive Services Task Force. 2. Financial status report no more Washington, DC: U.S. Government Printing Prostate Cancer—Screening. Summary of than 90 days after the end of the budget Office, 2000. Available at: http:// Recommendations. Supporting Documents. period. www.health.gov/healthypeople. Release date: December, 2002. Available at:
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http://www.ahrq.gov/clinic/uspstf/ Services, published September, 2003. information collection, and analysis uspsprca.htm (See: http://www.cdc.gov/nceh/ehs/ instruments. 20. National Institutes of Health (NIH). Docs/NationalStrategy2003.pdf) This • Assist awardees with background Final NIH Statement on Sharing Research program addresses the ‘‘Healthy People information and in forming Data. February 26, 2003. Notice: NOT-OD– 2010’’ focus areas of Environmental collaborative interactions. 03–032. Available at: http://grants.nih.gov/ • grants/guide/notice-files/NOT-OD–03– Health, Public Health Infrastructure, Assist awardees with preparation, 032.html and Education and Community-Based review and clearance of manuscripts. 21. Section 504 of the Rehabilitation Act, Programs. • Facilitate interaction among 29 U.S.C. 794d. Workforce Investment Act of Measurable outcomes of the program awardees and integration of activities 1998. Available at: http://www.usdoj.gov/crt/ will be in alignment with the following into state and local environmental 508/508law.html performance goal for the National public health programs. 22. Briss P, Zaza S, Pappaioanou M, et al. Center for Environmental Health • Evaluate effectiveness and quality Developing an evidence-based Guide to (NCEH): Increase the capacity of state of environmental health services related Community Preventive Services. American and local health departments to deliver to awardees activities. Journal of Preventive Medicine 2000; 18(1S): environmental health services to their 35–44. Available at: http:// II. Award Information www.thecommunityguide.org/pubs/ communities. default.htm Activities: The Awardees will assist Type of Award: Cooperative state and local health departments in Agreement. CDC involvement in this Dated: March 4, 2004. increasing or enhancing environmental program is listed in the Activities Sandra R. Manning, health capacity by providing technical Section above. Director, Procurement and Grants Office, assistance in the areas of: (1) Outreach; Fiscal Year Funds: 2004. Centers for Disease Control and Prevention. (2) health hazard evaluations/ Approximate Total Funding: [FR Doc. 04–5433 Filed 3–10–04; 8:45 am] investigations; and (3) program $800,000. BILLING CODE 4163–18–P evaluation and training. These activities Approximate Number of Awards: Five will result in the implementation of total awards will be made based on one comprehensive state-of-the-art per region. The regions are designated DEPARTMENT OF HEALTH AND environmental health services, e.g., as follows: HUMAN SERVICES programs and/or interventions that • Northeast (ME, VT, NH, MA, RI, CT, positively impact air quality, water, Centers for Disease Control and NY, NJ, PA, DE, MD, VA, District of waste management, integrated pest Prevention Columbia) management, and/or food safety. • Southeast (NC, SC, KY, TN, GA, FL, Regional Academic Environmental Awardees should engage in such AL, MS, AR, LA, U.S. Virgin Islands, Public Health Centers activities as described below: Puerto Rico) • Provide technical assistance to state • Midwest (WV, MI, OH, IN, WI, IL, Announcement Type: New. and local environmental public health MN, IA, MO, KS) Funding Opportunity Number: 04114. departments or their chosen entities in • Northwest (ND, SD, NE, MT, WY, ID, Catalog of Federal Domestic the realm of health hazard evaluations WA, OR, AK) Assistance Number: 93.283. and investigations. • Southwest (OK, TX, CO, NM, UT, AZ, Key Dates: Letter of Intent Deadline: • Collaborate with state and local NV, CA, HI, Pacific Islands) April 12, 2004. programs to assist them in evaluating Approximate Average Award: Application Deadline: May 10, 2004. their programs, including cost benefit $160,000 (This amount is for the first analysis, prevention effectiveness I. Funding Opportunity Description 12-month budget period, and includes analysis, and monitoring and both direct and indirect costs). Authority: Section 301 and 317 of the responding to the environmental Floor of Award Range: None. antecedents of disease occurrence. Public Health Service Act, [42 U.S.C. 241 and • Ceiling of Award Range: $200,000. 247(b)], as amended. Train and educate state and local Anticipated Award Date: September environmental public health department Purpose: The purpose of the program 1, 2004. staff, where necessary or requested by Budget Period Length: 12 months. is to facilitate the development of an environmental public health department integrated national system for academic Project Period Length: Three years. staff, using already developed Throughout the project period, CDC’s institutions to assist and support state curriculum, to deliver environmental and local public health departments, commitment to continuation of awards public health services utilizing the will be conditioned on the availability and tribal health agencies in the framework of the Ten Essential Public delivery of environmental health of funds, evidence of satisfactory Health Services, the Ten Essential progress by the recipient (as services. This announcement will fund Environmental Services, Core five academic institutions to serve as documented in required reports), and Competencies of Effective Practice of the determination that continued regional centers (one in each of the Environmental Health, and CDC’s A following regions: Northeast, Southeast, funding is in the best interest of the National Strategy to Revitalize Federal Government. Midwest, Northwest and Southwest). Environmental Public Health Services. The Centers will support environmental • Disseminate findings. III. Eligibility Information public health activities utilizing a In a cooperative agreement, CDC staff III.1. Eligible Applicants framework that is based on the Ten is substantially involved in the program Essential Public Health Services, the activities, above and beyond routine Applications may be submitted by: Ten Essential Environmental Services, grant monitoring. • Academic institutions, including Core Competencies of Effective Practice CDC Activities for this program are as universities and colleges with of Environmental Health (See follows: accredited undergraduate or graduate Addendum), and the Centers for Disease • Provide technical assistance and environmental health programs. Control’s (CDC) A National Strategy to consultation to the award recipient to • Accredited Schools of Public Revitalize Environmental Public Health refine the project plan, data and Health.
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III.2. Cost Sharing or Matching • Font size: 12-point unreduced. • Describe the project’s evaluation • Matching funds are not required for Single spaced. plan to measure the process and • Paper size: 8.5 by 11 inches. this program. outcomes. • Page margin size: One inch. • Budget justifications. III.3. Other • Printed only on one side of page. Additional information may be • Written in plain language, avoid If you request a funding amount included in the application appendices. jargon. greater than the ceiling of the award The appendices will not be counted Your LOI must contain the following toward the narrative page limit. This range, your application will be information: considered non-responsive and will not • additional information includes: Name, address, and telephone • Up to 30 pages of appendices may be entered into the review process. You number for key contact. will be notified that your application • be included in the application. This Brief description of the proposed may include: Curriculum Vitaes, did not meet the submission project. requirements. Resumes, Organizational Charts, Letters This announcement is for submission Application of Support, etc. of proposals that are not research. If You must include a project narrative You are required to have a Dun and your application contains research, it with your application forms. Your Bradstreet Data Universal Numbering will be considered non-responsive to narrative must be submitted in the System (DUNS) number to apply for a the announcement. following format: grant or cooperative agreement from the If your application is incomplete or • Maximum number of pages: 25. Federal government. The DUNS number non-responsive to the requirements If your narrative exceeds the page is a nine-digit identification number, listed below, it will not be entered into limit, only the first pages which are which uniquely identifies business the review process. You will be notified within the page limit will be reviewed. entities. Obtaining a DUNS number is that your application did not meet the • Font size: 12 point unreduced. easy and there is no charge. To obtain submission requirements. • Double spaced. a DUNS number, access http:// Eligibility is limited to academic • Paper size: 8.5 by 11 inches. www.dunandbradstreet.com or call 1– institutions because of their expertise • Page margin size: One inch. 866–705–5711. and resources in environmental public • Printed only on one side of page. For more information, see the CDC health that is available to support state • Held together only by rubber bands Web site at: http://www.cdc.gov/od/pgo/ and local environmental public health or metal clips; not bound in any other funding/pubcommt.htm. programs. Additionally, academic way. If your application form does not have institutions have provided state and Your narrative should address a DUNS number field, please write your local health departments, environmental activities to be conducted over the DUNS number at the top of the first public health agencies, and other entire project period, and must include page of your application, and/or include the following items in the order listed: your DUNS number in your application environmental health organizations • with the trained workforce needed to Describe your organizational cover letter. resources and structure. Additional requirements that may deliver environmental health services. • Describe how the project will be require you to submit additional Note: Title 2 of the United States Code administered, including job descriptions section 1611 states that an organization documentation with your application for all project positions. are listed in section ‘‘VI.2. described in section 501(c)(4) of the Internal • Describe the project’s operational Revenue Code that engages in lobbying Administrative and National Policy activities is not eligible to receive Federal plan to function as a regional center. Requirements.’’ funds constituting an award, grant, or loan. The operational plan should include the following components: (1) Description IV.3. Submission Dates and Times IV. Application and Submission of the identified environmental health LOI Deadline Date: April 12, 2004. Information conditions within your region; (2) CDC requests that you send a LOI if description of the resources available to you intend to apply for this program. IV.1. Address To Request Application support state and local health Package Although the LOI is not required, not departments in addressing binding, and does not enter into the To apply for this funding opportunity environmental public health issues; (3) review of your subsequent application, use application form PHS 5161. description of the proposed activities to the LOI will be used to gauge the level Application forms and instructions are support state or local environmental of interest in this program, and to allow available on the CDC Web site, at the public health programs; (4) knowledge CDC to plan the application review. following Internet address: http:// and ability to educate and/or implement Application Deadline Date: May 10, www.cdc.gov/od/pgo/forminfo.htm. the ten essential environmental health 2004. If you do not have access to the and/or public health services, core Explanation of Deadlines: Internet, or if you have difficulty function, and CDC strategy as they relate Applications must be received in the accessing the forms on-line, you may to proposed activities; (5) description of CDC Procurement and Grants Office by contact the CDC Procurement and current and/or future partnerships with 4 p.m. Eastern Time on the deadline Grants Office Technical Information environmental public health programs date. If you send your application by the Management Section (PGO–TIM) staff and their need for assistance and United States Postal Service or at: 770–488–2700. Application forms support related to the delivery of commercial delivery service, you must can be mailed to you. environmental health services; (6) long ensure that the carrier will be able to IV.2. Content and Form of Submission and short term objectives, timelines and guarantee delivery of the application by schedules for completion, and expected the closing date and time. If CDC Letter of Intent (LOI) long and short term measurable receives your application after closing Your LOI must be written in the outcomes; and (7) methodology for due to: (1) Carrier error, when the following format: sustainability of activities or carrier accepted the package with a • Maximum number of pages: One interventions beyond the funded period guarantee for delivery by the closing page. of the cooperative agreement. date and time, or (2) significant weather
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delays or natural disasters, you will be V. Application Review Information d. The extent to which the proposed given the opportunity to submit activities or the project can be sustained V.1. Criteria documentation of the carriers guarantee. beyond the funded period. If the documentation verifies a carrier You are required to provide measures e. The extent to which the intent and problem, CDC will consider the of effectiveness that will demonstrate desired outcomes for the proposed application as having been received by the accomplishment of the various activities can be succinctly stated. the deadline. identified objectives of the cooperative agreement. Measures of effectiveness 4. Program Evaluation (15 Points) This program announcement is the must relate to the performance goals definitive guide on application a. The evaluation plan should stated in the ‘‘Purpose’’ section of this submission address and deadline. It describe useful and appropriate announcement. Measures must be supersedes information provided in the strategies and approaches to monitor objective and quantitative, and must application instructions. If your and improve the quality, effectiveness, measure the intended outcome. These and efficiency of the project. application does not meet the deadline measures of effectiveness must be above, it will not be eligible for review, submitted with the application and will b. The extent to which the applicant and will be discarded. You will be be an element of evaluation. proposes to measure the progress and notified that your application did not Your application will be evaluated the overall impact of the project in meet the submission requirements. against the following criteria: terms of its contribution to improving CDC will not notify you upon receipt the delivery of environmental health of your application. If you have a 1. Coordination and Collaboration (25 services. Examples are: (1) The question about the receipt of your points) reduction of environmentally related application, first contact your courier. If The extent to which the applicant risk factors known to contribute to you still have a question, contact the documents its collaboration with the disease; (2) decreases in morbidity and PGO–TIM staff at: 770–488–2700. Before community to implement the objectives mortality; and/or (3) the impact on calling, please wait two to three days of the project. This includes describing incidence and prevalence of after the application deadline. This will its relationship with environmental environmentally induced illness and allow time for applications to be public health departments and other disease. processed and logged. environmental agencies, academia, and 5. Implementation of CDC’s Strategy To community-based organizations as Revitalize Environmental Public Health IV.4. Intergovernmental Review of evidenced by documenting specific Services (10 Points) Applications environmental public health issues or The extent to which the applicant’s Executive Order 12372 does not apply needs, letters of support, memoranda of operation plan has incorporated to this program. agreement, and other documented evidence. The applicants may include components of CDC’s Strategy to IV.5. Funding Restrictions up to ten letters of commitment (dated Revitalize Environmental Public Health within the last three months) from key Services into developing an intervention Funding restrictions, which must be partners, participants, and community or enhancing capacity. Specifically, the taken into account while writing your leaders that detail their participation in centers should demonstrate the ability budget, are as follows: None. and support of the proposed activities. to assist communities in implementing If you are requesting indirect costs in all ten of the essential environmental 2. Understanding of the Problem (20 your budget, you must include a copy health and/or public health services, points) of your indirect cost rate agreement. If and core competencies. your indirect cost rate is a provisional The extent to which the applicant 6. Project Management and Staffing (10 rate, the agreement should be less than understands the public health, social Points) 12 months of age. and economic consequences of Guidance for completing your budget inadequate environmental public health The extent to which the applicant can be found on the CDC Web site, at service delivery in their region based documents skills, ability, and the following Internet address: http:// upon health and demographic experience of key staff who will be www.cdc.gov/od/pgo/funding/ indicators. This includes factors based responsible for developing, budgetguide.htm on disease burden by age, gender and implementing, and carrying out the racial/ethnic groups, mortality rates, requirements of the project. Specifically, IV.6. Other Submission Requirements incidence, program experience, existing the applicant should: describe staff roles capacity, and infrastructure. in the development and implementation LOI Submission Address: Submit of the project, their specific 3. Objectives and Methods (20 points) your LOI by express mail, delivery responsibilities, and their level of effort service, fax, or E-mail to: Daneen a. The extent to which the applicant and time commitment. If necessary, Farrow-Collier, CDC/NCEH, 4770 has developed sound, feasible objectives assurances should be provided to Buford Highway, F–28, Atlanta, GA that are consistent with the activities demonstrate the applicant’s ability to 30341, Telephone: 770–488–4945, Fax: described in this announcement and are fill key positions though its personnel 770–488–7310, E-mail: farrow- specific, measurable and time-framed. hiring system within a reasonable [email protected]. b. The extent to which the applicant amount of time after receiving funds. Application Submission Address: describes the specific activities and 7. Budget Justification (not scored) Submit your application by mail or methods to achieve each objective. express delivery service to: Technical c. The extent to which the proposed The extent to which the budget is Information Management—PA04114, timeline and schedules are feasible. The clearly explained, adequately justified, CDC Procurement and Grants Office, timeline should include a tentative and is reasonable and consistent with 2920 Brandywine Road, Atlanta, GA work plan for the duration of the the stated objectives and planned 30341. project. activities.
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V.2. Review and Selection Process VI.3. Reporting Requirements DEPARTMENT OF HEALTH AND HUMAN SERVICES Applications will be reviewed for You must provide CDC with an completeness by the Procurement and original, plus two hard copies of the Centers for Disease Control and Grants Office (PGO) staff and for following reports: Prevention responsiveness by NCEH. Incomplete 1. Interim progress report, no less applications and applications that are Study Team for the Los Alamos than 90 days before the end of the non-responsive to the eligibility criteria Historical Document Retrieval and budget period The progress report will will not advance through the review Assessment Project process. Applicants will be notified that serve as your non-competing their application did not meet continuation application, and must The Centers for Disease Control and submission requirements. contain the following elements: Prevention (CDC) announces the An objective review panel will a. Current Budget Period Activities following meeting. evaluate complete and responsive Objectives. Name: Public Meeting of The Study applications according to the criteria Team for the Los Alamos Historical b. Current Budget Period Financial listed in the ‘‘V.1. Criteria’’ section Document Retrieval and Assessment above. Progress. Project. In addition, the following factor may c. New Budget Period Program Time and Date: 5 p.m.–7 p.m. affect the funding decision: The Proposed Activity Objectives. (Mountain Time), March 30, 2004. Place: Cities of Gold Hotel in geographic location of applicant d. Detailed Line-Item Budget and Pojoaque (15 miles north of Santa Fe on Justification. VI. Award Administration Information U.S. 84/285), 10–B Cities of Gold Road, VI.1. Award Notices e. Additional Requested Information. Santa Fe, New Mexico 87506, telephone f. Measures of Effectiveness. 505–455–0515. Successful applicants will receive a Status: Open to the public, limited 2. Financial status report and annual Notice of Grant Award (NGA) from the only by the space available. The meeting progress report, no more than 90 days CDC Procurement and Grants Office. room accommodates approximately 100 The NGA shall be the only binding, after the end of the budget period. people. authorizing document between the 3. Final financial and performance Background: Under a Memorandum recipient and CDC. The NGA will be reports, no more than 90 days after the of Understanding (MOU) signed in signed by an authorized Grants end of the project period. December 1990 with the Department of Management Officer, and mailed to the Energy (DOE) and replaced by MOUs recipient fiscal officer identified in the These reports must be sent to the Grants Management Specialist listed in signed in 1996 and 2000, the application. Department of Health and Human Unsuccessful applicants will receive the ‘‘Agency Contacts’’ section of this announcement. Services (HHS) was given the notification of the results of the responsibility and resources for application review by mail. VII. Agency Contacts conducting analytic epidemiologic investigations of residents of VI.2. Administrative and National For general questions about this Policy Requirements communities in the vicinity of DOE announcement, contact: Technical facilities, workers at DOE facilities, and 45 CFR Part 74 and Part 92 Information Management Section, CDC other persons potentially exposed to For more information on the Code of Procurement and Grants Office, 2920 radiation or to potential hazards from Federal Regulations, see the National Brandywine Road, Atlanta, GA 30341, non-nuclear energy production use. Archives and Records Administration at Telephone: 770–488–2700. HHS delegated program responsibility the following Internet address: http:// For program technical assistance, to CDC. www.access.gpo.gov/nara/cfr/cfr–table- contact: Daneen Farrow-Collier, Project In addition, a memo was signed in search.html Officer, CDC/NCEH, 4770 Buford October 1990 and renewed in November The following additional Highway, Atlanta, GA 30341, 1992, 1996, and in 2000, between the requirements apply to this project: Telephone: 770–488–4945, Fax: 770– Agency for Toxic Substances and Disease Registry (ATSDR) and DOE. The • AR–1 Human Subjects 488–7310, Email: farrow- MOU delineates the responsibilities and Requirements [email protected]. • procedures for ATSDR’s public health AR–2 Requirements for Inclusion of For financial, grants management, or activities at DOE sites required under Women and Racial and Ethnic budget assistance, contact: Mildred sections 104, 105, 107, and 120 of the Minorities in Research Garner, Grants Management Specialist, • Comprehensive Environmental AR–8 Public Health System CDC Procurement and Grants Office, Response, Compensation, and Liability Reporting Requirements • 2920 Brandywine Road, Atlanta, GA Act (CERCLA or ‘‘Superfund’’). These AR–9 Paperwork Reduction Act 30341, Telephone: 770–488–2745, E- activities include health consultations Requirements and public health assessments at DOE • mail: [email protected]. AR–10 Smoke-Free Workplace sites listed on, or proposed for, the Dated: March 4, 2004. Requirements Superfund National Priorities List and • AR–11 Healthy People 2010 Sandra R. Manning, at sites that are the subject of petitions • AR–12 Lobbying Restrictions Director, Procurement and Grants Office, from the public; and other health- • AR–25 Release and Sharing of Data Centers for Disease Control and Prevention. related activities such as epidemiologic Additional information on these [FR Doc. 04–5438 Filed 3–10–04; 8:45 am] studies, health surveillance, exposure requirements can be found on the CDC BILLING CODE 4163–18–P and disease registries, health education, web site at the following Internet substance-specific applied research, address: http://www.cdc.gov/od/pgo/ emergency response, and preparation of funding/ARs.htm. toxicological profiles.
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Purpose: This study group is charged Name: Citizens Advisory Committee on The Director, Management Analysis and with locating, evaluating, cataloguing, Public Health Service Activities and Services Office, has been delegated the and copying documents that contain Research at Department of Energy Sites: authority to sign Federal Register notices information about historical chemical or Savannah River Site Health Effects pertaining to announcements of meetings and Subcommittee (SRSHES). other committee management activities for radionuclide releases from facilities at Time and Date: 8 a.m.–3:30 p.m., April 6, both CDC and ATSDR. the Los Alamos National Laboratory 2004. Dated: March 5, 2004. since its inception. The purpose of this Place: Adam’s Mark Hotel Columbia, 1200 meeting is to review the goals, methods, Hampton Street, Columbia, South Carolina Alvin Hall, and schedule of the project, discuss 29201, telephone 803–771–7000, fax 803– Director, Management Analysis and Services progress to date, provide a forum for 254–2911. Office, Centers for Disease Control and community interaction, and serve as a Status: Open to the public, limited only by Prevention. vehicle for members of the public to the space available. The meeting room [FR Doc. 04–5444 Filed 3–10–04; 8:45 am] accommodates approximately 50 people. BILLING CODE 4163–18–P express concerns and provide advice to Background: Under a Memorandum of CDC. Understanding (MOU) signed in December Matters To Be Discussed: Agenda 1990 with DOE, and replaced by MOUs DEPARTMENT OF HEALTH AND items include a presentation from the signed in 1996 and 2000, the Department of HUMAN SERVICES National Center for Environmental Health and Human Services (HHS) was given the responsibility and resources for Health (NCEH) and its contractor Centers for Medicare and Medicaid regarding the draft Interim Report of the conducting analytic epidemiologic investigations of residents of communities in Services project, the status of project work, and the vicinity of DOE facilities, workers at DOE [Document Identifier: CMS–10003, CMS– the outlook for continued CDC work at facilities, and other persons potentially 2728, and CMS–R–39] Los Alamos. There will be time for exposed to radiation or to potential hazards public input, questions, and comments. from non-nuclear energy production use. Agency Information Collection HHS delegated program responsibility to Agenda items are subject to change as Activities: Submission for OMB priorities dictate. CDC. In addition, a memo was signed in October Review; Comment Request Contact Person for Additional 1990 and renewed in November 1992, 1996, Agency: Centers for Medicare and Information: Phillip R. Green, Public and in 2000, between ATSDR and DOE. The Health Advisor, Radiation Studies MOU delineates the responsibilities and Medicaid Services, HHS. Branch, Division of Environmental procedures for ATSDR’s public health In compliance with the requirement Hazards and Health Effects, NCEH, CDC, activities at DOE sites required under of section 3506(c)(2)(A) of the 1600 Clifton Road, N.E. (MS–E39), sections 104, 105, 107, and 120 of the Paperwork Reduction Act of 1995, the Atlanta, GA 30333, telephone (404) Comprehensive Environmental Response, Centers for Medicare and Medicaid 498–1717, fax (404) 498–1811. Compensation, and Liability Act (CERCLA or Services (CMS) (formerly known as the ‘‘Superfund’’). These activities include health Health Care Financing Administration The Director, Management Analysis consultations and public health assessments and Services Office, has been delegated (HCFA), Department of Health and at DOE sites listed on, or proposed for, the Human Services, is publishing the the authority to sign Federal Register Superfund National Priorities List and at notices pertaining to announcements of sites that are the subject of petitions from the following summary of proposed meetings and other committee public; and other health-related activities collections for public comment. management activities for both CDC and such as epidemiologic studies, health Interested persons are invited to send ATSDR. surveillance, exposure and disease registries, comments regarding this burden health education, substance-specific applied estimate or any other aspect of this Dated: March 5, 2004. research, emergency response, and collection of information, including any Alvin Hall, preparation of toxicological profiles. of the following subjects: (1) The Director, Management Analysis and Services Purpose: This subcommittee is charged necessity and utility of the proposed Office, Centers for Disease Control and with providing advice and recommendations information collection for the proper to the Director, CDC, and the Administrator, Prevention. performance of the agency’s functions; [FR Doc. 04–5445 Filed 3–10–04; 8:45 am] ATSDR, regarding community concerns pertaining to CDC’s and ATSDR’s public (2) the accuracy of the estimated BILLING CODE 4163–18–P health activities and research at this DOE burden; (3) ways to enhance the quality, site. The purpose of this meeting is to utility, and clarity of the information to provide a forum for community interaction be collected; and (4) the use of DEPARTMENT OF HEALTH AND and serve as a vehicle for community automated collection techniques or HUMAN SERVICES concerns to be expressed as advice and other forms of information technology to recommendations to CDC and ATSDR. Centers for Disease Control and minimize the information collection Matters to be Discussed: Agenda items burden. Prevention include: a Report by Advanced Technologies and Laboratories International, Inc.; CDC 1. Type of Information Collection Citizens Advisory Committee on Public Presentation on Completed Dose Request: Extension of a currently Health Service Activities and Research Reconstruction Projects at Other Sites; and approved collection; Title of at Department of Energy (DOE) Sites: Update from the National Institute for Information Collection: Savannah River Site Health Effects Occupational Safefy and Health. Medicare+Choice Appeals Notices, Subcommittee (SRSHES) Agenda items are subject to change as ‘‘Notice of Denial of Medical Coverage’’, priorities dictate. ‘‘Notice of Denial Payment’; Form No.: In accordance with section 10(a)(2) of Contact Person for More Information: CMS–10003 (OMB# 0938–0829); Use: the Federal Advisory Committee Act Phillip Green, Executive Secretary, SRSHES, Section 1852(g)(1)(B) requires M+C Radiation Studies Branch, Division of (Pub. L. 92–463), the Centers for Disease Environmental Hazards and Health Effects, organizations to provide determinations Control and Prevention (CDC) and the National Center for Environmental Health, to deny coverage (i.e., medical services Agency for Toxic Substances and CDC, 1600 Clifton Road, NE., (E–39), Atlanta, or payment) in writing and include a Disease Registry (ATSDR) announce the Georgia 30333, telephone (404) 498–1800, fax statement in understandable language of following meeting. (404) 498–1811. the reasons for the denial and a
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description of the reconsideration and within 30 days of this notice directly to other for-profit; Number of appeals processes. These notices fulfill the OMB desk officer: OMB Human Respondents: 5000; Total Annual the statutory requirement.; Frequency: Resources and Housing Branch, Responses: 5000; Total Annual Hours: On occasion and other: distribution; Attention: Brenda Aguilar, New 750. Affected Public: Individuals or Executive Office Building, Room 10235, To obtain copies of the supporting households, business or other for-profit, Washington, DC 20503; Fax (202)395– statement and any related forms for the not-for-profit institutions; Number of 6929. proposed paperwork collections Respondents: 211; Total Annual Dated: March 4, 2004. referenced above, access CMS’s Web site Responses: 71,200; Total Annual Hours: John P. Burke, III, address at http://cms.hhs.gov/ 7,120. regulations/pra/default.asp, or E-mail 2. Type of Information Collection Paperwork Reduction Act Team Leader, CMS Reports Clearance Officer, Office of Strategic your request, including your address, Request: Revision of a currently Operations and Strategic Affairs, Division of phone number, OMB number, and CMS approved collection; Title of Regulations Development and Issuances. document identifier, to Information Collection: End Stage Renal [FR Doc. 04–5412 Filed 3–10–04; 8:45 am] [email protected], or call the Reports Disease Medical Evidence Report BILLING CODE 4120–03–P Clearance Office on (410) 786–1326. Medicare Entitlement and/or Patient Written comments and Registration and Supporting Regulations recommendations for the proposed in 42 CFR 405.2133; Form No.: CMS– DEPARTMENT OF HEALTH AND information collections must be mailed 2728 (OMB# 0938–0046); Use: This HUMAN SERVICES within 60 days of this notice directly to form captures the necessary medical the CMS Paperwork Clearance Officer information required to determine Centers for Medicare and Medicaid designated at the following address: Medicare eligibility of an end stage Services CMS, Office of Strategic Operations and renal disease claimant. It also captures [Document Identifier: CMS–R–297] Regulatory Affairs, Division of the specific medical data required for Regulations Development and research and policy decisions on this Agency Information Collection Issuances,Attention: Melissa Musotto, population as required by law.; Activities: Proposed Collection; Room C5–14–03, 7500 Security Frequency: weekly, monthly, quarterly, Comment Request Boulevard, Baltimore, Maryland 21244– semi-annually and annually; Affected 1850. Public: Individuals or households, AGENCY: Centers for Medicare and business or other for-profit, not-for- Medicaid Services, HHS. Dated: March 4, 2004. profit institutions; Number of In compliance with the requirement John P. Burke III, Respondents: 100,000; Total Annual of section 3506(c)(2)(A) of the Paperwork Reduction Act Team Leader, Responses: 100,000; Total Annual Paperwork Reduction Act of 1995, the Office of Strategic Operations and Strategic Hours: 75,000. Centers for Medicare and Medicaid Affairs, Division of Regulations Development 3. Type of Information Collection Services (CMS) (formerly known as the and Issuances. Request: Extension of a currently Health Care Financing Administration [FR Doc. 04–5413 Filed 3–10–04; 8:45 am] approved collection; Title of (HCFA)), Department of Health and BILLING CODE 4120–03–P Information Collection: Home health Human Services, is publishing the Medicare Conditions of Participation following summary of proposed (CoP) Information Collection collections for public comment. DEPARTMENT OF HEALTH AND Requirements and Supporting Interested persons are invited to send HUMAN SERVICES Regulations in 42 CFR 484.10, 484.12, comments regarding this burden Food and Drug Administration 484.14, 484.16, 484.18, 484.36, 484.48, estimate or any other aspect of this and 484.52; Form No.: CMS–R–39 collection of information, including any Industry Exchange Workshop on FDA of the following subjects: (1) The (OMB# 0938–0365); Use: 42 CFR part Clinical Trial Requirements; Public necessity and utility of the proposed 484 outlines Home Health Agency Workshop Medicare CoP to ensure HHAs meet the information collection for the proper Federal patient health and safety performance of the agency’s functions; AGENCY: Food and Drug Administration, regulations; Frequency: Annually; (2) the accuracy of the estimated HHS. Affected Public: Business or other for- burden; (3) ways to enhance the quality, ACTION: Notice of public workshop. profit, not-for-profit institutions, Federal utility, and clarity of the information to government, and State, local or tribal be collected; and (4) the use of SUMMARY: The Food and Drug government; Number of Respondents: automated collection techniques or Administration (FDA) Detroit District, 7,422; Total Annual Responses: 7,422; other forms of information technology to in cooperation with the Society of Total Annual Hours: 854,891. minimize the information collection Clinical Research Associates, (SoCRA) is To obtain copies of the supporting burden. announcing a workshop on FDA clinical statement and any related forms for the Type of Information Collection trial statutory and regulatory proposed paperwork collections Request: Extension of a currently requirements. Topics for discussion referenced above, access CMS Web site approved collection; Title of include: Pre-IND(investigational new address at http://cms.hhs.gov/ Information Collection: Request for drug application) meetings and FDA regulations/pra/default.asp, or e-mail Employment Information; Form meeting process, medical device, drug your request, including your address, No.:CMS–R–297 (OMB# 0938–0787); and biological product aspects of phone number, OMB number, and CMS Use: This information is needed to clinical research, investigator initiated document identifier, to determine whether a beneficiary can research, informed consent [email protected], or call the Reports enroll in part B under section 1837(i) of requirements, adverse event reporting, Clearance Office on (410) 786–1326. the Act and/or qualify for a reduction in how FDA conducts bioresearch Written comments and the premium amount under section inspections, ethics in subject recommendations for the proposed 1839(b) of the Act.; Frequency: On enrollment, FDA regulation of information collections must be mailed occasion; Affected Public: Business or Institutional Review Boards, FDA and
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confidence in the conduct of clinical If you need special accommodations extended, revised, or implemented on or research, and what happens after the due to a disability, please contact Marie after October 1, 1995, unless it displays FDA inspection. This 1 1/2-day Falcone at least 7 days in advance of the a currently valid OMB control number. workshop for the clinical research workshop. Proposed Collection community targets sponsors, monitors, SUPPLEMENTARY INFORMATION: The ‘‘FDA clinical investigators, institutional Clinical Trials Statutory and Regulatory Title: NCCAM Office of review boards and those who interact Requirements’’ workshop helps fulfill Communications and Public Liaison with them for the purpose of conducting the Department of Health and Human Communications Programs Planning FDA regulated clinical research. The Services’ and FDA’s important mission and Evaluation. Type of Information workshop will include both industry to protect the public health by educating Collection Request: New. Need and Use and FDA perspectives on proper researchers on proper conduct of of Information Collection: NCCAM conduct of clinical trials regulated by clinical trials. FDA has made education provides the public, patients, families, FDA. of the research community a high health care providers, complementary Date and Time: The public workshop priority to assure the quality of clinical and alternative medicine (CAM) is scheduled for Wednesday, April 21, data and protect research subjects. practitioners, and other with the latest 2004 from 8:30 a.m. to 4:45 p.m. and The workshop helps to implement the scientifically based information on CAM Thursday, April 22, 2004, from 8:45 objectives of section 406 of the FDA and information about NCCAM’s a.m. to 12:30 p.m. Modernization Act (21 U.S.C. 393) and programs through a variety of channels. Location: The public workshop will the FDA Plan for Statutory Compliance, NCCAM requests permission to collect be held at the Livonia, Michigan which includes working more closely data from individuals and organizations in order to conduct (1) Formative Holiday Inn, 17123 Laurel Park Dr. with stakeholders and ensuring access research and (2) evaluation of activities, North, Livonia, MI 48152. to needed scientific and technical using both qualitative and quantitative Contact: Nancy Bellamy, FDA, 300 expertise. The workshop also furthers methods. OCPL communications goals River Pl., suite 5900, Detroit, MI 48207, the goals of the Small Business include raising awareness of issues 313–393–8143, FAX: 313–393–8139, e- Regulatory Enforcement Fairness Act unique to CAM so that consumers and mail [email protected] or Marie (Public Law 104–121) by providing health care providers can make better, Falcone, Industry and Small Business outreach activities by Government agencies directed to small businesses. more informed decisions, and Representative, FDA, rm. 900 U.S. establishing NCCAM as the source for Customhouse, 200 Chestnut St., Dated: March 5, 2004. credible, authoritative CAM Philadelphia, PA 19106, 215–597–2120, Jeffrey Shuren, information. The response data ext. 4003, FAX: 215–597–5798, e-mail: Assistant Commissioner for Policy. collected under this generic clearance [email protected]. [FR Doc. 04–5489 Filed 3–10–04; 8:45 am] will be used to improve communication Registration: Send registration BILLING CODE 4160–01–S activities through (1) Identifying key information (including name, title, firm audiences, (2) developing program plans name, address, telephone, and fax to meet the needs of diverse audiences, number) and $485 (member) or $560 DEPARTMENT OF HEALTH AND (3) developing messages and evaluating (non-member) registration fee made HUMAN SERVICES how well they resonate with intended payable to SoCRA, P.O. Box 101, audiences, and (4) evaluating how well National Institutes of Health Furlong, PA 18925. To register via the communications program reach their Internet go to http://www.socra.org/ intended audiences. Frequency of FDAlConference.htm. FDA has verified Proposed Collection; Comment Request; National Center for Response: Periodically or as needed. the Web site address, but is not Affected Public: Individuals and responsible for subsequent changes to Complementary and Alternative Medicine Office of Communications households; nonprofit institutions; the Web site after this document Federal government; State, local, or publishes in the Federal Register. and Public Liaison Communications Program Planning and Evaluation tribal government. Type of Respondents: Registrar will also accept payment by Members of the public, health care major credit cards. For more SUMMARY: Under the provisions of professionals, representatives of information on the meeting, or for section 3507(a)(1)(D) of the Paperwork organizations. The annual reporting questions on registration, contact 800 Reduction Act of 1995, the National burden is as follows. Estimated Number -SoCRA92 (800–762–7292), or 215–345– Center for Complementary and of Respondents: 2,440. Estimated 7369 or via e-mail to Alternative Medicine (NCCAM), the Number of Responses per Respondent: [email protected]. Attendees are National Institutes of Health (NIH), will 1; Average Burden Hours per Response: responsible for their own submit to the Office of Management and 0.29. Estimated Annual Total Burden accommodations. To make reservations Budget (OMB) a request for review and Hours Requested: 713. There are no at the Holiday Inn Livonia at the approval of the information collection capital costs, operating costs, or reduced conference rate, contact the listed below. A notice of this proposed maintenance costs to report. Holiday Inn at 734–464–1300 or at hotel information collection was previously Request for Comments: Written FAX: 734–464–1596 before March 23, published in the Federal Register on comments and/or suggestions from the 2004. September 12, 2003, page 53743, and public and affected agencies are invited The registration fee will be used to allowed 60 days for public comment. In on the following points: (1) Whether the offset the expenses of hosting the response to the notice, NCCAM received proposed collection of information is conference, including meals, one request to learn more about the necessary for the proper performance of refreshments, meeting rooms, and overall evaluation plans. The purpose of the function of the agency, including materials. Space is limited, therefore this notice is to announce a final 30 whether the information will have interested parties are encouraged to days for public comment. NIH may not practical utility; (2) the accuracy of the register early. Limited onsite registration conduct or sponsor, and the respondent agency’s estimate of the burden of the may be available. Please arrive early to is not required to respond to, an proposed collection of information, ensure prompt registration. information collection that has been including the validity of the
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methodology and assumptions used; (3) DEPARTMENT OF HEALTH AND news stories in the U.S. is to gain ways to enhance the quality, utility, and HUMAN SERVICES knowledge of their background, clarity of the information to be environment, perspectives, and training collected; and (4) ways to minimize the National Institutes of Health needs in an effort to develop initiatives burden of the collection of information that will improve news media reportage on those who are to respond, including Submission for OMB Review; Comments Request Improving Media of health in general, and cancer in the use of appropriate automated, particular. Six hundred reporters and electronic, mechanical, or other Coverage of Cancer: A Survey of Science and Health Reporters editorial personnel of daily and weekly technological collection techniques or newspapers, magazines, wire service other forms of information technology. SUMMARY: In compliance with the agencies, and television and radio Direct Comments to OMB: Written requirement of Section 3506(c)(2)(A) of comments and/or suggestions regarding stations with a specific focus on health the Paperwork Reduction Act of 1995, and medical science reporting will be the item(s) contained in this notice, for opportunity for public comment on especially regarding the estimated surveyed to determine their socio- proposed data collection projects, the demographic characteristics, individual public burden and associated response National Cancer Institute (NCI) of the characteristics, occupational practices, time, should be directed to the Office of National Institutes of Health (NIH) will and other organizational and Management and Budget, Office of publish periodic summaries of proposed Regulatory Affairs, New Executive projects to be submitted to the Office of environmental factors that influence Office Building, Room 10235, Management and Budget (OMB) for how they report health and medical Washington, DC 20503, Attention: Desk review and approval. science stories. This information will Officer for NIH. To request more Proposed Collection: Title: Improving allow NCI to assess reporters’ training information on the proposed project or Media Coverage of Cancer: A Survey of needs, the barriers they face, and the to obtain a copy of the data collection Science and Health Reporters. Type of resources NCI can develop to assist plans and instruments, contact: Christy Information Collection Request: New. them in reporting cancer-related stories. Thomsen, Director, Office of Need and Use of Information Collection: Frequency of Response: Once. Affected Communications and Public Liaison, The NCI is dedicated to improving the Public: Individuals and businesses. NCCAM, 6707 Democracy Boulevard, extent and quality of cancer coverage in Type of Respondents: Reporters and Suite 401, Bethesda, MD 20892–5475; or all forms of new media. Towards this editors. The annual reporting burden is fax your request to 301–480–3519; or e- goal, the NCI would like to explore how as follows: Estimated Number of mail [email protected]. Ms. health stories are currently being Respondents: 600; Estimated Number of Thomsen can be contacted by telephone covered in print, television, and radio Responses per Respondent: 1; Average at 301–451–8876. news coverage and would also like to Burden Hours Per Response: .334; and Comments Due Date: Comments understand the barriers that exist to regarding this information collection are Estimated Total Annual Burden Hours better health and cancer coverage. Requested: 200. The total estimated cost best assured of having their full effect if Information from this research can be received within 30 days of the date of to respondents is $3,784. There are no used to support the myriad of efforts Capital Costs to report. There are no this publication. and initiatives of the NCI as described Operating or Maintenance Costs to Dated: March 4, 2004. in the Bypass Budget to ‘‘understand report. Christy Thomsen, and apply the most effective Director, Office of Communications and communications approaches to Public Liaison, National Center for maximize access to and use of cancer Complementary and Alternative Medicine, information by all who need it.’’ National Institutes of Health. The primary objective of the NCI [FR Doc. 04–5505 Filed 3–10–04; 8:45 am] Media survey of reporters and editors BILLING CODE 4140–01–M covering health and medical science
Number of Average Respondents Number of burden per Total burden respondents responses per response (in hours) respondent (in hours)
Reporters ...... 600 1 .334 200
Total ...... 200
Request for Comments: Written the methodology and assumptions used; the data collection plans and comments and/or suggestions from the (3) Enhance the quality, utility, and instruments, contact: Helen I. Meissner, public and affected agencies should clarity of the information to be Ph.D., Chief, Applied Cancer Screening address one or more of the following collected; and (4) Minimize the burden Research Branch, Behavioral Research points: (1) Evaluate whether the of the collection of information on those Program, Division of Cancer Control and proposed collection of information is who are to respond, including the use Population Sciences, National Cancer necessary for the proper performance of of appropriate automated, electronic, Institute, Executive Plaza North, Suite the function of the agency, including mechanical, or other technological 4102, 6130 Executive Blvd., MSC 7331, whether the information will have collection techniques or other forms of Bethesda, MD 20892–7331, or call non- practical utility; (2) Evaluate the information technology. toll-free number 301–435–2836 or E- accuracy of the agency’s estimate of the FOR FURTHER INFORMATION CONTACT: To mail your request, including your burden of the proposed collection of request more information on the address to: [email protected]. information, including the validity of proposed project or to obtain a copy of
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Comments Due Date: Comments DEPARTMENT OF HEALTH AND is hereby given of the following regarding this information collection are HUMAN SERVICES meeting. best assured of having their full effect if The meeting will be closed to the received within 60-days of the date of National Institutes of Health public in accordance with the this publication. provisions set forth in sections National Cancer Institute; Notice of Dated: March 4, 2004. 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Closed Meeting as amended. The grant applications and Rachelle Ragland-Greene, the discussions could disclose Pursuant to section 10(d) of the Project Clearance Liaison, National Cancer confidential trade secrets or commercial Federal Advisory Committee Act, as Institute, National Institutes of Health. property such as patentable material, amended (5 U.S.C. Appendix 2), notice [FR Doc. 04–5542 Filed 3–10–04; 8:45 am] and personal information concerning is hereby given of the following BILLING CODE 4140–01–M individuals associated with the grant meeting. applications, the disclose of which The meeting will be closed to the would constitute a clearly unwarranted DEPARTMENT OF HEALTH AND public in accordance with the invasion of personal privacy. HUMAN SERVICES provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Name of Committee: National Cancer National Institutes of Health as amended. The grant applications and Institute Initial Review Group, Subcommittee C—Basic & Preclinical. the discussions could disclose National Cancer Institute; Amended Date: April 13–15, 2004. confidential trade secrets or commercial Time: 7 p.m. to 6 p.m. Notice of Meeting property such as patentable material, Agenda: To review and evaluate grant and personal information concerning applications. Notice is hereby given of a change in individuals associated with the grant Place: Holiday Inn Select Bethesda, 8120 the meeting of the National Cancer applications, the disclosure of which Wisconsin Ave, Bethesda, MD 20814. Institute Special Emphasis Panel, April would constitute a clearly unwarranted Contact Person: Michael B. Small, PhD, 6, 2004, 8 a.m. to April 7, 2004, 5 p.m., invasion of personal privacy. Scientific Review Administrator, Research Gaithersburg Hilton, 620 Perry Parkway, Programs Review Branch, Division of Gaithersburg, MD 20877 which was Name of Committee: National Cancer Extramural Activities, National Cancer Institute Initial Review Group, Subcommittee published in the Federal Register on Institute, National Institutes of Health, 6116 D—Clinical Studies. Executive Boulevard, Room 8127, Bethesda, January 30, 2004, 69 FR 4524. Date: April 13–14, 2004. MD 20892, 301–402–0996, The meeting is being amended due to Time: 7 p.m. to 7 p.m. [email protected]. change in meeting type from a regular Agenda: To review and evaluate grant applications. (Catalogue of Federal Domestic Assistance meeting to a teleconference. The Program Nos. 93.392, Cancer Construction; meeting is closed to the public. Place: Holiday Inn Select Bethesda, 8120 Wisconsin Ave., Bethesda, MD 20814. 93.393, Cancer Cause and Prevention Dated: March 5, 2004. Contact Person: William D. Merritt, PhD, Research; 93.394. Cancer Detection and Diagnosis Research; 93.395, Cancer LaVerne Y. Stringfield, Scientific Review Administrator, Research Programs Review Branch, National Cancer Treatment Research; 93.396, Cancer Biology Director, Office of Federal Advisory Institute, Division of Extramural Activities, Research; 93.397, Cancer Centers Support; Committee Policy. 6116 Executive Blvd., 8th Floor, Bethesda, 93.398, Cancer Research Manpower; 93,399, [FR Doc. 04–5532 Filed 3–10–04; 8:45 am] MD 20892–8328, 301–496–9767, Cancer Control, National Institutes of Health, [email protected]. HHS) BILLING CODE 4140–01–M Dated: March 5, 2004. (Catalogue of Federal Domestic Assistance LaVerne Y. Stringfield, Program Nos. 93.392, Cancer Construction; DEPARTMENT OF HEALTH AND 93.393, Cancer Cause and Prevention Director, Office of Federal Advisory HUMAN SERVICES Research; 93.394, Cancer Detection and Committee Policy. Diagnosis Research; 93.395, Cancer [FR Doc. 04–5540 Filed 3–10–04; 8:45 am] National Institutes of Health Treatment Research; 93.396, Cancer Biology BILLING CODE 4140–01–M Research; 93.397, Cancer Centers Support; National Cancer Institute; Amended 93.398, Cancer Research Manpower; 93.399, Notice of Meeting Cancer Control, National Institutes of Health, DEPARTMENT OF HEALTH AND HHS) HUMAN SERVICES Notice is hereby given of a change in Dated: March 5, 2004. the meeting of the National Cancer LaVerne Y. Stringfield, National Institutes of Health Institute Special Emphasis Panel, March Director, Office of Federal Advisory 10, 2004, 8 a.m. to March 11, 2204, 6 Committee Policy. National Institute of Dental & p.m., Bethesda Marriott, 5151 Pooks Hill [FR Doc. 04–5539 Filed 3–10–04; 8:45 am] Craniofacial Research; Notice of Closed Meeting Road, Bethesda, MD 20814 which was BILLING CODE 4140–01–M published in the Federal Register on Pursuant to section 10(d) of the February 25, 2004, 69 FR 8671–8672. Federal Advisory Committee Act, as DEPARTMENT OF HEALTH AND amended (5 U.S.C. Appendix 2), notice The meeting is being amended to HUMAN SERVICES correct the year from 2204 to 2004. The is hereby given of the following meeting is closed to the public. National Institutes of Health meeting. The meeting will be closed to the Dated: March 5, 2004. National Cancer Institute; Notice of public in accordance with the LaVerne Y. Stringfield, Closed Meeting provisions set forth in sections Director, Office of Federal Advisory 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Committee Policy. Pursuant to section 10(d) of the as amended. The grant applications and [FR Doc. 04–5538 Filed 3–10–04; 8:45 am] Federal Advisory Committee Act, as the discussions could disclose BILLING CODE 4140–01–M amended (5 U.S.C. Appendix 2), notice confidential trade secrets or commercial
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property such as patentable material, Place: Bethesda Marriott Suites, 6711 Review Branch, DEA, NIDDK, National and personal information concerning Democracy Boulevard, Bethesda, MD 20817. Institutes of Health, Room 754, 6707 individuals associated with the grant Contact Person: Ned Feder, MD, Scientific Democracy Boulevard, Bethesda, MD 20892– applications, the disclosure of which Review Administrator, Review Branch, DEA, 5452, (301) 594–7799, [email protected]. NIDDK, National Institutes of Health Room would constitute a clarly unwarranted (Catalogue of Federal Domestic Assistance 748, 6707 Democracy Boulevard, Bethesda, Program Nos. 93.847, Diabetes, invasion of personal privacy. MD 20892–5452, (301) 594–8890, Endocrinology and Metabolic Research; Name of Committee: National Institute of [email protected]. 93.848, Digestive Diseases and Nutrition Dental and Craniofacial Research Special Name of Committee: National Institute of Research; 93.849, Kidney Diseases, Urology Emphasis Panel, 04–48, Review of R21s. Diabetes and Digestive and Kidney Diseases and Hematology Research, National Institutes Date: March 25, 2004. Special Emphasis Panel; Regulation of Type of Health, HHS) Time: 3 p.m. to 4 p.m. 1 Diabetes Mellitus. Agenda: To review and evaluate grant Date: April 28, 2004. Dated: March 5, 2004. applications. Time: 2 p.m. to 5 p.m. LaVerne Y. Stringfield, Place: National Institutes of Health, Agenda: To review and evaluate grant Director, Office of Federal Advisory Natcher Building, 45 Center Drive, Bethesda, applications. Committee Policy. MD 20892 (Telephone Conference Call). Place: National Institutes of Health, Two [FR Doc. 04–5524 Filed 3–10–04; 8:45 am] Contact Person: Rebecca Roper, MS, MPH, Democracy Plaza, 6707 Democracy Scientific Review Administrator, Scientific Boulevard, Bethesda, MD 20892 (Telephone BILLING CODE 4140–01–M Review Branch, Division of Extramural Conference Call). Research, National Inst of Dental & Contact Person: Lakshmanan Sankaran, Craniofacial Research, National Institutes of PhD, Scientific Review Administrator, DEPARTMENT OF HEALTH AND Health, 45 Center Dr., room 4AN32E, Review Branch, DEA, NIDDK, National HUMAN SERVICES Bethesda, MD 20892, (301) 451–5096. Institutes of Health, Room 754, 6707 National Institutes of Health (Catalogue of Federal Domestic Assistance Democracy Boulevard, Bethesda, MD 20892– 5452, (301) 594–7799, [email protected]. Program Nos. 93.121, Oral Diseases and National Institute of Diabetes and Disorders Research, National Institutes of Name of Committee: National Institutes of Health, HHS) Diabetes and Digestive and Kidney Diseases Digestive and Kidney Diseases; Notice Special Emphasis Panel; Model Systems for of Closed Meetings Dated: March 5, 2004. Development of Pain Gene Therapy. Pursuant to section 10(d) of the LaVerne Y. Stringfield, Date: April 30, 2004. Director, Office of Federal Advisory Time: 8 a.m. to 4 p.m.. Federal Advisory Committee Act, as Committee Policy. Agenda: To review and evaluate grant amended (5 U.S.C. Appendix 2), notice [FR Doc. 04–5523 Filed 3–10–04; 8:45 am] applications. is hereby given of the following BILLING CODE 4140–01–M Place: Hyatt Regency Crystal City, 2799 meetings. Jefferson Davis Highway, Arlington, VA The meetings will be closed to the 22202. public in accordance with the DEPARTMENT OF HEALTH AND Contact Person: Maxine A. Lesniak, PHM, provisions set forth in sections Scientific Review Administrator, Review HUMAN SERVICES 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Branch, DEA, NIDDK, National Institutes of as amended. The grant applications and Health, Room 756, 6707 Democracy the discussions could disclose National Institutes of Health Boulevard, Bethesda, MD 20892–5452, (301) 594–7792, [email protected]. confidential trade secrets or commercial National Institute of Diabetes and property such as patentable material, Digestive and Kidney Diseases; Notice Name of Committee: National Institute of Diabetes and Digestive and Kidney Diseases and personal information concerning of Closed Meetings Special Emphasis Panel; Early individuals associated with the grant Antipseudomonal Therapy in Cystic Fibrosis. applications, the disclosure of which Pursuant to section 10(d) of the Date: May 3, 2004. would constitute a clearly unwarranted Federal Advisory Committee Act, as Time: 1 p.m. to 2:30 p.m. invasion of personal privacy. amended (5 U.S.C. Appendix 2), notice Agenda: To review and evaluate grant Name of Committee: National Institute of is hereby given of the following applications. Diabetes and Digestive and Kidney Diseases meetings. Place: National Institutes of Health, Two Special Emphasis Panel; Multicenter Trial of The meetings will be closed to the Democracy Plaza, 6707 Democracy Combined CBT and Desipramine in FBD. Boulevard, Bethesda, MD 20892 (Telephone public in accordance with the Date: March 29, 2004. Conference Call). Time: 2 p.m. to 3:30 p.m. provisions set forth in sections Contact Person: Carolyn Miles, PhD, 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Agenda: To review and evaluate grant Scientific Review Administrator, Review applications. as amended. The grant applications and Branch, DEA, NIDDK, National Institutes of Place: National Institutes of Health, Two the discussions could disclose Health, Room 755, 6707 Democracy Democracy Plaza, 6707 Democracy confidential trade secrets or commercial Boulevard, Bethesda, MD 20892–5452, (301) Boulevard, Bethesda, MD 20892 (Telephone property such as patentable material, 594–7791, [email protected]. Conference Call). and personal information concerning Name of Committee: National Institute of Contact Person: Paul A. Rushing, PhD, individuals associated with the grant Diabetes and Digestive and Kidney Diseases Scientific Review Administrator, Review applications, the disclosure of which Special Emphasis Panel; Growth Branch, DEA, NIDDK, National Institutes of Health, Room 747, 6707 Democracy would constitute a clearly unwarranted Differentiation and Disease of Unrothelium. Date: May 5, 2004. Boulevard, Bethesda, MD 20892–5452, (301) invasion of personal privacy. Time: 11 a.m. to 2 p.m. 594–8895, [email protected]. Name of Committee: National Institute of Agenda: To review and evaluate grant This notice is being published less than 15 Diabetes and Digestive and Kidney Diseases applications. days prior to the meeting due to the timing Special Emphasis Panel; Pilot and Feasibility Place: National Institutes of Health, Two limitations imposed by the review and Program in Human Islet Biology. Democracy Plaza; 6707 Democracy funding cycle. Date: April 19–20, 2004. Boulevard, Bethesda, MD 20892 (Telephone Name of Committee: National Institute of Time: 7:30 PM to 2:30 PM. Conference Call). Diabetes and Digestive and Kidney Diseases Agenda: To review and evaluate grant Contact Person: Lakshmanan Sankaran, Special Emphasis Panel; Nutrition and HIV applications. PhD, Scientific Review Administrator, Inspection.
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Date: April 1, 2004. Dated: March 5, 2004. DEPARTMENT OF HEALTH AND Time: 2 p.m. to 5 p.m. LaVerne Y. Stringfield, HUMAN SERVICES Agenda: To review and evaluate grant Director, Office of Federal Advisory applications. National Institutes of Health Place: National Institutes of Health, Two Committee Policy. Democracy Plaza, 6707 Democracy [FR Doc. 04–5525 Filed 3–10–04; 8:45 am] National Institute on Deafness and Boulevard, Bethesda, MD 20892 (Telephone BILLING CODE 4140–01–M Conference Call). Other Communication Disorders; Contact Person: Paul A Rushing, PhD, Notice of Closed Meetings Scientific Review Administrator, Review Pursuant to section 10(d) of the Branch, DEA, NIDDK, National Institutes of DEPARTMENT OF HEALTH AND Health, Room 747, 6707 Democracy HUMAN SERVICES Federal Advisory Committee Act, as Boulevard, Bethesda, MD 20892–5452, (301) amended (5 U.S.C. Appendix 2), notice 594–8895, [email protected]. National Institutes of Health is hereby given of the following Name of Committee: National Institute of meetings. Diabetes and Digestive and Kidney Diseases National Institute of Neurological The meetings will be closed to the Special Emphasis Panel; Endoscopic Clinical Disorders and Stroke; Notice of Closed public in accordance with the Research in Pancreatic and Bilary Diseases. Meeting provisions set forth in sections Date: April 9, 2004. 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Time: 1:30 p.m. to 3:30 p.m. Pursuant to section 10(d) of the as amended. The grant applications and Agenda: To review and evaluate grant Federal Advisory Committee Act, as the discussions could disclose applications. amended (5 U.S.C. Appendix 2), notice Place: National Institutes of Health, Two confidential trade secrets or commercial Democracy Plaza, 6707 Democracy is hereby given of the following property such as patentable material, Boulevard, Bethesda, MD 20892 (Telephone meeting. and personal information concerning Conference Call). The meeting will be closed to the individuals associated with the grant Contact Person: Maria E. Davila-Bloom, public in accordance with the applications, the disclosure of which PhD, Scientific Review Administrator, provisions set forth in sections would constitute a clearly unwarranted Review Branch, DEA, NIDDK, National invasion of personal privacy. Institutes of Health, Room 758, 6707 552b(c)(4) and 552(b)(c)(6), Title 5 Democracy Boulevard, Bethesda, MD 20892– U.S.C., as amended. The grant Name of Committee: National Institute on 5452, (301) 594–7637, davila- applications and the discussions could Deafness and Other Communications [email protected]. disclose confidential trade secrets or Disorders Special Emphasis Panel; Small Name of Committee: National Institute of commercial property such as patentable Grant Program. Diabetes and Digestive and Kidney Diseases material, and personal information Date: April 15–16, 2004. Time: April 15, 2004, 8 a.m. to 5 p.m. Special Emphasis Panel; Training concerning individuals associated with Conference. Agenda: To review and evaluate grant the grant applications, the disclosure of applications. Date: April 15, 2004. which would constitute a clearly Time: 10:30 a.m. to 12:30 p.m. Place: Hyatt Regency Bethesda, One Agenda: To review and evaluate grant unwarranted invasion of personal Bethesda Metro Center, 7400 Wisconsin applications. privacy. Avenue, Bethesda, MD 20814. Time: April 16, 2004, 8 a.m. to Place: National Institutes of Health, Two Name of Committee: National Institute of Democracy Plaza, 6707 Democracy Adjournment. Neurological Disorders and Stroke Special Agenda: To review and evaluate grant Boulevard, Bethesda, MD 20892, (Telephone Emphasis Panel Research Integrity Review. Conference Call). applications. Date: March 8–9, 2004. Contact Person: Michael W. Edwards, PhD, Place: Hyatt Regency Bethesda, One Scientific Review Administrator, Review Time: 8 a.m. to 5 p.m. Bethesda Metro Center, 7400 Wisconsin Branch, DEA, NIDDK, National Institutes of Agenda: To review and evaluate grant Avenue, Bethesda, MD 20814. Health, Room 750, 6707 Democracy applications. Contact Person: Ali A. Azadegan, DVM, Boulevard, Bethesda, MD 20892–5452, (301) Place: Marriott Coronado Island Resort, PhD, Scientific Review Administrator, 594–8886, [email protected]. 2000 Second Street, Coronado, CA 92118. Scientific Review Branch, Division of Extramural Activities, NIDCD, NIH, EPS– Name of Committee: National Institute of Contact Person: Phillip F. Wiethorn, 400C, 6120 Executive Blvd, MSC 7180, Diabetes and Digestive and Kidney Diseases Scientific Review Administrator, DHHS/NIH/ Bethesda, MD 20892–7180, (301) 496–8683, Special Emphasis Panel; HIV Associated NINDS/DER/SRB, 6001 Executive Boulevard [email protected]. Nephropathy. MSC 9529, Neuroscience Center; Room 3203, Name of Committee: National Institute on Date: April 23, 2004. Bethesda, MD 20892–9529, (301) 496–5388. Deafness and Other Communications Time: 2 p.m. to 5 p.m. [email protected]. Agenda: To review and evaluate grant Disorders Special Emphasis Panel; Loan This notice is being published less than 15 applications. Repayment Program. days prior to the meeting due to the timing Place: National Institutes of Health, Two Date: April 30, 2004. Democracy Plaza, 6707 Democracy limitations imposed by the review and Time: 8:30 a.m. to 1 p.m. Boulevard, Bethesda, MD 20892, (Telephone funding cycle. Agenda: To review and evaluate grant Conference Call). (Catalogue of Federal Domestic Assistance applications. Contact Person: Lakshmanan Sankaran, Program Nos. 93.853, Clinical Research Place: National Institutes of Health, 6120 PhD, Scientific Review Administrator, Related to Neurological Disorders; 93.854, Executive Blvd., Rockville, MD 20852, Review Branch, DEA, NIDDK, National Biological Basis Research in the (Telephone Conference Call). Contact Person: Stanley C. Oaks, PhD, Institutes of Health, Room 754, 6707 Neurosciences, National Institutes of Health, Democracy Boulevard, Bethesda, MD 20892– Scientific Review Administrator, Division of HHS) 5452, (301) 594–7799, [email protected]. Extramural Activities, NIDCD, NIH, (Catalogue of Federal Domestic Assistance Dated: March 5, 2004. Executive Plaza South, Room 400C, 6120 Program Nos. 93.847, Diabetes, LaVerne Y. Stringfield, Executive Blvd–MSC 7180, Bethesda, MD 20892–7180, (301) 496–8683, [email protected]. Endocrinology and Metabolic Research; Director, Office of Federal Advisory (Catalogue of Federal Domestic Assistance 93.848, Digestive Diseases and Nutrition Committee Policy. Research; 93.849, Kidney Diseases, Urology Program Nos. 93.173, Biological Research and Hematology Research, National Institutes [FR Doc. 04–5526 Filed 3–10–04; 8:45 am] Related to Deafness and Communicative of Health, HHS) BILLING CODE 4140–01–M Disorders, National Institutes of Health, HHS)
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Dated: March 5, 2004. DEPARTMENT OF HEALTH AND Dated: March 5, 2004. LaVerne Y. Stringfield, HUMAN SERVICES LaVerne Y. Stringfield, Director, Office of Federal Advisory Director, Office of Federal Advisory Committee Policy. National Institutes of Health Committee Policy. [FR Doc. 04–5531 Filed 3–10–04; 8:45 am] National Institute of Alcohol Abuse and [FR Doc. 04–5534 Filed 3–10–04; 8:45 am] BILLING CODE 4140–01–M Alcoholism; Notice of Closed Meetings BILLING CODE 4140–01–M
Pursuant to section 10(d) of the DEPARTMENT OF HEALTH AND Federal Advisory Committee Act, as DEPARTMENT OF HEALTH AND HUMAN SERVICES amended (5 U.S.C. appendix 2), notice HUMAN SERVICES is hereby given of the following National Institutes of Health National Institutes of Health meetings. National Institute of Mental Health; The meetings will be closed to the National Institute on Alcohol Abuse Notice of Closed Meeting public in accordance with the and Alcoholism; Notice of Closed provisions set forth in sections Meeting Pursuant to section 10(d) of the 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Federal Advisory Committee Act, as as amended. The grant applications and Pursuant to section 10(d) of the amended (5 U.S.C. appendix 2), notice the discussions could disclose Federal Advisory Committee Act, as is hereby given of the following confidential trade secrets or commercial amended (5 U.S.C. appendix 2), notice meeting. property such as patentable material, is hereby given of the following The meetings will be closed to the and personal information concerning meeting. public in accordance with the individuals associated with the grant The meeting will be closed to the provisions set forth in sections applications, the disclosure of which public in accordance with the 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., would constitute a clearly unwarranted provisions set forth in sections as amended. The grant applications and invasion of personal privacy. 552b(c)(4) and 552b(c)(6), title 5 U.S.C., the discussions could disclose Name of Committee: National Institute on as amended. The grant applications and confidential trade secrets or commercial Alcohol Abuse and Alcoholism Initial the discussions could disclose property such as patentable material, Review Group, Biomedical Research Review confidential trade secrets or commercial and personal information concerning Subcommittee, AA–1 Biomedical Research property such as patentable material, individuals associated with the grant Review Subcommittee. and personal information concerning applications, the disclosure of which Date: June 2–3, 2004. individuals associated with the grant Time: 8 a.m. to 4 p.m. would constitute a clearly unwarranted applications, the disclosure of which invasion of personal privacy. Agenda: To review and evaluate grant applications. would constitute a clearly unwarranted Name of Committee: National Institute of Place: Hyatt Regency Bethesda, One invasion of personal privacy. Mental Health Special Emphasis Panel, Bethesda Metro Center, 7400 Wisconsin Name of Committee: National Institute on Translational Research Centers. Avenue, Bethesda, MD 20814. Alcohol Abuse and Alcoholism Special Date: March 19, 2004. Contact Person: Sathasiva B. Kandasamy, Emphasis Panel, Review of Fellowship Time: 9 a.m. to 5 p.m. PhD, Scientific Review Administrator, Applications. Agenda: To review and evaluate grant Extramural Project Review Branch, Office of Date: March 29, 2004. applications. Scientific Affairs, National Institute on Time: 8:30 a.m. to 5 p.m. Place: Melrose Hotel, 2430 Pennsylvania Alcohol Abuse and Alcoholism, 6000 Agenda: To review and evaluate grant Ave., NW., Washington, DC 20037. Executive Blvd, Suite 409, Bethesda, MD applications. Contact Person: Benjamin Xu, PhD, 20892–70003, (301) 443–2926, Place: The River Inn, 924 Twenty-Fifth Scientific Review Administrator, Division of [email protected]. Street, NW., Washington, DC 20037. Extramural Activities, National Institute of Name of Committee: National Institute on Contact Person: Dorita Sewell, PhD, Mental Health, NIH, Neuroscience Center, Alcohol Abuse and Alcoholism Initial Scientific Review Administrator, Extramural 6001 Executive Boulevard, Room 6143, MSC Review Group, Clinical and Treatment Project Review Branch, Office of Scientific 9608, Bethesda, MD 20892–9608, 301–443– Subcommittee AA–3. Affairs, National Institute on Alcohol Abuse 1178, [email protected]. Date: July 15–16, 2004. Time: 8:30 a.m. to 5 p.m. and Alcoholism, National Institutes of This notice is being published less than 15 Health, 6000 Executive Boulevard, Suite 409, days prior to the meeting due to the timing Agenda: To review and evaluate grant applications. Bethesda, MD 20892, 301–443–2890, limitations imposed by the review and Place: Holiday Inn Select Bethesda, 8120 [email protected]. funding cycle. Wisconsin Ave, Bethesda, MD 20814. (Catalogue of Federal Domestic Assistance (Catalogue of Federal Domestic Assistance Contact Person: Mahadev Murthy, MBA, Program Nos. 93.271, Alcohol Research Program Nos. 92.242, Mental Health Research Scientific Review Administrator, Extramural Grants; 93.281, Scientist Development Career Development Award for Scientists and Project Review Branch, Office of Scientific Clinicians, 93.272, Alcohol National Award, Scientist Development Award for Affairs, National Institute on Alcohol Abuse Research Service Awards for Research Clinicians, and Research Scientist Award; and Alcoholism, MSC 9304, Room 3037, Training; 93.273, Alcohol Research Programs; 93.282, Mental Health National Research Bethesda, MD 20892–9304, (301) 443–0800, Service Awards for Research Training, [email protected]. 93.891, Alcohol Research Center Grants, National Institutes of Health, HHS) National Institutes of Health, HHS) (Catalogue of Federal Domestic Assistance Dated: March 5, 2004. Program Nos. 93.271, Alcohol Research Dated: March 5, 2004. LaVerne Y. Stringfield, Career Development Awards for Scientists LaVerne Y. Stringfield, and Clinicians; 93.272, Alcohol National Director, Office of Federal Advisory Director, Office of Federal Advisory Research Service Awards for Research Committee Policy. Committee Policy. Training; 93.273, Alcohol Research Programs; [FR Doc. 04–5533 Filed 3–10–04; 8:45 am] 93.891, Alcohol Research Center Grants, [FR Doc. 04–5535 Filed 3–10–04; 8:45 am] BILLING CODE 4140–01–M National Institutes of Health, HHS) BILLING CODE 4140–01–M
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DEPARTMENT OF HEALTH AND The meetings will be closed to the Place: Holiday Inn Select Bethesda, 8120 HUMAN SERVICES public in accordance with the Wisconsin Ave., Bethesda, MD 20814. provisions set forth in sections Contact Person: Martha Ann Carey, PhD, National Institutes of Health 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., RN, Scientific Review Administrator, Division of Extramural Activities, National as amended. The grant applications and National Institute of Child Health and Institute of Mental Health, NIH, the discussions could disclose Neuroscience Center, 6001 Executive Blvd., Human Development; Notice of Closed confidential trade secrets or commercial Meeting Room 6151, MSC 9608, Bethesda, MD 20892– property such as patentable material, 9608, 301–443–1606, [email protected]. Pursuant to section 10(d) of the and personal information concerning (Catalogue of Federal Domestic Assistance Federal Advisory Committee Act, as individuals associated with the grant Program Nos. 93.242, Mental Health Research amended (5 U.S.C. appendix 2), notice applications, the disclosure of which Grants; 93.281, Scientist Development is hereby given of the following would constitute a clearly unwarranted Award, Scientist Development Award for invasion of personal privacy. Clinicians, and Research Scientist Award; meeting. 93.282, Mental Health National Research The meeting will be closed to the Name of Committee: National Institute of Service Awards for Research Training, public in accordance with the Mental Health Special Emphasis Panel, National Institutes of Health, HHS) provisions set forth in sections Statistics and Measurement. 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Date: March 18, 2004. Dated: March 5, 2004. as amended. The grant applications and Time: 12 p.m. to 1:30 p.m. LaVerne Y. Stringfield, the discussions could disclose Agenda: To review and evaluate grant Director, Office of Federal Advisory applications. confidential trade secrets or commercial Committee Policy. Place: National Institutes of Health, [FR Doc. 04–5537 Filed 3–10–04; 8:45 am] property such as patentable material, Neuroscience Center, 6001 Executive and personal information concerning Boulevard, Rockville, MD 20852 (Telephone BILLING CODE 4140–01–M individuals associated with the grant Conference Call). applications, the disclosure of which Contact Person: Mark Czarnolewski, PhD, would constitute a clearly unwarranted Scientific Review Administrator, Division of DEPARTMENT OF HEALTH AND invasion of personal privacy. Extramural Activities, National Institute of HUMAN SERVICES Mental Health, NIH, Neuroscience Center, Name of Committee: National Institute of 6001 Executive Blvd., Room 6153, MSC 9608, National Institutes of Health Child Health and Human Development Bethesda, MD 20892–9608, 301–402–8152, Special Emphasis Panel, Hypoxia in [email protected]. National Institute of Allergy and Development, Injury and Adaptation This notice is being published less than 15 Infectious Diseases; Notice of Closed Mechanisms. days prior to the meeting due to the timing Meeting Date: April 2, 2004. limitations imposed by the review and Time: 10:30 a.m. to 5 p.m. funding cycle. Pursuant to section 10(d) of the Agenda: To review and evaluate grant Federal Advisory Committee Act, as applications. Name of Committee: National Institute of Place: Bethesda Marriott, 5151 Pooks Hill Mental Health Special Emphasis Panel, amended (5 U.S.C. Appendix 2), notice Road, Bethesda, MD 20814. Centers’ Review. is hereby given of the following Contact Person: Gopal M. Bhatnagar, PhD, Date: March 31, 2004. meeting. Scientific Review Administrator, National Time: 9 a.m. to 5 p.m. The meeting will be closed to the Institute of Child Health and Human Agenda: To review and evaluate grant public in accordance with the Development, National Institutes of Health, applications. Place: Holiday Inn Select Bethesda, 8120 provisions set forth in sections 6100 Bldg., Rm. 5B01, Rockville, MD 20852, 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., (301) 435–6889, [email protected]. Wisconsin Ave., Bethesda, MD 20814. Contact Person: Martha Ann Carey, PhD, as amended. The grant applications and (Catalogue of Federal Domestic Assistance RN, Scientific Review Administrator, the discussions could disclose Program Nos. 93.864, Population Research; Division of Extramural Activities, National confidential trade secrets or commercial 93.865, Research for Mothers and Children; Institute of Mental Health, NIH, property such as patentable material, 93.929, Center for Medical Rehabilitation Neuroscience Center, 6001 Executive Blvd., Research; 93.209, Contraception and and personal information concerning Room 6151, MSC 9608, Bethesda, MD 20892– Infertility Loan Repayment Program, National individuals associated with the grant 9608, 301–443–1606, [email protected]. Institutes of Health, HHS) applications, the disclosure of which Name of Committee: National Institute of would constitute a clearly unwarranted Dated: March 5, 2004. Mental Health Special Emphasis Panel, Basic LaVerne Y. Stringfield, Neuroscience Conte Centers. invasion of personal privacy. Director, Office of Federal Advisory Date: April 1–2, 2004. Name of Committee: National Institute of Committee Policy. Time: 8 a.m. to 6 p.m. Allergy and Infectious Diseases Special [FR Doc. 04–5536 Filed 3–10–04; 8:45 am] Agenda: To review and evaluate grant Emphasis Panel, Comprehensive applications. International Program of Research on AIDS BILLING CODE 4140–01–M Place: Holiday Inn Select Bethesda, 8120 (CIPRA). Wisconsin Ave, Bethesda, MD 20814. Date: March 26, 2004. Contact Person: Peter J. Sheridan, PhD, Time: 12 p.m. to 5 p.m. DEPARTMENT OF HEALTH AND Scientific Review Administrator, Division of Agenda: To review and evaluate grant HUMAN SERVICES Extramural Activities, National Institute of applications. Mental Health, NIH, Neuroscience Center, Place: National Institutes of Health, National Institutes of Health 6001 Executive Blvd., Room 6142, MSC 9606, Rockledge 6700, 6700B Rockledge Drive, Bethesda, MD 20892–9606, 301–443–1513, Bethesda, MD 20817, (Telephone Conference National Institute of Mental Health; [email protected]. Call). Notice of Closed Meetings Name of Committee: National Institute of Contact Person: Robert C. Goldman, PhD, Scientific Review Administrator, Scientific Pursuant to section 10(d) of the Mental Health Special Emphasis Panel, Suicide Prevention Centers. Review Program, Division of Extramural Federal Advisory Committee Act, as Date: April 1, 2004. Activities, NIAID, NIH, Room 3124, 6700–B amended (5 U.S.C. appendix 2), notice Time: 9 a.m. to 5 p.m. Rockledge Drive, MSC 7616, Bethesda, MD is hereby given of the following Agenda: To review and evaluate grant 20892–7616, 301–496–8424, meetings. applications. [email protected].
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(Catalogue of Federal Domestic Assistance Agenda: Review of research and Agenda: Review and Analysis of Systems. Program Nos. 93.855, Allergy, Immunology, development programs and preparation of Place: National Library of Medicine, and Transplantation Research; 93.856, reports of the Lister Hill Center for Building 38, 2nd Floor Board Room, 8600 Microbiology and Infectious Diseases Biomedical Communication. Rockville Pike, Bethesda, MD 20894. Research, National Institutes of Health, HHS) Place: National Library of Medicine, Contact Person: David J. Lipman, MD, Building 38, Board Room, 2nd Floor, 8600 Dated: March 4, 2004. Director, Natl Ctr for Biotechnology Rockville Pike, Bethesda, MD 20892. Information, National Library of Medicine, LaVerne Y. Stringfield, Open: May 14, 2004, 9 a.m. to 12 p.m. Department of Health and Human Services, Director, Office of Federal Advisory Agenda: Review of research and Bethesda, MD 20894. Committee Policy. development programs and preparation of Any interested person may file written [FR Doc. 04–5541 Filed 3–10–04; 8:45 am] reports of the Lister Hill National Center for comments with the committee by forwarding Biomedical Communication. BILLING CODE 4140–01–M the statement to the Contact Person listed on Place: National Library of Medicine, this notice. The statement should include the Building 38, Board Room, 2nd Floor, 8600 name, address, telephone number and when Rockville Pike, Bethesda, MD 20892. DEPARTMENT OF HEALTH AND applicable, the business or professional Contact Person: Jackie Dule, Program affiliation of the interested person. HUMAN SERVICES Assistant, Lister Hill National Center for In the interest of security, NIH has Biomedical Communications, National instituted stringent procedures for entrance National Institutes of Health Library of Medicine, Building 38A, Room into the building by nongovernment 7N–707, Bethesda, MD 20892, (301) 496– employees. Persons without a government National Library of Medicine; Notice of 4441. I.D. will need to show a photo I.D. and sign- Meeting Any interested person may file written in at the security desk upon entering the comments with the committee by forwarding building. Pursuant to section 10(d) of the the statement to the Contact Person listed on Federal Advisory Committee Act, as Information is also available on the this notice. The statement should include the Institute’s/Center’s home page: amended (5 U.S.C. Appendix 2), notice name, address, telephone number and when www.pubmedcentral.nih.gov/about/nac/ is hereby given of a meeting of the applicable, the business or professional html, where an agenda and any additional Board of Scientific Counselors, National affiliation of the interested person. information for the meeting will be posted Library of Medicine. In the interest of security, NIH has when available. instituted stringent procedures for entrance The meeting will be open to the (Catalogue of Federal Domestic Assistance public as indicated below, with into the building by non-government employees. Persons without a government Program Nos. 93.879, Medical Library attendance limited to space available. I.D. will need to show a photo I.D. and sign- Assistance, National Institutes of Health, Individuals who plan to attend and in at the security desk upon entering the HHS) need special assistance, such as sign building. Dated: March 5, 2004. language interpretation or other (Catalogue of Federal Domestic Assistance LaVerne Y. Stringfield, reasonable accommodations, should Program Nos. 93.879, Medical Library Director, Office of Federal Advisory notify the Contact Person listed below Assistance, National Institutes of Health, Committee Policy. in advance of the meeting. The meeting HHS) [FR Doc. 04–5530 Filed 3–10–04; 8:45 am] will be closed to the public as indicated Dated: March 5, 2004. BILLING CODE 4140–01–M below in accordance with the provisions LaVerne Y. Stringfield, set forth in section 552b(c)(6), Title 5 Director, Office of Federal Advisory U.S.C., as amended for the review, Committee Policy. DEPARTMENT OF HEALTH AND discussion, and evaluation of individual [FR Doc. 04–5529 Filed 3–10–04; 8:45 am] HUMAN SERVICES intramural programs and projects BILLING CODE 4140–01–M conducted by the NATIONAL LIBRARY National Institutes of Health OF MEDICINE, including consideration of personnel qualifications and DEPARTMENT OF HEALTH AND Center for Scientific Review; Notice of performance, and the competence of HUMAN SERVICES Closed Meetings individual investigators, the disclosure Pursuant to section 10(d) of the of which would constitute a clearly National Institutes of Health Federal Advisory Committee Act, as unwarranted invasion of personal amended (5 U.S.C. Appendix 2), notice privacy. National Library of Medicine; Notice of Meeting is hereby given of the following Name of Committee: Board of Scientific meetings. Counselors, National Library of Medicine Pursuant to section 10(a) of the The meetings will be closed to the Board of Scientific Counselors, Lister Hill Federal Advisory Committee Act, as public in accordance with the Center. amended (5 U.S.C. Appendix 2), notice provisions set forth in sections Date: May 13–14, 2004. Open: May 13, 2004, 9 a.m. to 1 p.m. is hereby given of a meeting of the 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Agenda: Review of research and PubMed Central National Advisory as amended. The grant applications and development and preparation of reports of Committee. the discussions could disclose the Lister Hill Center for Biomedical The meeting will be open to the confidential trade secrets or commercial Communication. public, with attendance limited to space property such as patentable material, Place: National Library of Medicine, available. Individuals who plan to and personal information concerning Building 38, Board Room, 2nd Floor, 8600 attend and need special assistance, such individuals associated with the grant Rockville Pike, Bethesda, MD 20892. as sign language interpretation or other applications, the disclosure of which Closed: May 13, 2004, 1 p.m. to 2 p.m. reasonable accommodations, should would constitute a clearly unwarranted Agenda: To review and evaluate personal notify the Contact Person listed below qualifications and performance, and invasion of personal privacy. competence of individual investigators. in advance of the meeting. Name of Committee: Center for Scientific Place: National Library of Medicine, Name of Committee: PubMed Central Review Special Emphasis Panel, ZRG1 ONC– Building 38, Board Room, 2nd Floor, 8600 National Advisory Committee. J: Molecular Biology of Cancer. Rockville Pike, Bethesda, MD 20892. Date: May 10, 2004. Date: March 16, 2004. Open: May 13, 2004, 2 p.m. to 5 p.m. Time: 9:30 a.m. to 4 p.m. Time: 1 p.m. to 5 p.m.
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Agenda: To review and evaluate grant limitations imposed by the review and Contact Person: Melody Mills, PhD, applications. funding cycle. Scientific Review Administrator, Center for Place: National Institutes of Health, 6701 Name of Committee: Center for Scientific Scientific Review, National Institutes of Rockledge Drive, Bethesda, MD 20892 Review Special Emphasis Panel, Skeletal Health, 6701 Rockledge Drive, Room 3204, (Telephone Conference Call). Muscle Function/Dysfunction. MSC 7808, Bethesda, MD 20892, (301) 435– Contact Person: Martin L. Padarathsingh, Date: March 23, 2004. 0903. PhD, Scientific Review Administrator, Center Time: 1 p.m. to 3 p.m. Name of Committee: Center for Scientific for Scientific Review, National Institutes of Agenda: To review and evaluate grant Review Special Emphasis Panel, Nursing Health, 6701 Rockledge Drive, Room 6212, applications. Science Children and Families. MSC 7804, Bethesda, MD 20892, (301) 435– Place: National Institutes of Health, 6701 Date: March 30, 2004. 1717, [email protected]. Rockledge Drive, Bethesda, MD 20892 Time: 10 a.m. to 1:30 p.m. This notice is being published less than 15 (Telephone Conference Call). Agenda: To review and evaluate grant days prior to the meeting due to the timing Contact Person: Jeffrey E. DeClue, PhD, applications. limitations imposed by the review and Scientific Review Administrator, Center for Place: National Institutes of Health, 6701 funding cycle. Scientific Review, National Institutes of Rockledge Drive, Bethesda, MD 20892 Name of Committee: Center for Scientific Health, 6701 Rockledge Drive, Room 4114, (Telephone Conference Call). Review Special Emphasis Panel, Prostate MSC 7814, Bethesda, MD 20892, (301) 594– Contact Person: Gertrude K. McFarland, Consortium. 6376. RN, FAAN, DNSC, Scientific Review Date: March 17, 2004. Name of Committee: Center for Scientific Administrator, Center for Scientific Review, Time: 3 p.m. to 4 p.m. Review Special Emphasis Panel, National Institutes of Health, 6701 Rockledge Agenda: To review and evaluate grant Vasculogenesis in Ewing’s Sarcoma. Drive, Room 3156, MSC 7770, Bethesda, MD applications. Date: March 24, 2004. 20892, (301) 435–1784, [email protected]. Place: National Institutes of Health, 6701 Time: 2 p.m. to 3 p.m. Name of Committee: Center for Scientific Rockledge Drive, Bethesda, MD 20892 Agenda: To review and evaluate grant Review Special Emphasis Panel, ZRG1 RES (Telephone Call). applications. D (02): Member Conflict: Respiratory Contact Person: Mary Bell, PhD, Scientific Place: National Institutes of Health, 6701 Sciences. Review Administrator, Center for Scientific Rockledge Drive, Bethesda, MD 20892 Date: March 30, 2004. Review, National Institutes of Health, 6701 (Telephone Conference Call). Time: 11 a.m. to 4 p.m. Rockledge Drive, Room 6188, MSC 7804, Contact Person: Mary Bell, PhD, Scientific Agenda: To review and evaluate grant Bethesda, MD 20892, (301) 451–8754, Review Administrator, Center for Scientific applications. [email protected]. Review, National Institutes of Health, 6701 Place: The Fairmont Washington, DC, 2401 This notice is being published less than 15 Rockledge Drive, Room 4114, MSC 6188, M Street, NW., Washington, DC 20037. days prior to the meeting due to the timing MSC 7804, Bethesda, MD 20892, (301) 451– Contact Person: Everett E. Sinnett, PhD, limitations imposed by the review and 8754, [email protected]. Scientific Review Administrator, Center for funding cycle. Name of Committee: Center for Scientific Scientific Review, National Institutes of Health, 6701 Rockledge Drive, Room 2178, Name of Committee: Center for Scientific Review Special Emphasis Panel, Orthopedic Surgery Training Modules. MSC 7818, Bethesda, MD 20892, (301) 435– Review Special Emphasis Panel, Date: March 25, 2004. 1016, [email protected]. Endocrinology, Reproductive, Nutritional Time: 3 p.m. to 5:30 p.m. Name of Committee: Center for Scientific and Metabolic Sciences. Agenda: To review and evaluate grant Review Special Emphasis Panel, ZRG1 BST Date: March 22, 2004. applications. A 30 I: High-End Instrumentation. Time: 2 p.m. to 4:30 p.m. Place: National Institutes of Health, 6701 Date: March 31, 2004. Agenda: To review and evaluate grant Rockledge Drive, Bethesda, MD 20892 Time: 8:30 a.m. to 4 p.m. applications. (Telephone Conference Call). Agenda: To review and evaluate grant Place: National Institutes of Health, 6701 Contact Person: Jeffrey E. DeClue, PhD, applications. Rockledge Drive, Bethesda, MD 20892 Scientific Review Administrator, Center for Place: Hyatt Regency Bethesda, One (Telephone Conference Call) . Scientific Review, National Institutes of Bethesda Metro Center, 7400 Wisconsin Contact Person: Dennis Leszczynski, PhD, Health, 6701 Rockledge Drive, Room 4114, Avenue, Bethesda, MD 20814. Scientific Review Administrator, Center for MSC 7814, Bethesda, MD 20892, (301) 594– Contact Person: Sally Ann Amero, PhD, Scientific Review, National Institutes of 6376. Scientific Review Administrator, Center for Health, 6701 Rockledge Drive, Room 6170, Name of Committee: AIDS and Related Scientific Review, Genetic Sciences MSC 7892, Bethesda, MD 20892, (301) 435– Research Integrated Review Group, Integrated Review Group, National Institutes 1044, [email protected]. NeuroAIDS and other End-organ Diseases of Health, 6701 Rockledge Drive, Room 4190, This notice is being published less than 15 Study Section. MSC 7826, Bethesda, MD 20892, (301) 435– days prior to the meeting due to the timing Date: March 28–29, 2004. 1159, [email protected]. limitations imposed by the review and Time: 12 p.m. to 5:30 p.m. Name of Committee: Center for Scientific funding cycle. Agenda: To review and evaluate grant Review Special Emphasis Panel, Chronic Name of Committee: Center for Scientific applications. Fatigue Syndrome/Fibromyalgia Syndrome/ Review Special Emphasis Panel, Brain Place: La Fonda Hotel on the Plaza, 100 Temporomandibular Dysfunction. Disorders and Clinical Neuroscience Member East San Francisco St, Santa Fe, NM 87501. Date: March 31, 2004. Conflict. Contact Person: Abraham P. Bautista, MS, Time: 10 a.m. to 3 p.m. Date: March 22, 2004. MSC, PhD, Scientific Review Administrator, Agenda: To review and evaluate grant Time: 2 p.m. to 3:30 p.m. Center for Scientific Review, National applications. Agenda: To review and evaluate grant Institutes of Health, 6701 Rockledge Drive, Place: George Washington University Inn, applications. Room 5102, MSC 7852, Bethesda, MD 20892, 824 New Hampshire Ave., NW, Washington, Place: National Institutes of Health, 6701 (301) 435–1506, [email protected]. DC 20037. Rockledge Drive, Bethesda, MD 20892 Name of Committee: Center for Scientific Contact Person: J Terrell Hoffeld, DDS, (Telephone Conference Call). Review Special Emphasis Panel, Bacterial PhD, Dental Officer, USPHS, Center for Contact Person: David M. Armstrong, PhD, Iron Transport. Scientific Review, National Institutes of Scientific Review Administrator, Center for Date: March 29, 2004. Health, 6701 Rockledge Drive, Room 4116, Scientific Review, National Institutes of Time: 1:30 p.m. to 2:30 p.m. MSC 7816, Bethesda, MD 20892, (301) 435– Health, 6701 Rockledge Drive, Room 5194, Agenda: To review and evaluate grant 1781, [email protected]. MSC 7846, Bethesda, MD 20892, (301) 435– applications. Name of Committee: Center for Scientific 1253, [email protected]. Place: National Institutes of Health, 6701 Review Special Emphasis Panel, ZRG1 RUSD This notice is being published less than 15 Rockledge Drive, Bethesda, MD 20892 (04) Calcitropic Hormones and Renal days prior to the meeting due to the timing (Telephone Conference Call). Transport.
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Date: March 31, 2004. The meetings will be closed to the Name of Committee: Center for Scientific Time: 1:30 p.m. to 3 p.m. public in accordance with the Review Special Emphasis Panel Agenda: To review and evaluate grant provisions set forth in sections Bioengineering Research Partnerships. applications. 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Date: March 19, 2004. Place: National Institutes of Health, 6701 Time: 8 a.m. to 5 p.m. Rockledge Drive, Bethesda, MD 20892 as amended. The grant applications and Agenda: To review and evaluate grant (Telephone Conference Call). the discussions could disclose applications. Contact Person: M. Chris Langub, PhD, confidential trade secrets or commercial Place: The River Inn, 924 25th Street, NW., Scientific Review Administrator, Center for property such as patentable material, Washington, DC 20037. Scientific Review, National Institutes of and personal information concerning Contact Person: Sally Ann Amero, PhD, Health, 6701 Rockledge Drive, Room 4112, individuals associated with the grant Scientific Review Administrator, Center for MSC 7814, Bethesda, MD 20892, (301) 496– applications, the disclosure of which Scientific Review, Genetic Sciences 8551, [email protected]. would constitute a clearly unwarranted Integrated Review Group, National Institutes of Health, 6701 Rockledge Drive, Room 4190, Name of Committee: Center for Scientific invasion of personal privacy. Review Special Emphasis Panel, ZRG1 IFCN– MSC 7826, Bethesda, MD 20892, 301–435– D–05 Neuroendocrinology Related to Stress Name of Committee: Center for Scientific 1159, [email protected]. Feeding and Sexual Behavior. Review Special Emphasis Panel Biochemical This notice is being published less than 15 Date: March 31, 2004. Sciences and Structural Biology. days prior to the meeting due to the timing Time: 2 p.m. to 4:30 p.m. Date: March 11, 2004. limitations imposed by the review and Agenda: To review and evaluate grant Time: 5:30 p.m. to 6:30 p.m. funding cycle. applications. Agenda: To review and evaluate grant Name of Committee: Center for Scientific Place: National Institutes of Health, 6701 applications. Review Special Emphasis Panel Statistical Rockledge Drive, Bethesda, MD 20892 Place: Churchill Hotel. 1914 Connecticut Methods for Longitudinal Studies. (Telephone Conference Call). Avenue, NW., Washington, DC 20009 Date: March 24, 2004. Contact Person: Gamil C. Debbas, PhD, Contact Person: Janet Nelson, PhD, Time: 12:15 p.m. to 1 p.m. Scientific Review Administrator, Center for Scientific Review Administrator, Center for Agenda: To review and evaluate grant Scientific Review, National Institutes of Scientific Review, National Institutes of applications. Health, 6701 Rockledge Drive, Room 5170, Health, 6701 Rockledge Drive, Room 4168, Place: National Institutes of Health, 6701 MSC 7844, Bethesda, MD 20892, (301) 435– MSC 7806, Bethesda, MD 20892, 301–435– Rockledge Drive, Bethesda, MD 20892, 1018, [email protected]. 1723, [email protected]. (Telephone Conference Call). Name of Committee: Center for Scientific This notice is being published less than 15 Contact Person: Ann Hardy, DRPH, Review Special Emphasis Panel, ZRG1– days prior to the meeting due to the timing Scientific Review Administrator, Center for EMNR–H(02) Member Conflict MET. limitations imposed by the review and Scientific Review, National Institutes of Date: March 31, 2004. funding cycle. Health, 6701 Rockledge Drive, Room 3158, Time: 2 p.m. to 4:30 p.m. Name of Committee: Center for Scientific MSC 7770, Bethesda, MD 20892, (301) 435– Agenda: To review and evaluate grant Review Special Emphasis Panel AIDS 0695, [email protected]. applications. Pathogenesis. This notice is being published less than 15 Place: National Institutes of Health, 6701 Date: March 18, 2004. days prior to the meeting due to the timing Rockledge Drive, Bethesda, MD 20892 Time: 1 p.m. to 2 p.m. limitations imposed by the review and (Telephone Conference Call). Agenda: To review and evaluate grant funding cycle. Contact Person: Reed A. Graves, PhD, applications. Name of Committee: Center for Scientific Scientific Review Administrator, Center for Place: Hyatt Regency Bethesda, One Review Special Emphasis Panel Scientific Review, National Institutes of Bethesda Metro Center, 7400 Wisconsin Electroporation Gene Delivery. Health, 6701 Rockledge Drive, Room 6166, Avenue, Bethesda, MD 20814. Date: March 26, 2004. MSC 7892, Bethesda, MD 20892, (301) 402– Contact Person: Mary Clare Walker, PhD, Time: 2 p.m. to 4 p.m. 6297, [email protected]. Scientific Review Administrator, Center for Agenda: To review and evaluate grant (Catalogue of Federal Domestic Assistance Scientific Review, National Institutes of applications. Program Nos. 93.306, Comparative Medicine; Health, 6701 Rockledge Drive, Room 5104, Place: National Institutes of Health, 6701 93.333, Clinical Research, 93.306, 93.333, MSC 7852, Bethesda, MD 20892, (301) 435– Rockledge Drive, Bethesda, MD 20892, 93.337, 93.393–93.396, 93.837–93.844, 1165, [email protected]. (Telephone Conference Call). 93.846–93.878, 93.892, 93.893, National This notice is being published less than 15 Contact Person: Alec S. Liacouras, PhD, Institutes of Health, HHS) days prior to the meeting due to the timing Scientific Review Administrator, Center for limitations imposed by the review and Scientific Review, National Institutes of Dated: March 4, 2004. funding cycle. Health, 6701 Rockledge Drive, Bethesda, MD 20892, (301) 869–8266, LaVerne Y. Stringfield, Name of Committee: Center for Scientific [email protected]. Director, Office of Federal Advisory Review Special Emphasis Panel ZRG1 Committee Policy. AARR–C 11: Small Business: HIV/AIDS Name of Committee: Center for Scientific [FR Doc. 04–5522 Filed 3–10–04; 8:45 am] Vaccines. Review Special Emphasis Panel Innate and Adaptive Immunity in AIDS. BILLING CODE 4140–01–M Date: March 18, 2004. Time: 2 p.m. to 4 p.m. Date: March 29, 2004. Agenda: To review and evaluate grant Time: 9 a.m. to 5 p.m. applications. Agenda: To review and evaluate grant DEPARTMENT OF HEALTH AND applications. HUMAN SERVICES Place: Hyatt Regency Bethesda, One Bethesda Metro Center, 7400 Wisconsin Place: Holiday Inn Select Bethesda, 8120 Wisconsin Ave, Bethesda, MD 20814. National Institutes of Health Avenue, Bethesda, MD 20814. Contact Person: Mary Clare Walker, PhD, Contact Person: Mary Clare Walker, PhD, Scientific Review Administrator, Center for Center for Scientific Review; Notice of Scientific Review Administrator, Center for Scientific Review, National Institutes of Scientific Review, National Institutes of Closed Meetings Health, 6701 Rockledge Drive, Room 5104, Health, 6701 Rockledge Drive, Room 5104, MSC 7852, Bethesda, MD 20892, (301) 435– MSC 7852, Bethesda, MD 20892, (301) 435– Pursuant to section 10(d) of the 1165, [email protected]. 1165, [email protected]. Federal Advisory Committee Act, as This notice is being published less than 15 Name of Committee: Center for Scientific amended (5 U.S.C. Appendix 2), notice days prior to the meeting due to the timing Review Special Emphasis Panel Review of is hereby given of the following limitations imposed by the review and SBIR Applications. meetings. funding cycle. Date: March 31, 2004.
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Time: 12 p.m. to 4 p.m. Date: April 1, 2004. available. Individuals who plan to Agenda: To review and evaluate grant Time: 12 p.m. to 2 p.m. attend and need special assistance, such applications. Agenda: To review and evaluate grant as sign language interpretation or other Place: National Institutes of Health, 6701 applications. reasonable accommodations, should Rockledge Drive, Bethesda, MD 20892, Place: National Institutes of Health, 6701 (Telephone Conference Call). Rockledge Drive, Bethesda, MD 20892, notify the Contact Person listed below Contact Person: Mark P. Rubert, PhD, (Telephone Conference Call). in advance of the meeting. Scientific Review Administrator, Center for Contact Person: Daniel R. Kenshalo, PhD, Name of Committee: Board of Governors of Scientific Review, National Institutes of Scientific Review Administrator, Center for the Warren Grant Magnuson Clinical Center. Health, 6701 Rockledge Drive, Room 5218, Scientific Review, National Institutes of Date: March 29, 2004. MSC 7852, Bethesda, MD 20892, 301–435– Health, 6701 Rockledge Drive, Room 5176, Time: 9 a.m. to 12 p.m. 1775, [email protected]. MSC 7844, Bethesda, MD 20892, 301–435– Agenda: For discussion of planning, Name of Committee: Center for Scientific 1255, [email protected]. operational, and clinical research issues. Review Special Emphasis Panel Name of Committee: Center for Scientific Place: National Institutes of Health, Cardiovascular Sciences. Review Special Emphasis Panel Building 10, 10 Center Drive, Room 2C116, Date: April 1, 2004. Endocrinology and Biology of Bone. Bethesda, MD 20892. Time: 8:30 a.m. to 2 p.m. Date: April 1, 2004. Contact Person: Maureen E. Gormley, Agenda: To review and evaluate grant Time: 12 p.m. to 2 p.m. Executive Secretary, Warren Grant Magnuson applications. Agenda: To review and evaluate grant Clinical Center, National Institutes of Health, Place: The River Inn, 924 25th Street, NW., applications. Building 10, Room 2C146, Bethesda, MD Washington, DC 20037. Place: National Institutes of Health, 6701 20892, (301) 496–2897. Contact Person: Rajiv Kumar, PhD, Rockledge Drive, Bethesda, MD 20892, Any interested person may file written Scientific Review Administrator, Center for (Telephone Conference Call). comments with the committee by forwarding Scientific Review, National Institutes of Contact Person: M. Chris Langub, PhD, the statement to the Contact Person listed on Health, 6701 Rockledge Drive, Room 4122, Scientific Review Administrator, Center for this notice. The statement should include the MSC 7802, Bethesda, MD 20892, 301–435– Scientific Review, National Institutes of name, address, telephone number and when 1212, [email protected] Health, 6701 Rockledge Drive, Room 4112, applicable, the business or professional Name of Committee: Center for Scientific MSC 7814, Bethesda, MD 20892, 301–496– affiliation of the interested person. Review Special Emphasis Panel Zebrafish 8551, [email protected]. Information is also available on the Par. Name of Committee: Center for Scientific Institute’s/Center’s home page: http:// Date: April 1, 2004. Review Special Emphasis Panel AMCB www.cc.nih.gov/, where an agenda and any Time: 8:30 a.m. to 5 p.m. Reviewer Conflicts. additional information for the meeting will Agenda: To review and evaluate grant Date: April 2, 2004. be posted when available. applications. Time: 11 a.m. to 12:30 p.m. Dated: March 5, 2004. Place: Hyatt Regency Bethesda, One Agenda: To review and evaluate grant LaVerne Y. Stringfield, Bethesda Metro Center, 7400 Wisconsin applications. Director, Office of Federal Advisory Avenue, Bethesda, MD 20814. Place: National Institutes of Health, 6701 Committee Policy. Contact Person: Alexandra M. Ainsztein, Rockledge Drive, Bethesda, MD 20892, PhD, Scientific Review Administrator, Center (Telephone Conference Call). [FR Doc. 04–5528 Filed 3–10–04; 8:45 am] for Scientific Review, National Institutes of Contact Person: Eduardo A. Montalvo, BILLING CODE 4140–01–M Health, 6701 Rockledge Drive, Room 5144, PhD, Scientific Review Administrator, Center MSC 7840, Bethesda, MD 20892, 301–451– for Scientific Review, National Institutes of 3848, [email protected]. Health, 6701 Rockledge Drive, Room 5212, DEPARTMENT OF THE INTERIOR Name of Committee: Center for Scientific MSC 7852, Bethesda, MD 20892, 301–435– Review Special Emphasis Panel NAED 1168, [email protected]. Fish and Wildlife Service Reviewer Conflict 1. (Catalogue of Federal Domestic Assistance Date: April 1, 2004. Program Nos. 93.306, Comparative Medicine; Information Collection To Be Time: 1 p.m. to 3 p.m. 93.333, Clinical Research, 93.306, 93.333, Agenda: To review and evaluate grant 93.337, 93.393–93.396, 93.837–93.844, Submitted to the Office of Management applications. 93.846–93.878, 93.892, 93.893, National and Budget (OMB) for Approval Under Place: National Institutes of Health, 6701 Institutes of Health, HHS) the Paperwork Reduction Act; Aquatic Rockledge Drive, Bethesda, MD 20892, Animal Health Inspection Requests (Telephone Conference Call). Dated: March 5, 2004. Contact Person: Eduardo A. Montalvo, LaVerne Y. Stirngfield, AGENCY: Fish and Wildlife Service, PhD, Scientific Review Administrator, Center Director, Office of Federal Advisory Interior. for Scientific Review, National Institutes of Committee Policy. ACTION: Notice; request for comments. Health, 6701 Rockledge Drive, Room 5212, [FR Doc. 04–5527 Filed 3–10–04; 8:45 am] MSC 7852, Bethesda, MD 20892, (301) 435– SUMMARY: BILLING CODE 4140–01–M The U.S. Fish and Wildlife 1168, [email protected]. Service will submit the collection of Name of Committee: Center for Scientific information listed below to OMB for Review Special Emphasis Panel SBIR-Pain. DEPARTMENT OF HEALTH AND approval under the provisions of the Date: April 1, 2004. Paperwork Reduction Act. A description Time: 2 p.m. to 5 p.m. HUMAN SERVICES agenda: To review and evaluate grant of the information collection applications. National Institutes of Health requirement is included in this notice. Place: National Institutes of Health, 6701 If you wish to obtain copies of the Rockledge Drive, Bethesda, MD 20892, Clinical Center; Notice of Meeting proposed information collection (Telephone Conference Call). Pursuant to section 10(a) of the requirement, related forms, or Contact Person: Bernard F. Driscoll, PhD, explanatory material, contact the Scientific Review Administrator, Center for Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice Service Information Collection Officer at Scientific Review, National Institutes of the address listed below. Health, 6701 Rockledge Drive, Room 5184, is hereby given of a meeting of the MSC 7844, Bethesda, MD 20892, (301) 435– Board of Governors of the Warren Grant DATES: Submit comments on or before 1242, [email protected]. Magnuson Clinical Center. May 10, 2004. Name of Committee: Center for Scientific The meeting will be open to the ADDRESSES: Send your comments on the Review Special Emphasis Panel OPOIDS. public, with attendance limited to space requirement to Anissa Craghead,
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Information Collection Clearance animals, prior to movement to or from Total Annual Responses: Officer, U.S. Fish and Wildlife Service, hatchery facilities, further allow Service Approximately 1,000 (estimate based on MS 222–ARLSQ, 4401 N. Fairfax Drive, managers and biologists to prevent the previous collection activities). Arlington, VA 22203; (703) 358–2269 introduction of pathogenic organisms to Total Annual Burden Hours: 250 (fax); or [email protected] (e- areas free of such organisms, thereby hours. We estimate the reporting burden mail). helping to ensure the health and well- at fifteen minutes for each of the total FOR FURTHER INFORMATION CONTACT: To being of our aquatic animal resources. 1,000 submissions, or approximately request a copy of the information We have conducted aquatic animal 250 hours total. collection request, explanatory health inspections for over 25 years and Title: Aquatic Animal Health information, or related forms, contact wild fish health surveys for over 5 years. Inspection Request. Anissa Craghead by phone at (703) 358– In order to effectively carry out these OMB Control Number: 1018–xxxx. 2445 or by e-mail at investigations, it is essential that we Form number: 3–225. [email protected]. gather information on the animals being Frequency of Collection: On occasion, as requested by the submitting SUPPLEMENTARY INFORMATION: The Office tested and the samples taken from that individual or entity. of Management and Budget (OMB) group of animals, which are tracked Description of Respondents: State regulations at 5 CFR 1320, which throughout the process. To gather this resource agencies and other individuals implement provisions of the Paperwork information, we have used a National Reduction Act of 1995 (44 U.S.C. 3501 Wild Fish Health Survey Submission seeking aquatic animal health et seq.), require that interested parties form and an Aquatic Animal Health investigations on samples obtained from and affected agencies have an Inspection Request form. These forms captive animals. opportunity to comment on information are completed by our stakeholders and Total Annual Responses: collection and recordkeeping activities partners when submitting samples for Approximately 25 (estimate based on (see CFR 1320.8(d)). The U.S. Fish and aquatic animal health evaluations. previous collection activities). Wildlife Service (we, or the Service) These forms identify the source of the Total Annual Burden Hours: 4 hours. plans to submit a request to OMB for samples submitted and allow laboratory We estimate the reporting burden at ten approval of a collection of information personnel to identify and track the minutes for each of the total 25 related to fish health evaluations. We samples and to provide accurate results. submissions, or approximately 4 hours are requesting a 3-year term of approval The forms that we use to collect this total. We invite comments on this proposed for these collection activities. information were not approved by the Federal agencies may not conduct or Office of Management and Budget information collection on the following: sponsor, and a person is not required to (OMB). We are initiating the process to (1) Whether the collection of respond to, a collection of information request OMB approval of these forms information is necessary for the proper unless it displays a currently valid OMB through this publication and to request performance of the function of the control number. public comment on this information agency, including whether the The Fish and Wildlife Act of 1956 (16 collection. information will have practical utility; U.S.C. 742f) requires the Department of This collection helped, and would (2) the accuracy of our estimate of the the Interior to take steps ‘‘required for help, us gather information on the burden of the collection of information; the development, advancement, source and identity of samples (3) ways to enhance the quality, utility, management, conservation, and submitted for aquatic animal health and clarity of the information to be protection of fishery resources.’’ In investigations. Optional data requested collected; and (4) ways to minimize the addition, the Endangered Species Act of on the National Wild Fish Health burden of the collection on respondents. 1973 (16 U.S.C. 1531–1544), the Survey form can also be used to Dated: March 1, 2004. Wildlife Coordination Act (16 U.S.C. research the epidemiology of various Anissa Craghead, 661–666c), and the Anadromous Fish health issues and improve managers’ Information Collection Officer, Fish and Conservation Act (16 U.S.C. 757a–757g) and biologists’ ability to make informed Wildlife Service. each authorize the Department of the decisions with regard to resource [FR Doc. 04–5449 Filed 3–10–04; 8:45 am] Interior to enter into cooperative management as it relates to aquatic BILLING CODE 4310–55–P agreements with stakeholders to protect animal health. The information and conserve fishery resources. collection is voluntary; it is conducted Aquatic animal health data collected only after an individual requests that DEPARTMENT OF THE INTERIOR on both hatchery-raised and wild the Service carry out an aquatic animal animals is essential to making good health investigation. Bureau of Land Management management decisions. The data allows We used, and would use, two forms [OR–030–1020–XX–028H; HAG 04–0116] Service and other managers and to collect this information. They are biologists to determine areas in the described below. Meeting Notice for the John Day/Snake environment where aquatic animal Title: National Wild Fish Health Resource Advisory Council pathogens pose a high risk to aquatic Survey—Submission Form. animal resources. The information is AGENCY: Bureau of Land Management OMB Control Number: 1018–xxxx. also used to develop alternative (BLM), Vale District. management techniques to help prevent Form number: 3–2277. SUMMARY: The John Day/Snake Resource the potential negative impacts of aquatic Frequency of Collection: On occasion, Advisory Council will meet on animal pathogens on animals as requested by the submitting Thursday, April 22, 2004, at the Oxford reintroduced into the environment. individual or entity. Suites, 2400 SW Court Place, Pendleton, Similarly, the determination of health Description of Respondents: State OR 97801, 8 a.m. to 4 p.m. (Pacific status of wild populations and/or resource agencies, conservation groups, time). hatchery-raised populations is essential and other individuals seeking aquatic The meeting may include such topics to determining appropriate stocking animal health investigations on samples as, Wild Horse & Burro Program; Blue locations. Health inspections of aquatic obtained from the wild. Mountain Revision Team; and Healthy
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Forest Restoration Act. There will also Dated: March 5, 2004. DC 20044–7611 or by faxing or e- be subcommittee updates on OHV, Karla Bird, mailing a request to Tonia Fleetwood Planning and Sage Grouse and other Andrews Resource Area Field Manager. ([email protected]), fax no. matters as may reasonably come before [FR Doc. 04–5446 Filed 3–10–04; 8:45 am] (202) 514–0097, phone confirmation the board. BILLING CODE 4310–AG–P number (202) 514–1547. In requesting a The entire meeting is open to the copy from the Consent Decree Library, public. For a copy of the information to please enclose a check in the amount of be distributed to the Council members, DEPARTMENT OF JUSTICE $10.50 (25 cents per page reproduction please submit a written request to the cost) payable to the U.S. Treasury. Vale District Office 10 days prior to the Notice of Lodging of Consent Decree Robert Maher, Under the Comprehensive meeting. Public comment is scheduled Assistant Chief, Environmental, Enforcement for 11 a.m. to 11:15 a.m., Pacific time Environmental Response, Section, Environment and Natural Resources (p.t.). Compensation and Liability Act of 1980 Division. FOR FURTHER INFORMATION CONTACT: Notice is hereby given that on [FR Doc. 04–5420 Filed 3–10–04; 8:45 am] Additional information concerning the February 27, 2004, a proposed consent BILLING CODE 4410–15–M John Day/Snake Resource Advisory decree (‘‘decree’’) in United States v. Council may be obtained from Peggy Dan and Harriet Alexander, et al., Civil Diegan, Management Assistant/ Action No. C02–5269RJB, was lodged DEPARTMENT OF JUSTICE with the United States District Court for Webmaster, Vale District Office, 100 Notice of Lodging of Consent Decree the Western District of Washington. Oregon Street, Vale, OR 97918, (541) Under the Comprehensive In this action the United States sought 473–3144, or e-mail Environmental Response, _ recovery of response costs under section Peggy [email protected]. Compensation, and Liability Act 107 of the Comprehensive Dated: March 5, 2004. Environmental Response, Compensation Notice is hereby given that on David R. Henderson, and Liability Act of 1980, 42 U.S.C. February 23, 2004, a proposed Consent District Manager. 9607, for costs incurred by the United Decree in United States v. Buckeye Egg [FR Doc. 04–5443 Filed 3–10–04; 8:45 am] States in connection with the Alexander Farm, L.P. et al., Civil Action No. 3:03 BILLING CODE 4310–33–P Farms Superfund Site located in CV 7681, was lodged with the United Grandview, Washington. Under the States District Court for the Northern decree, defendants Dan and Harriet District of Ohio, which will resolve DEPARTMENT OF THE INTERIOR Alexander will reimburse the United claims asserted against defendants States $3.55 million in past costs and Buckeye Egg Farm L.P. (‘‘Buckeye’’), its Bureau of Land Management receive a covenant not to sue for costs general partner Croton Farm, LLC through October 31, 2003. Through the (‘‘Croton Farm’’), and Anton Pohlmann, [OR–027–1020–PN–020H; G–04–0117] end of October 2003, the United States the sole member of Croton Farm and the has expended approximately $4.0 99% interest limited partner of Buckeye, Notice To Cancel Date of a Public million at the Site, inclusive of $543,000 in an Amended Complaint also filed on Meeting, Steens Mountain Advisory in DOJ costs and $309,988 interest. The February 23, 2004. Buckeye is the Council recovery of $3.55 million represents nation’s fourth largest egg producer. In this action the United States seeks AGENCY: Bureau of Land Management approximately 96% of past costs, (BLM), Interior. exclusive of interest. final penalties and injunctive relief The Department of Justice (‘‘DOJ’’) against Defendants for their failure to ACTION: Cancel one day of public will receive for a period of thirty (30) comply with an EPA request for meeting for the Steens Mountain days from the date of this publication information and administrative order Advisory Council. comments relating to the decree. under sections 114 and 113 of the Clean Comments should be addressed to the Air Act, as well for violations of PSD SUMMARY: The previously scheduled Assistant Attorney General, regulations and the Ohio SIP at three April 12 and 13, 2004, Steens Mountain Environment and Natural Resources Buckeye facilities in Croton, Marseilles, Advisory Council Meeting (SMAC) to be Division, P.O. Box 7611, U.S. and Mount Victory, Ohio. The claims held at the Bureau of Land Management Department of Justice, Washington, DC pertain to emissions from Buckeye’s (BLM), Burns District Office, 28910 20044–7611, and should refer to United barns of particulate matter and Highway 20 West, Hines, Oregon 97738, States v. Dan and Harriet Alexander, et ammonia. Preliminary air emission tests has been changed to occur only on April al., D.J. Ref. 90–11–2–07580. required by EPA indicate that air 13, 2004. The April 12, 2004 public The decree may be examined at the emissions of particulate matter (PM) meeting date has been cancelled. The Office of the United States Attorney, from Buckeye’s facilities are original Federal Register notice Western District of Washington, 601 significant—over 550 tons/year (tpy) announcing the meeting was published Union Street, 50100 Two Union Square, from the Croton facility, over 700 tpy Tuesday, December 2, 2003, page Seattle, Washington 98101–3903, and at from the Marseilles facility, and over number 67468. U.S. EPA Region X, U.S. Environmental 600 tpy from the Mt. Victory facility. FOR FURTHER INFORMATION CONTACT: Protection Agency, 1200 Sixth Avenue, Many scientific studies have linked Additional information concerning the Seattle, Washington 98101. During the particulate matter to aggravated asthma, SMAC may be obtained from Rhonda public comment period, the decree may coughing, difficult or painful breathing, Karges, Management Support Specialist, also be examined on the following DOJ chronic bronchitis and decreased lung Burns District Office, 28910 Highway 20 Web site http://www.usdoj.gov/enrd/ function, among other ailments (see West, Hines, Oregon, 97738, (541) 573– open.html. A copy of the decree may http://www.epa.gov/air/urbanair/pm/ 4400 or [email protected] or also be obtained by mail from the index.html.) Buckeye also reported from the following Web site: http:// Consent Decree Library, P.O. Box 7611, ammonia emissions of over 800 tpy www.or.blm.gov/Steens. U.S. Department of Justice, Washington, from its Croton facility, over 375 tpy
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from the Marseilles facility, and nearly Decree may also be examined on the Environment and Natural Resources 275 tpy from the Mt. Victory facility. following Web site, http:// Division, P.O. Box 7611, U.S. Ammonia is a lung irritant. www.usdoj.gov/enrd/open.html. A copy Department of Justice, Washington, DC Under the proposed Consent Decree, of the proposed Consent Decree may 20044–7611, and should refer to United Defendants will pay an $880,598 civil also be obtained by mail from the States v. Marvin Mahan, et al., D.J. Ref. penalty and will spend over $1.6 Consent Decree Library, PO Box 7611, 90–11–3–06104/1&2. million to install and test a system to U.S. Department of Justice, Washington, The Consent Decree may be examined capture particulate matter in each of its DC 20044–7611, or by faxing or e- at the Office of the United States barns at the Marseilles and Mt. Victory mailing a request to Tonia Fleetwood Attorney for the District of New Jersey, facilities before it is vented to the ([email protected]), fax no. 970 Broad Street, Room 400, Newark, outside. They will also use enzyme (202) 514–0097, phone confirmation New Jersey 07102, and at the offices of additive products on the manure number (202) 514–1547. In requesting a EPA Region II,290 Broadway, New York, accumulated in the layer barns to copy, please enclose a check in the New York 10007. During the public reduce ammonia emissions by at least amount of $17.75 (71 pages at 25 cents comment period, the Consent Decree, 50 percent. Additional controls are per page reproduction cost) payable to may also be examined on the following required if dust or ammonia emissions the U.S. Treasury. Department of Justice Web site http:// are not satisfactorily reduced. www.usdoj.gov/enrd/open.html. A copy The Croton facility is required by the William D. Brighton, of the Consent Decree may also be state of Ohio to install belt battery Environmental Enforcement Section, obtained by mail from the Consent manure handling systems at its layer Environment and Natural Resources Division. Decree Library, P.O. Box 7611, U.S. barns over the next five years. Because [FR Doc. 04–5421 Filed 3–10–04; 8:45 am] Department of Justice, Washington, DC of this requirement, the Consent Decree BILLING CODE 4410–15–M 20044–7611, or by faxing or e-mailing a requires alternative controls for the request to Tonia Fleetwood Croton facility. These include changes ([email protected]), fax no. in bird variety and feed, which are DEPARTMENT OF JUSTICE (202) 514–0097, phone confirmation expected to reduce both particulate Notice of Lodging of Consent Decree number (202) 514–1547. In requesting a matter and ammonia emissions. The Under the Comprehensive copy from the Consent Decree Library, Consent Decree requires extensive Environmental Response, please enclose a check in the amount of testing of these measures. If they are not Compensation and Liability Act $12.00 (25 cents per page reproduction successful, Buckeye will be required to cost), payable to the U.S. Treasury. install particulate impaction systems In accordance with 28 U.S.C. 50.7 and and other appropriate PM controls for section 122 of the Comprehensive Robert Gluck, the converted barns. The barns will also Environmental Response, Compensation Assistant Section Chief, Environmental be treated with the enzyme product for and Liability Act (‘‘CERCLA’’), 42 U.S.C. Enforcement Section, Environment and Natural Resources Division. ammonia control. The combination of 9622, notice is hereby given that on particulate and ammonia controls at March 2, 2004, a proposed Consent [FR Doc. 04–5418 Filed 3–10–04; 8:45 am] these facilities is also expected to Decree in the consolidated actions of BILLING CODE 4410–15–M reduce substantially fly infestations, United States v. Marvin Mahan, et al., which have been a subject of repeated C.A. No. 00CV4953 (WHW) and United DEPARTMENT OF JUSTICE state and private litigation against States v. Transtech Industries, Inc., C.A. Buckeye. No. 01–5398 (WHW), was lodged with Notice of Proposed Settlement While Buckeye recently sold its three the United States District Court for the Agreement Under the Oil Pollution Act facilities to Ohio Fresh Eggs LLC, the District of New Jersey. of 1990 settlement requires Buckeye to bind the In these consolidated actions in the purchaser to implement the United States, on behalf of the United Notice is hereby given that the United environmental improvements required States Department of the U.S. States Department of Justice, on behalf under the Consent Decree. Buckeye Environmental Protection Agency of the U.S. Department of Commerce, remains liable for any violations. (‘‘EPA’’), seeks reimbursement of certain National Oceanic and Atmospheric The Department of Justice will receive response costs incurred and to be Administration (‘‘NOAA’’) and the U.S. for a period of thirty (30) days from the incurred in connection with response Department of the Interior, Fish and date of this publication comments actions at the Chemsol, Inc. Superfund Wildlife Service (‘‘DOI’’) (hereinafter relating to the Consent Decree. Site, located in Piscataway, New Jersey referred to together as the ‘‘Settling Comments should be addressed to the (the ‘‘Site’’). The Complaints allege that Agencies’’) have reached a settlement Assistant Attorney General of the defendants Marvin Mahan, Tang Realty, with Sociedad Naviera Ultragas Ltda. Environmental and Natural Resources Inc., and Transtech Industries, Inc., are (‘‘Sociedad’’) regarding claims for Division, Department of Justice, P.O. liable under section 107(a) of CERCLA, injuries to natural resources arising from Box 7611, Washington, DC 20044, and 42 U.S.C. 9607(a). Pursuant to the an oil spill that occurred in Chelsea should refer to United States v. Buckeye Consent Decree, the defendants will Creek, East Boston, Massachusetts. Egg Farm, L.P. et al., D.J. Ref. 90–5–2– reimburse, on an ability to pay basis, the The Settling Agencies are acting in 1–07262. plaintiff United States for certain their capacities as designated natural The Consent Decree may be examined response costs incurred and to be resource trustees under the Oil at the Office of the United States incurred by the plaintiff in remediating Pollution Act of 1990, 33 U.S.C. 2701 et Attorney, Northern District of Ohio, 4 the site. seq. to recover damages for natural Seagate, Suite 308, Toledo, Ohio 43604, The Department of Justice will receive resources, as authorized by 33 U.S.C. or at the Region 5 Office of the for a period of thirty (30) days from the 2702(b)(2)(A). The oil spill occurred on Environmental Protection Agency, 77 date of this publication comments June 8, 2000, when a tugboat collided West Jackson Street, Chicago, Illinois relating to the Consent Decree. with a vessel, spilling approximately 60604–3590. During the public Comments should be addressed to the 58,000 gallons of fuel oil into Chelsea comment period the proposed Consent Assistant Attorney General, Creek.
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Pursuant to the Agreement, Sociedad General and the Federal Trade Video-Enhanced Residential ADSL will pay $42,136.00 to NOAA and Commission disclosing a change in its Broadband Technology has filed written $6,479.00 to DOI, as reimbursement for membership status. The notifications notifications simultaneously with the the Settling Agencies’ damage were filed for the purpose of extending Attorney General and the Federal Trade assessment costs. In addition, Sociedad the Act’s provisions limiting the Commission disclosing (1) the identities will pay $100,000 to fund the recovery of antitrust plaintiffs to actual of the parties and (2) the nature and performance of two restoration projects. damages under specified circumstances. objectives of the venture. The The Department of Justice will receive Specifically, Keystone Cement notifications were filed for the purpose for a period of thirty (30) days from the Company, Exton, PA has been added as of invoking the Act’s provisions limiting date of this publication comments a Member. Dixon-Marquette has been the recovery of antitrust plaintiffs to relating to the proposed Settlement acquired by CEMEX, a Member, and is actual damages under specified Agreement. Comments should be no longer listed. Florida Rock circumstances. Pursuant to Section 6(b) addressed to the Assistant Attorney Industries, Jacksonville, FL is no longer of the Act, the identities of the parties General, Environment and Natural a Member. GCC Dacotah and GCC Rio are Sarnoff Corporation, Princeton, NJ; Resources Division, P.O. Box 7611, U.S. Grande, El Paso, TX have changed their SBC Technology Resources, Inc., Department of Justice, Washington, DC names to GCC of America, Inc. Lone Austin, TX; Alcatel USA, Plano, TX; 20044–7611, and should refer to the Star Industries and RC Cement Co., and Thomson, Inc., Princeton, NJ. The Settlement Agreement among NOAA, Bethlehem, PA have changed their nature and objectives of the venture are DOI, and Sociedad Naviera Ultragas names to Buzzi Unicem USA Inc. North to accelerate adoption of ADSL by Ltda, D.J. Ref. 90–5–1–1–07462. Texas Cement Company, Houston, TX creating technology that will allow The proposed Settlement Agreement has changed its name to Ash Grove telecom operators to deploy a broad may be examined at the Office of Texas, L.P. The Affiliate Members, range of video services (in addition to NOAA, Office of General Counsel, One California Cement Promotion Council, data) with functionality that will make Blackburn Drive, Suite 205, Gloucester, Citrus Heights, CA and Cement and these services a strong competitor to MA 01930. During the public comment Concrete Pavement Council of Texas, cable and satellite offerings. Cable and period, the proposed Settlement Euless, TX have changed their names, satellite presently offer viewers a Agreement may also be examined on the respectively, to California Nevada selection of over 100 channels, following Department of Justice Web Cement Production Council and Cement including live events. The new ADSL site, http://www.usdoj.gov/enrd/ Council of Texas. services will offer subscribers a similar open.html. A copy of the proposed No other changes have been made in selection. The revenue from these Settlement Agreement may be obtained either the membership or planned entertainment services will help defray by mail from the Consent Decree activity of the group research project. the cost of ADSL deployment and make Library, P.O. Box 7611, U.S. Department Membership in this group research other services economically viable on an of Justice, Washington, DC 20044–7611 project remains open, and PCA intends incremental basis. or by faxing or e-mailing a request to to file additional written notification Dorothy B. Fountain, Tonia Fleetwood disclosing all changes in membership. ([email protected]), fax no. On January 7, 1985, PCA filed its Deputy Director of Operations, Antitrust Division. (202) 514–0097, telephone confirmation original notification pursuant to Section number (202) 514–1547. If requesting a 6(a) or the Act. The Department of [FR Doc. 04–5455 Filed 3–10–04; 8:45 am] copy of the proposed Settlement Justice published a notice in the Federal BILLING CODE 4410–11–M Agreement please so note and enclose a Register pursuant to section 6(b) of the check in the amount of $3.25 (25 cents Act on February 5, 1985 (50 FR 5015). DEPARTMENT OF JUSTICE per page reproduction cost) payable to The last notification was filed with the U.S. Treasury. the Department on September 26, 2003. Drug Enforcement Administration A notice was published in the Federal Ronald Gluck, Register pursuant to Section 6(b) of the Importer of Controlled Substances; Assistant Chief, Environmental Enforcement Act on October 22, 2003 (68 FR 60416). Notice of Registration Section, Environment and Natural Resources Division. Dorothy B. Fountain, By Notice dated November 14, 2003 [FR Doc. 04–5419 Filed 3–10–04; 8:45 am] Deputy Director of Operations, Antitrust and published in the Federal Register BILLING CODE 4410–15–M Division. on December 2, 2003, (68 FR 67473), [FR Doc. 04–5456 Filed 3–10–04; 8:45 am] Abbott Laboratories, 1776 North BILLING CODE 4410–11–M Centennial Drive, McPherson, Kansas DEPARTMENT OF JUSTICE 67460–1247, made application by renewal to the Drug Enforcement Antitrust Division DEPARTMENT OF JUSTICE Administration (DEA) to be registered as an importer of Remifentanil (9739), a Notice Pursuant to the National Antitrust Division Cooperative Research and Production basic class of controlled substance listed Act of 1993—Portland Cement Notice Pursuant to the National in Schedule II. Association Cooperative Research and Production The film plans to import the Act of 1993—Video-Enhanced remifentanil to manufacture a controlled Notice is hereby given that, on Residential ADSL Broadband substance for distribution to its February 10, 2004, pursuant to Section Technology customers. 6(a), of the National Cooperative No comments or objections have been Research and Production Act of 1993, Notice is hereby given that, on received. DEA has considered the 15 U.S.C. 4301 et seq. (‘‘the Act’’), February 17, 2004, pursuant to Section factors in Title 21, United States Code, Portland Cement Association (‘‘PCA’’) 6(a) of the National Cooperative section 823(a) and determined that the has filed written notifications Research and Production Act of 1993, registration of Abbott Laboratories to simultaneously with the Attorney 15 U.S.C. 4301 et seq. (‘‘the Act’’), import the listed controlled substance is
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consistent with the public interest and received, concludes that ANM has distribution procedures with Mr. Fawaz, with United States obligations under waived its hearing right. See Aqui and provided him with appropriate international treaties, conventions, or Enterprises, 67 FR 12576 (2002). After materials regarding DEA requirements protocols in effect on May 1, 1971, at considering relevant material from the for handlers of listed chemicals. this time. DEA has investigated Abbott investigative file in this matter, the With regard to its anticipated sale of Laboratories on a regular basis to ensure Acting Deputy Administrator now listed chemical products, Mr. Fawaz that the company’s continued enters her final order without a hearing estimated that ANM’s annual sales registration is consistent with the public pursuant to 21 CFR 1309.53(c) and (d) involving list I chemicals would be interest. This investigation included and 1316.67 (2003). The Acting Deputy approximately 1% of the firm’s total inspection and testing of the company’s Administrator finds as follows: sales. Mr. Fawaz stated that ANM’s physical security systems, verification List I chemicals are those that may be customers were primarily located of the company’s compliance with state used in the manufacture of a controlled within a thirty mile area of Tampa, and and local laws, and a review of the substance in violation of the Controlled he then provided DEA investigators company’s background and history. Substances Act. 21 U.S.C. 802(34); 21 with a list of twenty-seven customers Therefore, pursuant to section 1008(a) of CFR 1310.02(a). Pseudoephedrine and who purchased cigars, cigarettes and the Controlled Substances Import and ephedrine are list I chemicals over-the-counter items from ANM. The Export Act and in accordance with Title commonly used to illegally manufacture customer list was comprised primarily 21, Code of Federal Regulations, methamphetamine, a Schedule II of gas stations and convenience stores. § 1301.34, the above firm is granted controlled substance. According to the investigative file, Mr. registration as an importer of the basic Phenylpropanolamine, also a list I Fawaz further disclosed that he had no class of controlled substance listed chemical, is presently a legitimately prior experience in the sale or marketing above. manufactured and distributed product of over-the-counter medications that used to provide relief of the symptoms contain list I chemicals, and he was Dated: March 3, 2004. resulting from irritation of the sinus, unfamiliar with the milligram strengths William J. Walker, nasal and upper respiratory tract tissues, of the listed chemical products that he Deputy Assistant Administrator, Office of and is also used for weight control. planned to sell. Diversion Control, Drug Enforcement Phenylpropanolamine is also a A DEA investigator then inquired Administration. precursor chemical used in the illicit with the State of Florida, Planning and [FR Doc. 04–5472 Filed 3–10–04; 8:45 am] manufacture of methamphetamine and Growth Management/Permit and Zoning BILLING CODE 4410–09–M amphetamine. Methamphetamine is an Department (the Zoning Department) for extremely potent central nervous system Hillsborough County to determine stimulant, and its abuse is an ongoing whether Mr. Fawaz’s operation of a DEPARTMENT OF JUSTICE public health concern in the United business at a residential location was in compliance with state zoning Drug Enforcement Administration States. The Acting Deputy Administrator’s requirements. DEA was informed by a ANM Wholesale; Denial of Application review of the investigative file reveals representative of the Zoning Department that in or around early 2001, an that Mr. Fawaz’s residence was located On February 28,2003, the Deputy application dated January 9, 2001, was in a ‘‘Residential Area Only Zone’’ and Assistant Administrator, Office of received by DEA on behalf of ANM not in a ‘‘Commercial Zone Area’’ of Diversion Control, Drug Enforcement located in Tampa, Florida. The Hillsborough County. Therefore, ANM Administration (DEA), issued an Order application was submitted on behalf of was not in compliance with the zoning to Show Cause to ANM Wholesale ANM by its owner, Mohamed A. Fawaz laws for Hillsborough County. (ANM) proposing to deny its application (Mr. Fawaz). ANM sought DEA After receiving the above information, executed on January 9, 2001, for DEA registration as a distributor of the list I a DEA investigator advised Mr. Fawaz of Certificate of Registration as a chemicals ephedrine, pseudoephedrine, the need to obtain zoning authorization distributor of list I chemicals. The Order and phenylpropanolamine. There is no for his business. DEA subsequently to Show Cause alleged that granting the evidence in the investigative file that learned that Mr. Fawaz contacted the application of ANM would be ANM has sought to modify its pending Zoning Department where he disclosed inconsistent with the public interest as application in any respect. his plan to keep list I chemical products that term is used in 21 U.S.C. 823(h) and Following receipt of the above stored in his vehicle at an undisclosed 824(a). The Order to Show Cause also application, on April 25, 2001, DEA location. The Zoning Department then notified ANM that should no request for diversion investigators conducted an informed Mr. Fawaz that he could apply a hearing be filed within 30 days, its on-site pre-registration inspection at for a rezoning permit for his place of hearing right would be deemed waived. ANM’s proposed registered location. residence; however Mr. Fawaz declined According to the DEA investigative The location requested by ANM for DEA to submit the application. file, the Order to Show Cause was sent registration was Mr. Fawaz’s residence. DEA subsequently informed Mr. by certified mail to ANM at its proposed Mr. Fawaz informed DEA investigators Fawaz that based on the latter’s registered location in Tampa, Florida that since 2000, ANM’s primary expressed plan to store listed chemical and was received on March 15, 2003. business was selling cigars, cigarettes products in an automobile, it was DEA has not received a request for and over-the-counter items to gas unlikely that ANM’s application for hearing or any other reply from ANM or stations located throughout registration would be approved, since anyone purporting to represent the Hillsborough and Polk counties in storage of such products in this manner company in this matter. Florida. These items were sold out of would not be in compliance with DEA Therefore, the Acting Deputy Mr. Fawaz’s residence. During the security and controlled premise Administrator of DEA, finding that (1) inspection, investigators advised Mr. requirements. Mr. Fawaz was further thirty days having passed since the Fawaz of regulatory requirements and reminded of the Florida zoning delivery of the Order to Show Cause to problems surrounding the diversion of requirements for his business. Mr. the applicant’s last known address, and list I chemicals. The investigators also Fawaz then informed DEA investigators (2) no request for a hearing having been reviewed security, recordkeeping and that he declined the opportunity to
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apply for a rezoning permit because he As of the date of DEA’s inspection, the Among the listed chemical products did not think an application would be Zoning Department had not approved that the firm seeks to distribute is approved. He further expressed the ANM for a permit because of the firm’s phenylpropanolamine. In light of this desire not to relocate his business or his location in a residential area. Mr. Fawaz development, the Acting Deputy occupational license from his residence. does not own a zoning permit for his Administrator also finds factor five Pursuant to 21 U.S.C. 823(h), the business, and at the time of DEA’s relevant to ANM’s request to distribute Acting Deputy Administrator may deny investigation, he had no intention of phenylpropanolamine, and the apparent an application for Certificate of obtaining one. The failure to obtain a lack of safety associated with the use of Registration if she determines that proper zoning permit for business that product. DEA has previously granting the registration would be purposes has been cited under factor determined that an applicant’s request inconsistent with the public interest as two as a basis for the denial of an to distribute phenylpropanolamine determined under that section. Section application for DEA registration to constitutes a ground under factor five 823(h) requires the following factors be distribute list I chemicals. See, Daniel E. for denial for an application for considered in determining the public Epps, Jr., 67 FR 9987 (2002). registration. Shani Distributors, 68 FR interest: With respect to factor four, the 62324 (2003). Based on the foregoing, (1) Maintenance of effective controls applicant’s past experience in the the Acting Deputy Administrator against diversion of listed chemicals distribution of chemicals, the Acting concludes that granting the pending into other than legitimate channels; Deputy Administrator finds this factor application of ANM would be (2) Compliance with applicable relevant to Mr. Fawaz’s lack of inconsistent with the public interest. Federal, State, and local law; experience in the handling of list I Accordingly, the Acting Deputy (3) Any prior conviction record under chemical products. In prior DEA Administrator of the Drug Enforcement Federal or State laws relating to decisions, the lack of experience in the Administration, pursuant to the controlled substances or to chemicals handling list I chemicals was a factor in authority vested in her by 21 U.S.C. 823 controlled under Federal or State law; a determination to deny a pending and 28 CFR 0.100(b) and 0.104, hereby (4) Any past experience in the application for DEA registration. See, orders that the pending application for manufacture and distribution of Matthew D. Graham, 67 FR 10229 DEA Certificate of Registration, chemicals; and (2002); Xtreme Enterprises, Inc., 67 FR previously submitted by ANM (5) Such other factors as are relevant 76195 (2002). Therefore, this factor Wholesale be, and it hereby is, denied. to and consistent with the public health similarly weighs against the granting of This order is effective April 12, 2004. and safety. ANM’s pending application. In As with the public interest analysis addition, the Acting Deputy Dated: February 20, 2004. for practitioners and pharmacies Administrator finds factor four relevant Michele M. Leonhart, pursuant to subsection (f) of section 823, to Ms. Fawaz’s apparent unfamiliarity Acting Deputy Administrator. these factors are to be considered in the with listed chemical products, as [FR Doc. 04–5479 Filed 3–10–04; 8:45 am] disjunctive; the Acting Deputy evidenced by his lack of knowledge BILLING CODE 4410–09–M Administrator may rely on any one or regarding the milligram strengths of the combination of factors, and may give listed chemical products that he each factor the weight she deems planned to sell. DEPARTMENT OF JUSTICE appropriate in determining whether a With respect to factor five, other registration should be revoked or an factors relevant to and consistent with Drug Enforcement Administration application for registration denied. See, the public safety, the Acting Deputy e.g. Energy Outlet, 64 FR 14269 (1999). Administrator finds this factor relevant Manufacturer of Controlled See also Henry J. Schwartz, Jr., M.D., 54 to ANM’s proposal to distribute listed Substances; Notice of Registration FR 16422 (1989). chemical products primarily to By Notice dated September 17, 2003, The Acting Deputy Administrator convenience stores and gas stations. and published in the Federal Register finds factors one, two, four and five While there are no specific prohibitions on October 7, 2003, (68 FR 57928), relevant to ANM’s pending registration under the Controlled Substance Act Cayman Chemical Company, 1180 East application. regarding the sale of listed chemical Ellsworth Road, Ann Arbor, Michigan With regard to factor one, products to these entities, DEA has 48108, made application by renewal to maintenance of effective controls nevertheless found that gas stations and the Drug Enforcement Administration against diversion of listed chemicals convenience stores constitute sources for registration as a bulk manufacturer into other than legitimate channels, the for the diversion of listed chemical of the basic classes of controlled DEA pre-registration inspection products. See, e.g., Sinbad Distributing, substances listed below. documented inadequate security at the 67 FR 10232, 10233 (2002); K.V.M. proposed registered location of ANM. Enterprises, 67 FR 70968 (2002) (denial Drug Schedule Mr. Fawaz proposed initially to store of application based in part upon listed chemical products at his information developed by DEA that the Marihauna (7360) ...... I residential location. However, when he applicant proposed to sell listed Tetrahydrocannabinols (7370) ..... I discovered that his residential location chemicals to gas stations, and the fact did not comply with local zoning laws, that these establishments in turn have The firm plans to manufacture small Mr. Fawaz then proposed storing listed sold listed chemical products to quantities of marijuana derivatives for chemicals in a vehicle. individuals engaged in the illicit research purpose. With regard to factor two, compliance manufacture of methamphetamine); No comments or objections have been with applicable Federal, State, and local Xtreme Enterprises, Inc., supra. received. DEA has considered the law, the Acting Deputy Administrator As noted above, there is no evidence factors in Title 21, United States Code, notes that Florida state and county law in the investigative file that ANM ever Section 823(a) and determined that the requires zoning approval for the sought to modify its pending registration of Cayman Chemical operation of a particular business in application with respect to listed Company to manufacture the listed areas known as ‘‘Commercial Zones.’’ chemical products it seeks to distribute. controlled substance is consistent with
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the public interest at this time. DEA has application submitted by the above firm ephedrine are list I chemicals used to investigated Cayman Chemical for registration as a bulk manufacturer illegally manufacture Company to ensure that the company’s of the basic class of controlled substance methamphetamine, a Schedule II registration is consistent with the public listed is granted. controlled substance. interest. This investigation has included Dated: March 3, 2004. Phenylpropanolamine, also a list I chemical, is presently a legitimately inspection and testing of the company’s William J. Walker, physical security systems, verification manufactured and distributed product Deputy Assistant Administrator, Office of used to provide relief of the symptoms of the company’s compliance with state Diversion Control, Drug Enforcement and local laws, and a review of the Administration. resulting from irritation of the sinus, nasal and upper respiratory tract tissues, company’s background and history. [FR Doc. 04–5475 Filed 3–10–04; 8:45 am] Therefore, pursuant to 21 U.S.C. 823 and is also used for weight control. BILLING CODE 4410–09–M and 28 CFR 0.100 and 0.104, the Deputy Phenylpropanolamine is also a Assistant Administrator, Office of precursor chemical used in the illicit Diversion Control, hereby orders that DEPARTMENT OF JUSTICE manufacture of methamphetamine and the application submitted by the above amphetamine. Methamphetamine is an firm for registration as a bulk Drug Enforcement Administration extremely potent central nervous system manufacturer of the basic classes of stimulant, and its abuse is an ongoing controlled substances listed is granted. Direct Wholesale Denial of Application public health concern in the United States. Dated: March 3, 2004. On February 25, 2003, the Deputy The Acting Deputy Administrator’s William J. Walker, Assistant Administrator, Office of review of the investigative file reveals Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement that DEA received an application dated Diversion Control, Drug Enforcement Administration (DEA), issued an Order July 27, 2001, from Direct Wholesale Administration. to Show Cause to Direct Wholesale located in Jacksonville, Florida. The [FR Doc. 04–5470 Filed 3–10–04; 8:45 am] proposing to deny its application application was submitted on behalf of BILLING CODE 4410–09–M executed on July 27, 2001, for DEA Direct Wholesale by its owner, Ronald Certificate of Registration as a Dean Petts (Mr. Petts). Direct Wholesale distributor of list I chemicals. The Order sought DEA registration as a distributor DEPARTMENT OF JUSTICE to Show Cause alleged that granting the of the list I chemicals ephedrine, application of Direct Wholesale would Drug Enforcement Administration pseudoephedrine, and be inconsistent with the public interest phenylpropanolamine. There is no Manufacturer of Controlled as that term is used in 21 U.S.C. 823(h) evidence in the investigative file that Substances; Notice of Registration and 824(a). The Order to Show Cause Direct Wholesale has sought to modify also notified Direct Wholesale that its pending application in any respect. By Notice dated September 2, 2003, should no request for a hearing be filed Following receipt of the above and published in the Federal Register within 30 days, its hearing right would application, on December 5, 2001, DEA on October 24, 2003, (68 FR 61013), be deemed waived. diversion investigators conducted an Chemic Laboratories, Inc., 480 Neponset According to the DEA investigative on-site pre-registration inspection at Street, Building 7C, Canton, file, the Order to Show Cause was sent Direct Wholesale’s proposed registered Massachusetts 02021, made application by certified mail to Direct Wholesale at location. Upon arrival, DEA by renewal to the Drug Enforcement its proposed registered location in investigators furnished and reviewed Administration for registration as a bulk Jacksonville, Florida and was received with Mr. Petts procedures for warning manufacturer of Cocaine (9041), a basic on March 7, 2003. DEA has not received notices as they relate to various listed class of Schedule II controlled a request for hearing or any other reply chemicals and procedures employed in substance. from Direct Wholesale or anyone the illicit manufacture of The firm plans to manufacture small purporting to represent the company in methamphetamine. DEA investigators quantities of cocaine derivative for this matter. also reviewed suspicious orders and distribution to a customer. Therefore, the Acting Deputy recordkeeping procedures with Mr. No comments or objections have been Administrator of DEA, finding that (1) Petts. In addition, Mr. Petts was received. DEA has considered the thirty days having passed since the furnished with a copy of the DEA factors in Title 21, United States Code, delivery of the Order to Show Cause to Chemical Handler’s Manual as well as section 823(a) and determined that the the applicant’s last known address, and relevant portions of the registration of Chemic Laboratories, Inc., (2) no request for hearing having been Methamphetamine Control Act. to manufacture the listed controlled received, concludes that Direct DEA’s investigation revealed that substance is consistent with the public Wholesale has waived its hearing right. Direct Wholesale is a sole interest at this time. DEA has See Aqui Enterprises, 67 FR 12576 proprietorship, owned and operated by investigated Chemic Laboratories, Inc., (2002). After considering relevant Mr. Petts. The firm is currently operated to ensure that the company’s material from the investigative file in out of Mr. Petts’ residence and has been registration is consistent with the public this matter, the Acting Deputy in operation since March or April of interest. This investigation has included Administrator now enters her final 2001. Mr. Petts informed investigators inspection and testing of the company’s order without a hearing pursuant to 21 that he sells cigars, lighters, and general physical security systems, verification CFR 1309.53(c) and (d) and 1316.67 merchandise. When asked by of the company’s compliance with state (2003). The Acting Deputy investigators why he was applying for and local laws, and a review of the Administrator finds as follows: registration to handle listed chemical company’s background and history. List I chemicals are those that may be products, Mr. Petts stated that many of Therefore, pursuant to 21 U.S.C. 823 used in the manufacture of a controlled his customers were expressing interest and 28 CFR 0.100 and 0.104, the Deputy substance in violation of the Controlled in buying these products from him. Assistant Administrator, Office of Substances Act. 21 U.S.C. 802(34); 21 DEA’s investigation further revealed Division Control, hereby orders that the CFR 1310.02(a). Pseudoephedrine and that aside from Mr. Petts, there are no
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other employees of Direct Wholesale. pursuant to subsection (f) of section 823, have sold listed chemical products to Prior to opening his business, Mr. Petts these factors are to be considered in the individuals engaged in the illicit sold food and clothing items, and he disjunctive; the Acting Deputy manufacture of methamphetamine); also operated a courier service. Mr. Petts Administrator may rely on any one or Xtreme Enterprises, Inc., supra. informed DEA investigators that he has combination of factors, and may give Factor five is also relevant to Direct no prior experience with over-the- each factor the weight she deems Wholesale’s proposal to distribute to counter drug products, however, he appropriate in determining whether a potential customers that are apparently estimated that the sale of list I chemical registration should be revoked or an purchasing list I chemical products from products would account for application for registration denied. See, other suppliers. The Acting Deputy approximately five percent of his total e.g. Energy Outlet, 64 FR 14269 (1999). Administrator also finds curious the sales. Mr. Petts further disclosed that he See also Henry J. Schwartz, Jr., M.D., 54 specific requests for listed chemical plans to sell cold and sinus products to FR 16422 (1989). products by Direct Wholesale’s convenience stores. The Acting Deputy Administrator customers. DEA has previously found Mr. Petts was also asked by finds factors two, four and five relevant similar conduct by potential customers investigators to submit preliminary to Direct Wholesale’s pending relevant under factor five. See Shop It information regarding customers and registration application. For Profit, 69 FR 1311, 1313 (2004). suppliers of goods to Direct Wholesale. With regard to factor two, compliance As noted above, there is no evidence Mr. Petts supplied investigators the with applicable Federal, State, and local in the investigative file that Direct names of four listed chemical suppliers, law, the Acting Deputy Administrator Wholesale ever sought to modify its as well as a list of thirty-four retail notes that Florida state and county law pending application with regard to businesses. The customer list was requires zoning approval for the listed chemical products it seeks to comprised primarily of convenience operation of a particular business. Mr. distribute. Among the listed chemical stores. The customer list submitted by Petts informed DEA investigators that products that the firm seeks to distribute Mr. Petts was later compared to a Direct Wholesale was not zoned for is phenylpropanolamine. In light of this customer list submitted by NTS, a business. The failure to obtain a proper development, the Acting Deputy separate firm that sought DEA zoning permit for business purposes has Administrator also finds factor five registration to distribute listed chemical. been cited under factor two as a basis relevant to Direct Wholesale’s request to The comparison showed that at least for the denial of an application for DEA distribute phenylpropanolamine, and thirteen of NTS’ customers were also registration to distribute list I chemicals. the apparent lack of safety associated listed as customers for Direct Wholesale. See Daniel E. Epps, Jr., 67 FR 9987 with the use of that product. DEA has A DEA inspection of a customer list for (2002). previously determined that an a second retailer revealed at least nine With respect to factor four, the applicant’s request to distribute entities that were also listed as applicant’s past experience in the phenylpropanolamine constitutes a customers of Direct Wholesale. distribution of chemicals, the Acting ground under factor five for denial of an DEA’s investigation further revealed Deputy Administrator finds this factor application for registration. Shani that Direct Wholesale possesses a relevant to Mr. Petts’ lack of experience Distributors, 68 FR 62324 (2003). Based Florida occupational license for Mr. in the handling of list I chemical on the foregoing, the Acting Deputy Petts’ residence, and the firm is also products. In prior DEA decisions, the Administrator concludes that granting registered with the Florida Department lack of experience in the handling list the pending application of Direct of Revenue to collect sales tax. I chemicals was a factor in a Wholesale would be inconsistent with However, according to Mr. Petts, his determination to deny a pending the public interest. home is not zoned for business. application for DEA registration. See, Accordingly, the Acting Deputy Pursuant to 21 U.S.C. 823(h), the Matthew D. Graham, 67 FR 10229 Administrator of the Drug Enforcement Acting Deputy Administrator may deny (2002); Xtreme Enterprises, Inc., 67 FR Administration, pursuant to the an application for Certificate of 76195 (2002). Therefore, this factor authority vested in her by 21 U.S.C. 823 Registration if she determines that similarly weighs against the granting of and 28 CFR 0.100(b) and 0.104, hereby granting the registration would be Direct Wholesale’s pending application. orders that the pending application for inconsistent with the public interest as With respect to factor five, other DEA Certificate of Registration, determined under that section. Section factors relevant to and consistent with previously submitted by Direct the public safety, the Acting Deputy 823(h) requires the following factors be Wholesale be, and it hereby is, denied. Administrator finds this factor relevant considered in determining the public This order is effective April 12, 2004. to Direct Wholesale’s proposal to interest: Dated: February 20, 2004. (1) Maintenance of effective controls distribute listed chemical products Michele M. Leonhart, against diversion of listed chemicals primarily to convenience stores. While into other than legitimate channels; there are no specific prohibitions under Acting Deputy Administrator. (2) Compliance with applicable the Controlled Substance Act regarding [FR Doc. 04–5478 Filed 3–10–04; 8:45 am] Federal, State, and local law; the sale of listed chemical products to BILLING CODE 4410–09–M (3) Any prior conviction record under these entities, DEA has nevertheless Federal or State laws relating to found that business establishments such controlled substances or to chemicals as gas stations and convenience stores DEPARTMENT OF JUSTICE constitute sources for the diversion of controlled under Federal or State law; Drug Enforcement Administration (4) Any past experience in the listed chemical products. See, e.g., manufacture and distribution of Sinbad Distributing, 67 FR 10232, 10233 Rory Patrick Doyle, M.D.; Revocation chemicals; and (2002); K.V.M. Enterprises, 67 FR 70968 of Registration (5) Such other factors as are relevant (2002) (denial of application based in to and consistent with the public health part upon information developed by On July 31, 2002, the then-Deputy and safety. DEA that the applicant proposed to sell Administrator of the Drug Enforcement As with the public interest analysis listed chemicals to gas stations, and the Administration (DEA) issued a Notice of for practitioners and pharmacies fact that these establishments in turn Immediate Suspension of Registration
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and Order to Show Cause to Rory engaged in sexual misconduct with a a child under the age of sixteen years in Patrick Doyle, M.D. (Dr. Doyle) of St. patient. Accordingly, the Department of violation of section 800.04(1), Florida Petersburg, Florida. Dr. Doyle was Health immediately suspended Dr. Statutes. These matters were notified of an opportunity to show cause Doyle’s state medical license, effective corroborated by subsequent interviews as to why DEA should not revoke his May 13, 2002. by the Department of Health with the DEA Certificate of Registration, 2. On May 22, 2002, DEA alleged victim. In addition, Dr. Doyle BD0504200, as a practitioner, and deny investigators visited Dr. Doyle’s failed to appear for his August 14, 2001 any pending applications for renewal of registered location at in St. Petersburg, criminal trial in the matter. such registration pursuant to 21 U.S.C. Florida, to request that he voluntarily The investigative file contains no 823(f) and 824(a) for reason that his surrender his DEA registration. Neither evidence that the Department of Health continued registration would be the receptionist nor Dr. Doyle’s former order suspending Dr. Doyle’s medical inconsistent with the public interest. medical colleague could identify his license has been lifted, nor is there The order further notified Dr. Doyle that whereabouts. evidence before the Acting Deputy his DEA registration was immediately According to the investigative file, the Administrator that Dr. Doyle’s medical suspended as an imminent danger to the Notice of Suspension, Order to Show license has been reinstated. Therefore, public health and safety pursuant to 21 Cause was believed to have been left at the Acting Deputy Administrator finds U.S.C. 824(d). Dr. Doyle’s registered address on August that Dr. Doyle is not currently The Order to Show Cause and Notice 6, 2002, but because there was no authorized to practice medicine in the of Immediate Suspension alleged in written record of such, the order was State of Florida, and as a result, it is relevant part, the following: redelivered to Dr. Doyle’s registered reasonable to infer that he is also 1. On May 13, 2002, the State of address on January 21, 2003. More than without authorization to handle Florida, Department of Health thirty days have passed since the Notice controlled substances in that state. (Department of Health) issued an Order of Suspension, Order to Show Cause DEA does not have statutory authority of Emergency Suspension of Dr. Doyle’s was served upon Dr. Doyle. DEA has not under the Controlled Substances Act to State medical license. The order was received a request for hearing or any issue or maintain a registration if the based on the following: other reply from Dr. Doyle or anyone applicant or registrant is without state a. On July 20, 2000, the St. Petersburg purporting to represent him in this authority to handle controlled Police Department arrested Dr. Doyle for matter. substances in the state in which he committing lewd and lascivious acts on Therefore, the Acting Deputy conducts business. See 21 U.S.C. two minor females in 1994, 1995 and Administrator of DEA, finding that (1) 802(21), 823(f) and 824(a)(3). This 2000. On July 25, 2000, Dr. Doyle was thirty days having passed since the prerequisite has been consistently released from custody after posting delivery of the Notice of Suspension, upheld. See James F. Graves, M.D., 67 $100,000 bail. Order to Show Cause to Dr. Doyle, and FR 70968 (2002); Dominick A. Ricci, b. On August 11, 2000, the Assistant (2) no request for hearing having been M.D., 58 FR 51104 (1993); Bobby Watts, State Attorney in Florida filed an received, concludes that Dr. Doyle is M.D., 53 FR 11919 (1988). The agency Information against Dr. Doyle in the deemed to have waived his hearing has also maintained this standard in Circuit Court of the Sixth Judicial right. See David W. Linder, 67 FR 12579 matters involving the immediate Circuit for Pinellas County, Florida. In (2002). After considering material from suspension of a DEA Certificate of the Information, Dr. Doyle was charged the investigative file in this matter, the Registration under 21 U.S.C. 824(d). with one count of first degree felony, Acting Deputy Administrator now Chemical Dependence Associates of lewd or lascivious molestation of a child enters her final order without a hearing Houston, 58 FR 37505 (July 12, 1993). less than twelve years of age, and two pursuant to 21 CFR 1301.43(d) and (e) Here, it is clear that Dr. Doyle’s counts of second degree felony, and 1301.46. medical license is currently suspended handling and fondling of a child under The Acting Deputy Administrator and therefore, he is not currently the age of sixteen years of age. finds that Dr. Doyle is currently licensed to handle controlled substances c. Dr. Doyle’s trial was scheduled for registered with DEA as a practitioner in Florida, the State where he maintains August 14, 2001, in the Circuit Court of under DEA Registration, BD0504200, in a DEA controlled substance registration. the Sixth Judicial Circuit. Dr. Doyle Schedules II through V. That Therefore, Dr. Doyle is not entitled to a failed to appear for the trial. registration expires on June 30, 2004. A DEA registration in that State. Because d. On November 6, 2001, the court review of the investigative file reveals Dr. Doyle is not entitled to a DEA issued a Writ of Capias for Dr. Doyle’s that on May 13, 2002, the Department of registration in Florida due to his lack of arrest. Federal and state efforts to arrest Health issued an Order of Emergency State authorization to handle controlled him have been unsuccessful. Suspension of License (Order of substances, the acting Deputy e. The Department of Health Suspension) summarily suspending Dr. Administrator concludes that it is independently reviewed the allegations Doyle’s medical license in that state. In unnecessary to address whether his set forth in the Information. On May 6, its Order of Suspension, the Department registration should be revoked based 2002, two (2) Department of Health of Health found in relevant part that in upon the other grounds asserted in the attorney’s interviewed CP, a former 1994, 1995, and in 2000, Dr. Doyle Notice of Suspension, Order to Show patient, who verified the pertinent committed improper acts with two Cause. See Fereida Walker-Graham, allegations set forth in the Information. minor females. M.D., 68 FR 24761 (2003); Nathaniel- CP further volunteered that Dr. Doyle As recited in the Notice of Aikens-Afful, M.D., 62 FR 16871 (1997); molested her on at least four (4) Suspension, Order to Show Cause, Dr. Sam F. Moore, D.V.M., 58 FR 14428 occasions between 1994 and 1995. CP Doyle’s conduct resulted in his being (1993). was between the ages of 13 and 14 at the charged with one count of first degree Accordingly, the Acting Deputy time Dr. Doyle committed these acts. In felony, lewd and lascivious molestation Administrator of the Drug Enforcement 1994 and 1995, Dr. Doyle examined CP of a child less than twelve years of age Administration, pursuant to the and issued prescriptions to her. in violation section 800.04(5), Florida authority vested in her by 21 U.S.C. 823 f. The Department of Health found Statutes, and two counts of second and 824 and 28 CFR 0.100(b) and 0.104, that through Dr. Doyle’s activities, he degree felony, handling and fondling of hereby orders that DEA Certificate of
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Registration, BD0504200, issued to Rory (2002); David W. Linder, 67 FR 12579 authority vested in her by 21 U.S.C. 823 Patrick Doyle, M.D. be, and it hereby is, (2002). After considering material from and 824 and 28 CFR 0.100(b) and 0.104, revoked. The Acting Deputy the investigative file, the Acting Deputy hereby orders that DEA Certificate of Administrator further orders that any Administrator now enters her final Registration AF60771752, issued to John pending applications for renewal or order without a hearing pursuant to 21 A. Frenz, M.D., be, and it hereby is, modification of such registration be, and CFR 1301.43(d) and (e) and 1301.46. revoked. The Acting Deputy they hereby are, denied. This order is The Acting Deputy Administrator Administrator further orders that any effective April 12, 2004. finds that Dr. Frenz possesses DEA pending applications for renewal of Certificate of Registration AF60771752, Dated: February 20, 2004. such registration be, and they hereby which expired on September 30, 2002. Michele M. Leonhart, are, denied. This order is effective April The Acting Deputy Administrator Acting Deputy Administrator. further finds that the Mississippi State 12, 2004. [FR Doc. 04–5483 Filed 3–10–04; 8:45 am] Board of Medical Licensure (the Board) Dated: February 20, 2004. BILLING CODE 4410–09–M finds a Summons against Dr. Frenz Michele M. Leonhard, alleging inter alia, that he was guilty of Acting Deputy Administrator. dishonorable or unethical conduct DEPARTMENT OF JUSTICE [FR Doc. 04–5482 Filed 3–10–04; 8:45 am] likely to deceive, defraud or harm the BILLING CODE 4410–09–M Drug Enforcement Administration public and that he had voluntarily surrendered his hospital staff privileges while an investigation or disciplinary John A. Frenz, M.D.; Revocation of DEPARTMENT OF JUSTICE Registration proceeding was being conducted against him. These counts arose from Drug Enforcement Administration On June 4, 2003, the Deputy Assistant complaints filed by two of Dr. Frenz’s Administrator, Office of Diversion patients alleging he engaged in sexual Control, Drug Enforcement Manufacturer of Controlled misconduct with them in his office and Substances; Notice of Registration Administration (DEA), issued an Order at the Rankin Medical Center of to Show Cause to John A. Frenz, M.D. Brandon, Mississippi. By Notice dated October 7, 2003, and (Dr. Frenz) of Brandon, Mississippi, On February 13, 2002, Dr. Frenz published in the Federal Register on notifying him of an opportunity to show waived his rights to a due process cause as to why DEA should not revoke hearing and voluntarily and October 29, 2003, (68 FR 61699), his Certificate of Registration No. unconditionally executed a Voluntary Gateway Specialty Chemical, Co., 4170 AF6071752 under 21 U.S.C. 824(a) and Surrender of his Mississippi State Industrial Drive, St. Peters, Missouri deny any pending applications for Medical License No. 10906, to the 63376, made application by renewal to renewal or modification of that Board. This Voluntary Surrender was the Drug Enforcement Administration registration. As a basis for revocation, accepted and approved by the Board on for registration as a bulk manufacturer the Order to Show Cause alleged Dr. February 21, 2002. of Phenylacetone (8501), a basic class of Frenz voluntarily surrendered his The investigative file contains no controlled substance listed in Schedule medical license to the Mississippi State evidence that the Voluntary Surrender II. Board of Medical Licensure and is not of Dr. Frenz’s medical license was The firm plans to manufacture the currently authorized to practice stayed or that his license has been controlled substance for its customers. medicine or handle controlled reinstated. Therefore, the Acting Deputy substances in Mississippi, his state of Administrator finds that Dr. Frenz is not No comments or objections have been registration and practice. The order also currently authorized to practice received. DEA has considered the notified Dr. Frenz that should no medicine in the State of Mississippi. As factors in Title 21, United States Code, request for a hearing be filed within 30 a result, it is reasonable to infer he is section 823(a) and determined that the days, his hearing right would be deemed also without authorization to handle registration of Gateway Specialty waived. controlled substances in that state. Chemical Co. to manufacture the listed The Order to Show Cause was sent by DEA does not have statutory authority controlled substance is consistent with certified mail to Dr. Frenz at his address under the Controlled Substances Act to the public interest at this time. DEA has of record at 346 Crossgates Boulevard, issue or maintain a registration if the investigated Gateway Specialty Brandon, Mississippi 39047. According applicant or registrant is without state Chemical Co. to ensure that the to the return receipt, on or around June authority to handle controlled company’s registration is consistent 17, 2003, the Order was accepted on Dr. substances in the state in which he with the public interest. This Frenz’s behalf. The return receipt also conducts business. See 21 U.S.C. investigation has included inspection indicated that Dr. Frenz’s new address 802(21), 823(f) and 824(a)(3). This and testing of the company’s physical was 600 Bay Park Drive, Brandon, prerequisite has been consistently security systems, verification of the Mississippi 39047. DEA has not upheld. See Muttaiya Darmarajeh, M.D., company’s compliance with state and received a request for a hearing or any 66 FR 52936 (2002); Dominick A. Ricci, local laws, and a review of the other reply from Dr. Frenz or anyone M.D., 58 FR 51104 (1993); Bobby Watts, company’s background and history. purporting to represent him in this M.D., 53 FR 11919 (1988). matter. Here, it is clear Dr. Frenz surrendered Therefore, pursuant to 21 U.S.C. 823 Therefore, the Acting Deputy his medical license and is not licensed and 28 C.F.R. 0.100 and 0.104, the Administrator, finding that (1) 30 days to handle controlled substances in Deputy Assistant Administrator, Office have passed since the receipt of the Mississippi, where he is registered with of Diversion Control, hereby orders that Order to Show Cause, and (2) no request DEA. Therefore, he is not entitled to a the application submitted by the above for a hearing having been received, DEA registration in that state. firm for registration as a bulk concludes that Dr. Frenz is deemed to Accordingly, the Acting Deputy manufacturer of the basic class of have waived his hearing right. See Administrator of the Drug Enforcement controlled substance listed is granted. Samuel S. Jackson, D.D.S., 67 FR 65145 Administration, pursuant to the
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Dated: March 3, 2004. hearing, together with a statement which had contracted with him to William J. Walker, regarding his position on the matters of prescribe narcotics and other controlled Deputy Assistant Administrator, Office of fact and law involved, or (3) if he failed substances to requesters after reviewing Diversion Control, Drug Enforcement to file a request for a hearing within 30 on-line questionnaires filled out by the Administration. days, that his hearing right would be customers and a brief telephone call. [FR Doc. 04–5474 Filed 3–10–04; 8:45 am] deemed waived. The prescriptions were then filled by BILLING CODE 4410–09–M The Order to Show Cause was sent by Genrich Pharmacy of Phoenix, Arizona certified mail to Dr. Gibbs’ registered and sent to the customer’s address by location at 2078 E. Southern Avenue, mail or delivery service. DEPARTMENT OF JUSTICE Suite D101, Tempe, Arizona 85282– A joint investigation conducted by 7521. According to the return receipt, DEA and the Board showed that in May Drug Enforcement Administration the Order to Show Cause was accepted or June 2000, Dr. Gibbs had been on Dr. Gibbs’ behalf on or around approached by two men about Marvin L. Gibbs, Jr., M.D.; Revocation August 8, 2003. On September 4, 2003, prescribing medicine over the Internet. of Registration Dr. Gibbs filed a response with They were owners of an auto parts On July 28, 2003, the Deputy Administrative Law Judge Gail A. business in Mesa, Arizona. At the time, Assistant Administrator, Office of Randall which was ambiguous as to Dr. Gibbs had recently lost his privileges Diversion Control, Drug Enforcement which option he was electing. After at Mesa Lutheran Hospital, the facility Administration (DEA), issued an Order Judge Randall afforded him an where ninety percent of his patient to Show Cause to Marvin L. Gibbs, Jr., opportunity to file a clear election, by volume was generated. Another M.D. (Dr. Gibbs) of Tempe, Arizona, his letter dated October 9, 2003, Dr. physician, who recommended that Dr. notifying him of an opportunity to show Gibbs selected option two, waiving his Gibbs become involved in the Internet right to a hearing and asking that his prescribing business, knew he needed cause as to why DEA should not revoke October 1, 2003, written submission be help in generating income at the time. his Certificate of Registration No. considered. Dr. Gibbs agreed to participate in AG7790644 under 21 U.S.C. 824(a)(4) On October 30, 2003, consistent with Myprivatedoc’s scheme and would be and deny any pending applications for that election, Judge Randall terminated paid $20 for each consultation. Visitors renewal or modification of his the case and returned the file to the to the Web site would initially fill out practitioner registration. As a basis for Government’s counsel for further a questionnaire regarding their medical revocation, the Order to Show Cause administrative processing. On history and complaint. Dr. Gibbs then alleged Dr. Gibbs’ continued registration November 26, 2003, the Chief Counsel reviewed the forms over the Internet was inconsistent with the public forwarded the file to the Acting Deputy and received a schedule of when interest. The Order alleged that from Administrator for final agency action in customers would be calling him for a October 2000 through December 2001, accordance with 21 CFR 1301.43(e) and consultation. Initially he evaluated 10 to Dr. Gibbs was affiliated with companies 1301.46. 15 individuals per day, spending selling controlled substances and other Other than as set forth above, DEA has approximately five to ten minutes with drugs over the internet. During that not received a request for a hearing from each customer. By December 2000, his period he issued thousands of Dr. Gibbs or anyone representing him in consultations had increased to controlled substance prescriptions, this matter. Therefore, the Acting approximately 30 per day. including refills, which were not issued Deputy Administrator, finding that Dr. Dr. Gibbs made no effort to validate in the normal course of professional Gibbs has waived his hearing right and information provided to him via the practice, in violation of 21 CFR 1306.04 requested that the agency make its Internet and while Myprivatedoc and 21 U.S.C. 841(a). decision based on the investigative file requested that customers verify their The Order alleged that without and his written submission, now enters identities with picture identifications, conducting physical examinations, Dr. her final order without a hearing Dr. Gibbs made no independent Gibbs issued prescriptions to pursuant to 21 CFR 1301.43(c) and (e) verification of the caller’s identity. Dr. individuals requesting controlled and 1301.46. Gibbs, who had not taken any courses substance prescriptions over internet The Acting Deputy Administrator or continuing medical education in web sites with which he had no prior finds that Dr. Gibbs is registered with chronic pain management or doctor-patient relationship. Dr. Gibbs DEA as a practitioner under Certificate identification of drug seeking behavior, would review questionnaires completed AG7790644 for Schedule II through V did not perform physical examinations on-line by the customer and then have controlled substances, with a registered on customers, request or obtain medical a brief, pre-scheduled telephone location of Alliance Healthcare Services, records from their treating physicians or conversation with the requestor. He did 2078 E. Southern Avenue, Tempe, maintain any medical records on the not consult with the customer’s primary Arizona. He was previously registered individuals he prescribed to over the physician and failed to maintain any with DEA under Certificate BG729030, Internet. The majority of prescriptions patient records of his own. The bulk of which was retired on September 30, prescribed were for thirty day supplies the controlled substance prescriptions 1991. He is currently licensed with the of controlled substance medications, issued by Dr. Gibbs in this manner were Arizona Medical Board of Medical with a maximum of two refills. Dr. alleged to have been for hydrocodone Examiners (Board) under License Gibbs stated he did not believe he was 7.5 mg., a Schedule III controlled Number 13736, which was issued on establishing a doctor-patient substance. It was further alleged Dr. November 26, 1982, and expires on relationship with the individuals Gibbs filed a prescription for Vicodin in December 21, 2004. He is currently requesting prescriptions. the above manner which was requested engaged in a solo medical practice and Around February 2001, after receiving by a DEA investigator using a fictitious his only specialty is obstetrics and approximately $52,000 in consultation name and medical complaint. gynecology. fees, Dr. Gibbs terminated his The order notified Dr. Gibbs that (1) In February 2001, Dr. Gibbs was relationship with Myprivatedoc. In he could file a written request for a identified as an integral participant in April 2001, he associated with hearing, (2) file a written waiver of Myprivatedoc, an Internet business Medsworldwide, another internet
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company located in Tampa, Florida. and suffered fatal head injuries. He had Board found the standard of care for the Using essentially the same evaluation talked to his mother about an hour management of prescribing medications process as with Myprivatedoc, Dr. Gibbs before the accident, when he told her he requires there be a doctor-patient prescribed controlled substances to was on his way home. The coroner’s relationship, established on a face-to- customers requesting them over preliminary investigation indicated the face basis, before prescribing and that Medsworldwide’s web site. He was now victim most likely fell asleep or became Dr. Gibb’s conduct was unreasonable, paid $70.00 per consult and received unconscious at the wheel after taking given that standard of care. The Board approximately $36,000 before his alprazolam (Xanax), which was found Dr. Gibbs’ conduct posed the relationship with that company was obtained through an Internet pharmacy. potential harm of patients becoming severed. A prescription bottle for Xanax, issued addicted to the medications and harm to In August 2001, Dr. Gibbs started his by Genrich Pharmacy in Phoenix, the community through the diversion of own web site titled Arizona, was found in the victim’s car those medications. Expressmedcare.com. He associated and documents reflected he received the The Board concluded Dr. Gibbs’ with a Florida pharmacy which issued medication through a prescription actions constituted unprofessional medications prescribed by Dr. Gibbs and authorized by Dr. Gibbs. conduct as defined in A.R.S. § 32–1401 began charging $100.00 to $125.00 per On October 2, 2001, the Aikin County by failing or refusing to maintain consult. Up until December 21, 2001, Coroner’s Office contacted Dr. Gibbs by adequate records on a patient, engaging when DEA confiscated his computers phone in his Arizona office. He advised in conduct or practice that is or might and Dr. Gibbs stopped internet investigators that the victim was not a be harmful or dangerous to the health of prescribing, he had consulted with patient of his because he was an OB/ the patient or the public and by approximately 900 customers through GYN physician. DEA investigators prescribing prescription medication Expressmedcare’s web site. As with reviewing Dr. Gibbs’ Physician Profile without a physical examination to Myprivatedoc and Medsworldwide, Dr. from Genrich Pharmacy then found he persons whom he did not have a Gibbs prescribed controlled substances had prescribed the victim 1 mg previously established a doctor-patient to Expressmedcare requestors after aplrazolam (Xanax), 30 count, on March relationship. reviewing their questionnaires and a 3, 2001. Two 30 count refills were The Board issued Dr. Gibbs a Decree brief telephone conversation, but authorized by Dr. Gibbs and filled by of Censure, ordered him to pay a civil without physical examinations or Genrich Pharmacy on April 19, 2001 penalty of $10,000 within one year and entries in medical records. and June 5, 2001. Based on the placed him on ten years probation, Genrich Pharmacy records showed circumstances of the accident and Dr. which included the following that from October 25, 2000, to August Gibbs having prescribing Xanax, the provisions: He was to prescribe 28, 2001, Dr. Gibbs prescribed 8,040 Coroner’s Office believed it was very Schedule II and III controlled controlled substance prescriptions, likely Dr. Gibbs contributed to the substances only for individuals who including refills, to approximately 2620 accident and the victim’s subsequent were established patients of his internet clients. This amounted to death. obstetrics and gynecology practice; approximately 639,430 dosage units of A review of seized computer files attend CME classes; pay for costs controlled substances, including indicated that Dr. Gibbs also prescribed associated with monitoring his 560,650 dosage units of hydrocodone, controlled substances to four health care probation; and submit quarterly 55,250 dosage units of benzodiazepines, professionals who were also obtaining declarations under penalty of perjury 6,960 dosage units of controlled controlled substances from other that he has complied with all conditions substances with the ingredient codeine physicians associated with different of probation. and 16,570 dosage units of various other internet websites. In his written submission to the Order controlled substances. Additionally, Dr. Updated pharmacy records, including to Show Cause, Dr. Gibbs does not Gibbs prescribed 56,460 dosage units of those obtained from United Prescription contest the allegations in the Order to carisoprodol (Soma), which is not a Services in Tampa, Florida, indicated Show Cause and concedes having controlled substance, but is frequently that from October 2000 until December prescribed controlled substances over abused together with hydrocodone 2001, Dr. Gibbs was responsible for the internet without taking patient’s products. issuing a total estimated 14,500 histories, conducting physical In July 2001, a DEA investigator controlled substance prescriptions and examinations or documenting entered a fictitious name on the approximately 1200 carisoprodol information in medical records. Medsworldwide web site seeking prescriptions, including refills, over the In defense, Dr. Gibbs notes he has Vicodin ES, count 60, after purportedly internet. He prescribed in excess of been in practice for 23 years and never suffering a back injury from an 1,018,000 dosage units of controlled inappropriately prescribed controlled automobile accident. He was directed to substances and 90,000 dosage units of substances in his obstetrics and phone Dr. Gibbs at a specific time on carisoprodol during that period. It is gynecology practice. He states he was July 31, 2001. After minimal estimated that over a fourteen month unaware of any prohibitions against questioning as to when the accident period Dr. Gibbs received in excess of internet prescribing and became occurred, if the caller was on any $180,000 for prescribing controlled involved with ‘‘2 local businessmen’’ medications and what medication he substances through the Myprivatedoc, after they were referred to him by an wanted, Dr. Gibbs prescribed 60 Vicodin Medsworldwide and Expressmedcare anesthesiologist who Dr. Gibbs had tablets with two refills. He did not websites. known for 21 years. He states the ‘‘2 question the agent about allergic Based on the DEA and Arizona businessman [SIC] told me they had reactions, his overall physical condition Medical Board’s investigation, the Board retained legal counsel, and not knowing or any prior surgeries. initiated case No. MD–01–0861 against there were statutes governing the On September 15, 2001, at Dr. Gibbs. On May 14, 2003, after a practice of medicine I did not do my approximately 8 p.m., the 30 year-old formal interview with Dr. Gibbs in own inquiries.’’ Based on reading a text son of the Aikin County, South which he was represented by counsel, titled ‘‘Practical Management of Pain,’’ Carolina, coroner was killed in a single the Board issued its Findings of Fact, Dr. Gibbs states he took a ‘‘naive car accident when he ran off the road Conclusions of Law and Order. The approach’’ to internet consulting and
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did not consider the possibility of would do nothing to jeopardize his With regard to the second public diversion or abuse in treating chronic medical license or warrant future interest factor, respondent’s experience pain patients. He states he believed revocation of his certificate. in dispensing controlled substances, the people suffering chronic pain feared The Acting Deputy Administrator Acting Deputy Administrator finds Dr. losing their jobs if they took time off may revoke a DEA Certificate of Gibbs is an experienced obstetrician/ from work to see physicians and that the Registration and deny any pending gynecologist who has prescribed internet process afforded them an applications for such certificate if she controlled substances for many years opportunity to alleviate their pain and determines the respondent’s registration and there is no evidence that he violated suffering. would be inconsistent with the public state or federal regulations until October Based on taking a medical ethics interest, as determined pursuant to 21 2000. However, at that time, when course ordered by the Board and a U.S.C. 823(a)(4) and 823(f). Section financially pressed as a result of losing Physician Prescribing Course on his 823(f) requires consideration of the accreditation at the hospital where the own volition, Dr. Gibbs states he now following factors: bulk of his patient volume was being knows why it was wrong ‘‘to address (1) The recommendation of the generated, he was quite willing to these issues over the internet.’’ He appropriate state licensing board or engage in internet prescribing with an stresses the state board did not revoke professional disciplinary authority. organization run by two men who his medical license after conducting a (2) The applicant’s experience in owned a local auto parts business. Dr. 21⁄2 hour interview and having him dispensing, or conducting research with Gibbs, who had no experience or undergo a comprehensive proficiency respect to controlled substances. continuing medical education in (3) The applicant’s conviction record evaluation in obstetrics and gynecology, chronic pain management or under Federal or State laws relating to general medicine, clinical pharmacology identification of drug seeking behavior, the manufacture, distribution, or and medical ethics. entered into this activity without even After taking a medical ethics course dispensing of controlled substances. (4) Compliance with applicable State, minimal research or inquiry into ordered by the Board, Dr. Gibbs states relevant professional standards, the he now knows why prescribing over the Federal, or local laws relating to controlled substances. state statutes governing unprofessional internet is the ‘‘wrong way to meet the conduct, or any apparent thought to the needs of chronic pain sufferers’’ and (5) Such other conduct which may threaten the public health or safety. threats of diversion and harm to that ‘‘Prior to taking the course, I was individuals receiving controlled unaware of scams in which doctors in As a threshold matter, it should be noted that the factors specified in substance prescriptions under these medical clinics and pharmacies circumstances. (pharmacists) set up elaborate schemes section 823(f) are to be considered in the Given the numerous red flags the to make large profits from selling and disjunctive: The Acting Deputy business proposal should have reselling the same prescription needs.’’ Administrator may properly rely on any generated and the Arizona statute Dr. Gibbs also states he did not consider one or a combination of the factors, and (A.R.S. § 32–1401(26)(e)), which the possibility that people would use give each factor the weight she deems the internet for the purpose of diversion appropriate, in determining whether a includes as ‘‘unprofessional conduct’’ and abuse of these medications and he registration should be revoked or the prescribing of medications without ‘‘can assure DEA that I am acutely denied. Henry J. Schwarz, Jr., M.D., 54 physical examination to an individual aware, and understand why laws exist FR 16422 (1989) who does not have a previously governing the practice of medicine.’’ With regard to the first public interest established doctor-patient relationship, He also cites the assessment of Dr. factor, the Arizona Medical Board has it is readily apparent that if Dr. Gibbs Russell McIntyre, Th.D, director of a not made a specific recommendation was, in fact, unaware of the constraints three day Professional Renewal Through regarding this action. It has allowed Dr. against this activity, it was because he Ethics course ordered by the Board, in Gibbs to retain his medical license and simply turned a blind eye to the dangers which Dr. McIntyre concludes Dr. Gibbs prescribe Schedule II and III controlled and the standards of the normal course now has unqualified capacity for substances to established patients in the of professional practice. In that regard, ‘‘ethical thinking and insight’’ ‘‘should regular course of his obstetrics and his lengthy experience as a physician in be thought of as remediated.’’ Dr. Gibbs gynecology practice. However, the prescribing controlled substances makes further notes his voluntary completion Board also concluded he engaged in his voluntary participation in this of a three day Physician Prescribing unprofessional conduct, issued him a scheme even more egregious. Course at the University of California, Decree of Censure, ordered him to pay In a little over a year, Dr. Gibbs San Diego School of Medicine in a civil penalty of $10,000 and placed prescribed over a million dosage units October 2003. him on ten years probation. Since state of controlled substance medications to He finally stresses the Arizona licensure is a necessary but insufficient thousands of internet requestors without Medical Board’s reputation and condition for DEA registration, the a physical examination, adequate credibility for protecting the public and Acting Deputy Administrator concludes medical history, sufficient verification assessing the worthiness of physicians that this factor is not determinative. See of identity or any documentation in in maintaining their state medical Barry H. Brooks, M.D., 66 FR 18305, patient medical records. Considering the licenses after professional misconduct 18308 (2001); Martha Hernandez, M.D., foregoing, the Acting Deputy and that he cannot prescribe Schedule 62 FR 61145, 61147–48. Further, while Administrator finds that factor two II and II controlled substances outside it is relevant that the state currently weighs against Dr. Gibbs’ continued his obstetrics and gynecology practice allows Dr. Gibbs to prescribe Schedule registration. under the terms of his ten year II and III controlled substances to With regard to the third public probation. Dr. Gibbs states that in his established patients, the Acting Deputy interest factor, Dr. Gibbs has not been speciality, were DEA to revoke his Administrator does not find that convicted of any Federal or State laws certificate, it would not be possible for dispositive of whether his continued relating to the manufacture, distribution him to care for either surgical or non- registration is in the public interest. See or dispensing of controlled substances, surgical patients and that if he were Roger Pharmacy, 61 FR 65079, 65080 which weighs in favor of continued allowed to retain his certificate, he (1996). registration.
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As to the fourth factor, compliance business. After that relationship The Order to Show Cause further with State and Federal law and terminated, Dr. Gibbs affiliated himself alleged that Dr. Graham’s continued regulations, Dr. Gibbs violated Arizona with a second Internet Web site registration was inconsistent with the law by (1) failing to conduct physical company, which increased his public interest as that term is used in 21 examinations before prescribing consultation fee from the $20 he had U.S.C. 823(f). This was based on Dr. controlled substances, (2) failing to been receiving from Myprivatedoc, to Graham’s employment by Prescibus, an maintain adequate records on these $70 per consult with Medsworldwide. internet company selling controlled patients and (3) engaging in conduct Even this increase was not sufficient, as substances and other drugs over the that is or might be harmful or dangerous Dr. Gibbs then formed his own Web site Internet. During the period Dr. Graham to the health of the patient or the public. where, until his computers were seized worked for Prescibus he issued at least See A.R.S. § 32–1401(26)(e), (q) and (ss). by DEA, he charged $100 to $125 per four or five thousand prescriptions over Dr. Gibbs also violated Federal consult. In sum, given the investigative the internet, the majority of which were regulations by prescribing controlled record, Dr. Gibbs’ assertion that his for controlled substances and not issued substances outside the usual scope of underlying motivation was to serve the in the usual course of professional his professional practice. See 21 CFR public good and relieve pain and medical practice. He was alleged to have 1306.04(a). Accordingly, the Acting suffering, rings hollow. issued controlled substance Deputy Administrator finds that factor After considering the totality of the prescriptions to individuals with whom four weighs against continued investigative record and Dr. Gibbs’ he did not have a prior doctor-patient registration. written submission, the Acting Deputy relationship, failed to conduct physical With regard to the fifth public interest Administrator concludes his continued examinations of those customers and factor, such other conduct which may registration is inconsistent with the did not create or maintain records on threaten the public health and safety, public interest, as that term is used in them. The only information usually the Acting Deputy Administrator finds 21 U.S.C. 823(f) and 824(a)(4). reviewed prior to issuing prescriptions the conduct of Dr. Gibbs discussed Accordingly, the Acting Deputy was a questionnaire completed by the under factors two and four, is also Administrator of the Drug Enforcement customer. Dr. Graham would then have applicable under factor five. The large Administration, pursuant to the a brief telephone conversation with the amounts of controlled substance authority vested in her by 21 U.S.C. 823 customer and did not consult with the medications prescribed by Dr. Gibbs to and 824 and 28 CFR 0.100(b) and 0.104, customer’s primary care physician. individuals without physical hereby orders that DEA Certificate of Undercover investigators were alleged examination or adequate consideration Registration AG7790644, issued to to have obtained controlled substances of the possibilities for diversion, abuse Marvin L. Gibbs, Jr., M.D., be, and it prescriptions from Dr. Graham under or adverse effects upon the recipients, hereby is, revoked. The Acting Deputy these circumstances on three occasions. all lead to the inevitable conclusion that Administrator further orders that any The order notified Dr. Graham that his activities presented significant risk pending applications for renewal of should no request for a hearing be filed to public health and safety. such registration be, and they hereby within 30 days, his hearing right would The Acting Deputy Administrator has are, denied. This order is effective April be deemed waived. considered the matters addressed in Dr. 12, 2004. The Order to Show Cause was sent by Gibbs’ written submission but, in Dated: February 20, 2004. certified mail to Dr. Graham at his determining the weight to be attached to address of record at 180 First Street Michele M. Leonhart, the matters of fact asserted therein, has West, No. 21, Ketchum, Idaho 83340 done so in light of the absence of cross- Acting Deputy Administrator. and to P.O. Box 83340, Ketchum, Idaho examination. See 21 CFR 1301.43(d). [FR Doc. 04–5484 Filed 3–10–04; 8:45 am] 83340–5860. According to the return While his efforts to educate himself BILLING CODE 4410–09–M receipts, the order was accepted on Dr. regarding ethical and professional Graham’s behalf on or around August 21 responsibilities and the dangers of and August 22, 2003. DEA has not internet prescribing are laudable, they DEPARTMENT OF JUSTICE received a request for hearing or any are mitigated by the fact they were Drug Enforcement Administration other reply from Dr. Graham or anyone initiated only after Dr. Gibbs became purporting to represent him in this aware of DEA and Board investigations Stephen J. Graham, M.D. Revocation of matter. into his conduct and taken in Registration Therefore, the Acting Deputy anticipation of or pursuant to state Administrator, finding that (1) 30 days disciplinary proceedings. On August 11, 2003, the Deputy have passed since the receipt of the The Acting Deputy Administrator is Assistant Administrator, Office of Order to Show Cause, and (2) no request troubled by Dr. Gibbs’ apparent Diversion Control, Drug Enforcement for a hearing having been received, continuing assertion that his underlying Administration (DEA), issued an Order concludes that Dr. Graham is deemed to intent in engaging in internet to Show Cause to Stephen J. Graham, have waived his hearing right. See prescribing was to care for patients who M.D. (Dr. Graham) of Ketchum, Idaho, Samuel S. Jackson, D.D.S., 67 FR 65145 suffered from chronic pain and were notifying him of an opportunity to show (2002); David W. Linder, 67 FR 12579 unable financially to consult with a cause as to why DEA should not revoke (2002). After considering material from physician. This smacks of self-serving his DEA Certificate of Registration the investigative file, the Acting Deputy and rationalization. To the contrary, the BG0868971 under 21 U.S.C. 824(a) and Administrator now enters her final record clearly infers that his prime deny any pending application for order without a hearing pursuant to 21 motivation, from the beginning to the renewal or modification of that CFR 1301.43(d) and (e) and 1301.46. end, was financial gain. At a time when registration. As a basis for revocation, The Acting Deputy Administrator he had just lost accreditation at the the Order to show Cause alleged that Dr. finds that Dr. Graham possesses DEA hospital where ninety percent of his Graham is not currently authorized to Certificate of Registration BG0868971. patient volume was being generated, he practice medicine or handle controlled The Acting Deputy Administrator readily agreed to associate with two substances in Idaho, his state of further finds that on or about May 27, then-strangers who owned an auto parts registration and practice. 2003, the Idaho Board of Medicine
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(Board) was scheduled to initiate a hereby is, revoked. The Acting Deputy Dated: March 3, 2004. Formal Hearing into the internet Administrator further orders that any William J. Walker, prescribing practices of Dr. Graham, pending applications for renewal of Deputy Assistant Administrator, Office of who held Idaho Medical License such registration be, and they hereby Diversion Control, Drug Enforcement Number M7224 and Idaho Controlled are, denied. This order is effective April Administration. Substances License Number CS7265. On 12, 2004. [FR Doc. 04–5471 Filed 3–10–04; 8:45 am] June 6, 2003, in lieu of proceeding with Dated: February 20, 2004. BILLING CODE 4410–09–M the Formal Hearing, the Board and Dr. Michele M. Leonhart, Graham entered into a Stipulation and Acting Deputy Administratorr. Order in which Dr. Graham agreed to DEPARTMENT OF JUSTICE surrender his Idaho medical and [FR Doc. 04–5480 Filed 3–10–04; 8:45 am] BILLING CODE 4410–09–M controlled substance licenses and to not Drug Enforcement Administration practice medicine or write prescriptions in Idaho for a minimum of five years. DEPARTMENT OF JUSTICE Manufacturer of Controlled The investigative file contains no Substances; Notice of Registration evidence that the Stipulation and Order Drug Enforcement Administration has been modified or lifted or that Dr. By Notice dated September 17, 2003, Graham’s medical license has been Manufacturer of Controlled and published in the Federal Register reinstated or returned to him. Therefore, Substances; Notice of Registration on October 7, 2003, (68 FR 57929), the Acting Deputy Administrator finds National Center for Natural Products that Dr. Graham is not currently By Notice dated October 7, 2003, and Research—NIDA MProject, University of authorized to practice medicine in the published in the Federal Register on Mississippi, 135 Coy Waller Complex, State of Idaho. As a result, coupled with October 29, 2003, (68 FR 61699), ISP surrender of his controlled substances Freetown Fine Chemicals, Inc., 238 University, Mississippi 38677, made license, it is reasonable to infer he is South Main Street, Freetown, application by renewal to the Drug also without authorization to handle Massachusetts, made application by Enforcement Administration for controlled substances in that state. renewal to the Drug Enforcement registration as a bulk manufacturer of DEA does not have statutory authority Administration for registration as a bulk the basic classes of controlled under the Controlled Substances Act to manufacturer of the basic classes of substances listed below: issue or maintain a registration if the controlled substances listed below: applicant or registrant is without state Drug Schedule authority to handle controlled Drug Schedule substances in the state in which he Marihuana (7360) ...... I 2,5-Dimethoxyamphetamine I Tetrahydrocannabinols (7370) ..... I conducts business. See 21 U.S.C. (7396). 802(21), 823(f) and 824(a)(3). This Amphetamine (1100) ...... II prerequisite has been consistently Phenylacetone (8501) ...... II The firm plans to cultivate marijuana upheld. See James F. Graves, M.D., 67 for the National Institute of Drug Abuse FR 70968 (2002); Dominick A. Ricci, The firm plans to bulk manufacture for research approved by the M.D., 58 FR 51104 (1993); Bobby Watts, the phenylacetone for manufacture of Department of Health and Human M.D. 53 FR 11919 (1998). the amphetamine. The bulk, 2,5- Services. Here, it is clear that Dr. Graham’s dimethoxyamphetamine will be used for medical license has been surrendered conversion into non-controlled No comments or objections have been and he is currently not licensed to substances. received. DEA has considered the handle controlled substances in the No comments or objections have been factors in Title 21, United States Code, State of Idaho, the state where he received. DEA has considered the section 823(a) and determined that the maintains a DEA controlled substance factors in Title 21, United States Code, registration of National Center for registration. Therefore, Dr. Graham is Section 823(a) and determined that the Natural Products Research—NIDA not entitled to a DEA registration in that registration of ISP Freetown Fine MProject to manufacture the listed state. Because Dr. Graham is not entitled Chemicals, Inc. to manufacture the controlled substance is consistent with to a DEA registration in Idaho due to his listed controlled substance is consistent the public interest at this time. DEA has lack of state authorization to handle with the public interest at this time. investigated National Center for Natural controlled substances, the Acting DEA has investigated ISP Freetown Fine Products Research—NIDA MProject to Deputy Administrator concludes it is Chemicals, Inc. to ensure that the ensure that the company’s registration is unnecessary to address whether or not company’s registration is consistent consistent with the public interest. This his DEA registration should be revoked with the public interest. This investigation has included inspection based upon the public interest grounds investigation has included inspection and testing of the company’s physical asserted in the Order to Show Cause. and testing of the company’s physical security systems, verification of the See Samuel Silas Jackson, D.D.S., 67 FR security systems, verification of the company’s compliance with state and company’s compliance with state and 65145 (2002); Nathaniel-Aikins-Afful, local laws, and a review of the M.D., 62 FR 16871 (1997); Sam F. local laws, and a review of the company’s background and history. Moore, D.V.M., 58 FR 14428 (1993). company’s background and history. Accordingly, the Acting Deputy Therefore, pursuant to 21 U.S.C. 823 Therefore, pursuant to 21 U.S.C. 823 Administrator of the Drug Enforcement and 28 CFR 0.100 and 0.104, the Deputy and 28 CFR 0.100 and 0.104, the Deputy Administration, pursuant to the Assistant Administrator, Office of Assistant Administrator, Office of authority vested in her by 21 U.S.C. 823 Diversion Control, hereby orders that Diversion Control, hereby orders that and 824 and 28 CFR 0.100(b) and 0.104, the application submitted by the above the application submitted by the above hereby orders that DEA Certificate of firm for registration as a bulk firm for registration as a bulk Registration BG086971, issued to manufacturer of the basic classes of manufacturer of the basic class of Stephen J. Graham, M.D., be, and it controlled substances listed is granted. controlled substance listed is granted.
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Dated: March 3, 2004. finds that the State of Florida Dated: February 20, 2004. William J. Walker, Department of Public Health filed an Michele M. Leonhart, Deputy Assistant Administrator, Office of Administrative Complaint with the Acting Deputy Administrator. Diversion Control, Drug Enforcement State of Florida Medical Board (the [FR Doc. 04–5481 Filed 3–10–04; 8:45 am] Administration. Board) against Dr. Phillips alleging inter [FR Doc. 04–5473 Filed 3–10–04; 8:45 am] alia, that he engaged in malpractice with BILLING CODE 4410–09–M BILLING CODE 4410–09–M three plastic surgery patients, failed to submit necessary paperwork with the DEPARTMENT OF JUSTICE insurance company of a fourth patient, DEPARTMENT OF JUSTICE filed for bankruptcy and closed his Drug Enforcement Administration office without notifying his patients or Drug Enforcement Administration the Board, and that he failed to respond Importer of Controlled Substances; James W. Phillips, M.D. Revocation of to his patients’ requests for their Notice of Registration Registration medical records. On December 18, 2002, Dr. Phillips By Notice dated November 4, 2003 On June 25, 2003, the Deputy defaulted his right to a hearing on the and published in the Federal Register Assistant Administrator, Office of Administrative Complaint and the on December 2, 2003, (68 FR 67480), Diversion Control, Drug Enforcement Board issued its Final Order sustaining Stepan Company, Natural Products Administration (DEA), issued an Order the accusations and revoking Dr. Dept., 100 W. Hunter Avenue, to Show Cause to James W. Phillips, Phillips’ license to practice medicine in Maywood, New Jersey, made M.D. (Dr. Phillips) of Jacksonville, the State of Florida, effective as of Florida, notifying him of an opportunity application by renewal to the Drug December 23, 2002. The investigative to show cause as to why DEA should Enforcement Administration (DEA) to file contains no evidence that the not revoke his DEA Certificate of be registered as an importer of Coca Board’s Final Order has been stayed or Registration BP1163396 under 21 U.S.C. Leaves (9040), a basic class of controlled that Dr. Phillips’ medical license has 824(a) and deny any pending substance listed in Schedule II. been reinstated. Therefore, the Acting applications for renewal or modification Deputy Administrator finds that Dr. The firm plans to import the coca of that registration. As a basis for Phillips is not currently authorized to leaves to manufacture bulk controlled revocation, the Order to Show Cause practice medicine in the State of substances. alleged that Dr. Phillips is not currently Florida. As a result, it is reasonable to No comments or objections have been authorized to practice medicine or handle controlled substances in Florida, infer he is also without authorization to received. DEA has considered the his state of registration and practice. handle controlled substances in that factors in Title 21, United States Code, The order also notified Dr. Phillips that state. Section 823(a) and determined that the should no request for a hearing be filed DEA does not have statutory authority registration of Stepan Company to within 30 days, his hearing right would under the Controlled Substances Act to import the listed controlled substance is be deemed waived. issue or maintain a registration if the consistent with the public interest and The Order to Show Cause was sent by applicant or registrant is without state with United States obligations under certified mail to Dr. Phillips at his authority to handle controlled international treaties, conventions, or address of record at 404 Cancun Court, substances in the state in which he protocols in effect on May 1, 1971, at Jacksonville, Florida. According to the conducts business. See 21 U.S.C. this time. DEA has investigated Stepan return receipt, on or around July 8, 802(21), 823(f) and 824(a)(3). This Company on a regular basis to ensure 2003, the Order was accepted on Dr. prerequisite has been consistently that the company’s continued Phillips’ behalf. The return receipt also upheld. See Muttaiya Darmarajeh, M.D., registration is consistent with the public indicated that Dr. Phillips’ new address 66 Fr 52936 (2001); Dominick A. Ricci, interest. This investigation included was 760 Tee Time Lane, Jacksonville, M.D., 58 FR 51104 (1993); Bobby Watts, inspection and testing of the company’s Florida. DEA has not received a request M.D., 53 FR 11919 (1988). physical security systems, verification for hearing or any other reply from Dr. Here, it is clear that Dr. Phillips’ of the company’s compliance with state Phillips or anyone purporting to medical license has been revoked and and local laws, and a review of the represent him in this matter. he is not licensed to handle controlled Therefore, the Acting Deputy company’s background and history. substances in Florida, where he is Administrator, finding that (1) 30 days Therefore, pursuant to Section 1008(a) registered with DEA. Therefore, he is have passed since the receipt of the of the Controlled Substances Import and not entitled to a DEA registration in that Order to Show Cause, and (2) no request Export Act and in accordance with Title state. for a hearing having been received, 21, Code of Federal Regulations, concludes that Dr. Phillips is deemed to Accordingly, the Acting Deputy § 1301.34, the above firm is granted have waived his hearing right. See Administrator of the Drug Enforcement registration as an importer of the basic Samuel S. Jackson, D.D.S., 67 FR 65145 Administration, pursuant to the class of controlled substance listed (2002); David W. Linder, 67 FR 12579 authority vested in her by 21 U.S.C. 823 above. (2002). After considering material from and 824 and 28 CFR 0.100(b) and 0.104, Dated: March 3, 2004. the investigative file, the Acting Deputy hereby orders that DEA Certificate of Administrator now enters her final Registration BP1163396, issued to John William J. Walker, order without a hearing pursuant to 21 W. Phillips, M.D., be, and it hereby is, Deputy Assistant Administrator, Office of CFR 1301.43(d) and (e) and 1301.46. revoked. The Acting Deputy Diversion Control, Drug Enforcement The Acting Deputy Administrator Administrator further orders that any Administration. finds that Dr. Phillips possesses DEA pending applications for renewal of [FR Doc. 04–5476 Filed 3–10–04; 8:45 am] Certificate of Registration BP1163396, such registration be, and they hereby BILLING CODE 4410–09–M which expires on March 31, 2005. The are, denied. This order is effective April Acting Deputy Administrator further 12, 2004.
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DEPARTMENT OF JUSTICE SUMMARY: Pursuant to section 10(a)(2) of Signed at Washington, DC, this 4th day of the Federal Advisory Committee Act March, 2004. Drug Enforcement Administration (FACA) (Pub. L. 92–463), as amended, Emily Stover DeRocco, and section 166(h)(4) of the Workforce Assistant Secretary, Employment and Importer of Controlled Substances; Investment Act (WIA) [29 U.S.C. Training Administration. Notice of Registration 2911(h)(4)], notice is hereby given of the [FR Doc. 04–5439 Filed 3–10–04; 8:45 am] By Notice dated April 3, 2003 and next meeting of the Native American BILLING CODE 4510–30–P published in the Federal Register on Employment and Training Council as April 15, 2003, (68 FR 18262), Tocris constituted under WIA. DEPARTMENT OF LABOR Cookson, Inc., 16144 Westwoods Time and Date: The meeting will Business Park, Ellisville, Missouri begin at 9 a.m. EST (Eastern Standard Occupational Safety and Health 63021–4500, made application to the Time) on Thursday, March 25, 2004, Administration Drug Enforcement Administration and continue until 5 p.m. EST that day. (DEA) to be registered as an importer of The meeting will reconvene at 9 a.m. [Docket No. ICR–1218–0150 (2004)] Tetrahydrocannabinols (7370), a basic EST on Friday, March 26, 2004, and class of controlled substance. Control of Hazardous Energy (Lockout/ Small quantities of the products will continue until approximately 3 p.m. Tagout) Standard; Extension of the be imported for research purposes. EST on that day. The period from 3 p.m. Office of Management and Budget’s No comments or objections have been to 5 p.m. EST on March 25 will be Approval of Information-Collection received. DEA has considered the reserved for participation and (Paperwork) Requirements factors in Title 21, United States Code, presentation by members of the public. section 823(a) and determined that the The meeting will reconvene on Friday, AGENCY: Occupational Safety and Health registration of Tocris Cookson, Inc. to March 26, 2004, and adjourn at Administration (OSHA), Labor. import the listed controlled substance is approximately 3 p.m. EST on that day. ACTION: Request for comment. consistent with the public interest and Place: All sessions will be held at the SUMMARY: OSHA solicits comments with United States obligations under Grand Hyatt Washington Center, international treaties, conventions, or concerning its proposal to extend OMB Constitution Room (D, E, & F), 1000 H approval of the information-collection protocols in effect on May 1, 1971, at Street, NW., Washington, DC 20001. this time. DEA has investigated Tocris requirements contained in the Control Cookson, Inc. to ensure that the Status: The meeting will be open to of Hazardous Energy (Lockout/Tagout) company’s registration is consistent the public. Persons who need special Standard (29 CFR 1910.147). The with the public interest. This accommodations should contact Ms. Standard regulates control of hazardous investigation included inspection and Brown on (202) 693–3737 by March 20, energy using lockout or tagout testing of the company’s physical 2004. procedures while employees service, maintain, or repair machines or security systems, verification of the Matters To Be Considered: The formal equipment when activation, start up, or company’s compliance with state and agenda will focus on the following local laws, and a review of the release of energy from an energy source topics: (1) Designation of WIA section is possible. company’s background and history. 166 grantees for Program Years 2004– DATES: Comments must be submitted by Therefore, pursuant to section 1008(a) of 2005; (2) implementation of 2000 the following dates: the Controlled Substances Import and Decennial Census data in the section Hard copy: Your comments must be Export Act and in accordance with Title 166 funding formula(s); (3) other 21, Code of Federal Regulations, submitted (postmarked or received) by Council workgroup reports, especially May 10, 2004. § 1301.34, the above firm is granted the reports and performance standards registration as an importer of the basic Facsimile and electronic workgroup; (4) status of the Council class of controlled substance listed transmission: Your comments must be report to the Department and Congress; above. received by May 10, 2004. (5) status of the Technical Assistance ADDRESSES: Dated: March 3, 2004. and Training Initiative, including plans William J. Walker, for future support of poor performing I. Submission of Comments Deputy Assistant Administrator, Office of grantees; and, time permitting, (6) status Regular mail, express delivery, hand Diversion Control, Drug Enforcement of Welfare Reform and WIA Administration. delivery, and messenger service: Submit reauthorization legislation. your comments and attachments to the [FR Doc. 04–5477 Filed 3–10–04; 8:45 am] OSHA Docket Office, Docket No. ICR BILLING CODE 4410–09–M FOR FURTHER INFORMATION CONTACT: Ms. Athena Brown, Acting Chief, Division of 1218–0150(2004), Room N–2625, U.S. Indian and Native American Programs, Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210. Office of National Programs, DEPARTMENT OF LABOR OSHA Docket Office and Department of Employment and Training Labor hours of operation are 8:15 a.m. Employment and Training Administration, U.S. Department of to 4:45 p.m., e.s.t. Administration Labor, Room S–4203, 200 Constitution Facsimile: If your comments, Avenue, NW., Washington, DC 20210. including any attachments, are 10 pages Workforce Investment Act; Native Telelphone: (202) 693–3737 (VOICE) or fewer, you may fax them to the OSHA American Employment and Training (this is not a toll-free number) or 1–800– Docket Office at (202) 693–1648. You Council 877–8339 (TTY) or speech-to-speech at must include the docket number of this AGENCY: Employment and Training 1–877–877–8982 (these are toll-free document, Docket Number ICR 1218– Administration, Labor. numbers). 0150(2004), in your comments. Electronic: You may submit ACTION: Notice of meeting. comments, but not attachments, through
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the Internet at http:// correct. The Occupational Safety and conduct inspections of energy-control ecomments.osha.gov/. Health Act of 1970 (the Act) authorizes procedures at least annually. An information collection by employers as authorized employee (other than an II. Obtaining Copies of the Supporting necessary or appropriate for authorized employee using the energy- Statement for the Information enforcement of the Act or for developing control procedure that is the subject of Collection Request information regarding the causes and the inspection) is to conduct the The Supporting Statement for the prevention of occupational injuries, inspection and correct any deviations or Information Collection Request is illnesses, and accidents (29 U.S.C. 657). inadequacies identified. For procedures available for downloading from OSHA’s The Standard specifies several involving either lockout or tagout, the Web site at http://www.osha.gov. The paperwork requirements. The following inspection must include a review, Supporting Statement is available for sections describe who uses the between the inspector and each inspection and copying in the OSHA information collected under each authorized employee, of that employee’s Docket Office at the address listed requirement, as well as how they use it. responsibilities under the procedure; for above. A printed copy of the Supporting The purpose of these requirements is to procedures using tagout systems, the Statement can be obtained by contacting control the release of hazardous energy review also involves affected Theda Kenney at (202) 693–2222. while employees service, maintain, or employees, and includes an assessment FOR FURTHER INFORMATION CONTACT: repair machines or equipment when of the employees’ knowledge of the Todd Owen or Theda Kenney, activation, start up, or release of energy training elements required for these Directorate of Standards and Guidance, from an energy source is possible; systems. Paragraph (c)(6)(ii) requires OSHA, U.S. Department of Labor, Room proper control of hazardous energy employers to certify the inspection by N–3609, 200 Constitution Avenue, NW., prevents death and serious injury documenting the date of the inspection, Washington, DC 20210; telephone (202) among these employees. and identifying the machine or 693–2222. Energy-Control Procedure (paragraph equipment and the employee who SUPPLEMENTARY INFORMATION: (c)(4)(i)). With limited exception, performed the inspection. employers must document the Training and Communication I. Submission of Comments on This procedures used to isolate from its (c)(7)(iv). Paragraph (c)(7)(i) specifies Notice and Internet Access to energy source, and render inoperative, that employers must establish a training Comments and Submissions any machine or equipment prior to program that enables employees to You may submit comments in servicing, maintenance, or repair by understand the purpose and function of response to this document by (1) hard employees. These procedures are the energy-control procedures, and copy, (2) fax transmission (facsimile), or necessary when activation, start up, or provides them with the knowledge and (3) electronically through the OSHA release of stored energy from the energy skills necessary for the safe application, Web page. Please note you cannot attach source is possible, and such release use, and removal of energy controls. materials such as studies or journal could cause injury to the employees. According to paragraph (c)(7)(ii), articles to electronic comments. When Paragraph (c)(4)(ii) states that the employers are to ensure that: you have additional materials, you must required documentation must clearly Authorized employees recognize the submit three copies of them to the and specifically outline the scope, applicable hazardous-energy sources, OSHA Docket Office at the address purpose, authorization, rules, and the type and magnitude of the energy above. The additional materials must techniques employees are to use to available in the workplace, and the clearly identify your electronic control hazardous energy, and the methods and means necessary for comments by name, date, subject and means to enforce compliance. The energy isolation and control; affected docket number so we can attach them to document must include at least the employees obtain instruction in the your comments. Because of security- following elements: A specific statement purpose and use of the energy-control related problems, a significant delay regarding the use of the procedure; procedure; and other employees who may occur in the receipt of comments detailed procedural steps for shutting work, or may work, near operations by regular mail. Please contact the down, isolating, blocking, and securing using the energy-control procedure OSHA Docket Office at (202) 693–2350 machines or equipment to control receive training about the procedure, as for information about security hazardous energy, and for placing, well as the prohibition regarding procedures concerning the delivery of removing, and transferring lockout or attempts to restart or reactivate materials by express delivery, hand tagout devices, including the machines or equipment having locks or delivery and messenger service. responsibility for doing so; and tags to control energy release. requirements for testing a machine or When the employer uses a tagout II. Background equipment to determine and verify the system, the training program must The Department of Labor, as part of its effectiveness of lockout or tagout inform employees that: Tags are continuing effort to reduce paperwork devices, as well as other energy-control warning labels affixed to energy- and respondent (i.e., employer) burden, measures. isolating devices, and therefore do not conducts a preclearance consultation The employer uses the information in provide the physical restraint on those program to provide the public with an this document as the basis for informing devices that locks do; they are not to opportunity to comment on proposed and training employees about the remove tags attached to an energy- and continuing information-collection purpose and function of the energy- isolating devices unless permitted to do requirements in accordance with the control procedures, and the safe so by the authorized employee Paperwork Reduction Act of 1995 application, use, and removal of energy responsible for the tag, and they are (PRA–95) (44 U.S.C. 3506(c)(2)(A)). controls. In addition, this information never to bypass, ignore, or in any This program ensures that enables employers to effectively identify manner defeat the tagout system; tags information is in the desired format, operations and processes in the must be legible and understandable by reporting burden (time and costs) is workplace that require energy-control authorized and affected employees, as minimized, collection instruments are procedures. well as other employees who work, or understandable, and OSHA’s estimate of Periodic Inspection (c)(6)(ii). Under may work, near operations using the the information-collection burden is paragraph (c)(6)(i), employers are to energy-control procedure; the materials
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used for tags, including the means of longer safe for servicing, maintenance, (Lockout/Tagout) Standard (29 CFR attaching them, must withstand the and repair.1 1910.147). The Agency will summarize environmental conditions encountered Outside Personnel (Contractors, etc.) the comments submitted in response to in the workplace; tag evoke a false sense (paragraph (f)(2)(i)). When the onsite this notice, and will include this of security, and employees must employer uses an offsite employer (e.g., summary in the request to OMB to understand that tags are only part of the a contractor) to perform the activities extend the approval of the information overall energy-control program; and covered by the scope and application of collection requirements contained in the they must attach tags securely to energy- the Standard, the two employers must Standard * * * isolating devices to prevent removal of inform each other regarding their Type of Review: Extension of a the tags during use. respective lockout or tagout procedures. currently approved information- Paragraph (c)(7)(iii) states that This provision ensures that onsite collection requirement. employers must retrain authorized and employers know about the unique Title: The Control of Hazardous affected employees when a change energy-control procedures used by an Energy (Lockout/Tagout) (29 CFR occurs in: Their job assignments, the offsite employer; this knowledge 1910.147). machines, equipment, or processes such prevents any misunderstanding OMB Number: 1218–0150. Affected Public: Business or other for- that a new hazard is present; and the regarding the implementation of lockout profit; not-for-profit institutions; State, energy-control procedures. Employers or tagout procedures, including the use local or tribal government; Federal also must provide retaining when they of lockout or tagout devices for a government. have reason to believe, or periodic particular application. Disclosure of Inspection and Training Number of Respondents: 818,532. inspection required under paragraph Frequency of Recordkeeping: Initially; (c)(6) indicates, that deviations and Certification Records (paragraphs (c)(6)(ii) and (c)(7)). The inspection annually, on occasion. inadequacies exist in an employee’s Average Time per Response: Varies knowledge or use of energy-control records provide employers with assurance that employees can safely and from 15 seconds (.004 hour) for an procedures. The retraining must employer or authorized employee to reestablish employee proficiency and, if effectively service, maintain, and repair machines and equipment covered by the notify affected employees prior to necessary, introduce new or revised applying, and after removing, a lockout/ energy-control procedures. Standard. These records also provide the most efficient means for an OSHA tagout device from a machine or Under paragraph (c)(7)(iv), employers compliance officer to determine that an equipment to 80 hours for certain are to certify that employees completed employer is complying with the employers to develop energy-control the required training, and that this Standard, and that the machines and procedures. training is up-to-date. The certification equipment are safe for servicing, Total Annual Hours Requested: is to contain each employee’s name and maintenance, and repair. The training 3,421,527. the training date. records provide the most efficient V. Authority and Signature Training employees to recognize means for an OSHA compliance officer John L. Henshaw, Assistant Secretary hazardous-energy sources and to to determine whether an employer has of Labor for Occupational Safety and understand the purpose and function of performed the required training at the Health, directed the preparation of this the energy-control procedures, and necessary and appropriate frequencies. providing them with the knowledge and notice. The authority for this notice is skills necessary to implement safe III. Special Issues for Comment the Paperwork Reduction Act of 1995 application, use, and removal of energy OSHA has a particular interest in (44 U.S.C. 3506), and Secretary of controls, enables them to prevent comments on the following issues: Labor’s Order No. 5–2002 (67 FR serious accidents by using appropriate • Whether the proposed information- 65008). control procedures in a safe manner to collection requirements are necessary Signed in Washington, DC on March 5, isolate these hazards. In addition, for the proper performance of the 2004. written certification of the training Agency’s functions to protect workers, John L. Henshaw, assures the employer that employees including whether the information is Assistant Secretary of Labor. receive the training specified by the useful; [FR Doc. 04–5485 Filed 3–10–04; 8:45 am] • Standard, at the required frequencies. The accuracy of OSHA’s estimate of BILLING CODE 4510–26–M Notification of Employees (paragraph the burden (time and costs) of the (c)(9)). This provision requires the information collection requirements, employer to notify affected employees including the validity of the FEDERAL MINE SAFETY AND HEALTH prior to applying, and after removing, a methodology and assumptions used; REVIEW COMMISSION lockout or tagout device from a machine • The quality, utility, and clarity of or equipment. Such notification informs the information collected; and Sunshine Act Meeting • employees of the impending Ways to minimize the burden on interruption of the normal production employers who must comply; for March 1, 2004. operation, and serves as a reminder of example, by using automated or other TIME AND DATE: 10 a.m., Thursday, the restrictions imposed on them by the technological information-collection March 11, 2004. energy-control program. In addition, and transmission techniques. PLACE: Hearing Room, 9th Floor, 601 this requirement ensures that employees IV. Proposed Actions New Jersey Avenue, NW., Washington, do not attempt to reactivate a machine DC. OSHA is proposing to extend the or piece of equipment after an STATUS: Open. information collection requirements in authorized employee isolates its energy MATTERS TO BE CONSIDERED: the Control of Hazardous Energy The source and renders it inoperative. Commission will consider and act upon Notifying employees after removing an 1 Paragraph (e)(2) requires similar notification; the following in open session: energy-control device alerts them that because of this similarity, the Agency is taking no Secretary of Labor v. Rag Cumberland the machines and equipment are no burden hours or cost for this provision. Resources LP, Docket Nos. PENN 2000–
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181–R et al. (Issues include whether the 74986). No comments were received. NATIONAL ARCHIVES AND RECORDS judge correctly determined that the NARA has submitted the described ADMINISTRATION operator violated 30 CFR §§ 75.334(b) information collection to OMB for and 75.363(a).) approval. Agency Information Collection The Commission heard oral argument Activities: Proposed Collection; In response to this notice, comments in this matter on February 26, 2004. Comment Request and suggestions should address one or Any person attending this oral AGENCY: National Archives and Records argument who requires special more of the following points: (a) Administration (NARA). accessibility features and/or auxiliary Whether the proposed collection aids, such as sign language interpreters, information is necessary for the proper ACTION: Notice. must inform the Commission in advance performance of the functions of NARA; (b) the accuracy of NARA’s estimate of SUMMARY: NARA is giving public notice of those needs. Subject to 29 CFR that the agency proposes to request § 2706.150(a)(3) and § 2706.160(d). the burden of the proposed information collection; (c) ways to enhance the extension of a currently approved FOR FURTHER INFORMATION CONTACT: Jean information collection used by quality, utility, and clarity of the Ellen, (202) 434–9950/(202) 708–9300 customers/researchers for ordering information to be collected; and (d) for TDD Relay / 1–800–877–8339 for toll reproductions of NARA’s motion free. ways to minimize the burden of the picture, audio, and video holdings that collection of information on are housed in the Washington, DC area Jean H. Ellen, respondents, including the use of Chief Docket Clerk. of the National Archives and Records information technology. In this notice, Administration. The public is invited to [FR Doc. 04–5584 Filed 3–8–04; 4:15 pm] NARA is soliciting comments comment on the proposed information BILLING CODE 6735–01–M concerning the following information collection pursuant to the Paperwork collection: Reduction Act of 1995. Title: Microfilm Publication Order DATES: Written comments must be NATIONAL ARCHIVES AND RECORDS Form. received on or before May 10, 2004, to ADMINISTRATION OMB number: 3095–0046. be assured of consideration. ADDRESSES: Comments should be sent Agency Information Collection Agency form number: NATF Form 36. Activities: Submission for OMB to: Paperwork Reduction Act Comments Review; Comment Request Type of review: Regular. (NHP), Room 4400, National Archives Affected public: Business or for-profit, and Records Administration, 8601 AGENCY: National Archives and Records nonprofit organizations and institutions, Adelphi Rd, College Park, MD 20740– Administration (NARA). Federal, State and local government 6001; or faxed to 301–837–3213; or ACTION: Notice. agencies, and individuals or electronically mailed to [email protected]. SUMMARY: NARA is giving public notice households. that the agency has submitted to OMB Estimated number of respondents: FOR FURTHER INFORMATION CONTACT: for approval the information collection 5,200. Requests for additional information or described in this notice. The public is copies of the proposed information Estimated time per response: 10 collection and supporting statement invited to comment on the proposed minutes. information collection pursuant to the should be directed to Tamee Fechhelm Paperwork Reduction Act of 1995. Frequency of response: On occasion. at telephone number 301–837–1694, or fax number 301–837–3213. DATES: Written comments must be Estimated total annual burden hours: submitted to OMB at the address below 867 hours. SUPPLEMENTARY INFORMATION: Pursuant on or before April 12, 2004, to be Abstract: The information collection to the Paperwork Reduction Act of 1995 (Pub. L. 104–13), NARA invites the assured of consideration. is prescribed by 36 CFR 1254.72. The general public and other Federal ADDRESSES: Comments should be collection is prepared by researchers electronically mailed to: agencies to comment on proposed who cannot visit the appropriate NARA information collections. The comments [email protected] or research room or who request copies of faxed to 202–395–5806, Attn: Mr. and suggestions should address one or records as a result of visiting a research more of the following points: (a) Jonathan Womer, Desk Officer for room. NARA offers limited provisions to NARA. Whether the proposed information obtain copies of records by mail and collection is necessary for the proper FOR FURTHER INFORMATION CONTACT: requires requests to be made on performance of the functions of NARA; Requests for additional information or prescribed forms for certain bodies of (b) the accuracy of NARA’s estimate of copies of the proposed information records. The National Archives Trust the burden of the proposed information collection and supporting statement Fund (NATF) Form 36 (11/03), collection; (c) ways to enhance the should be directed to Tamee Fechhelm Microfilm Publication Order Form, is quality, utility, and clarity of the at telephone number 301–837–1694 or used by customers/researchers for information to be collected; and (d) fax number 301–837–3213. ordering a roll, rolls, or a microfiche of ways to minimize the burden of the SUPPLEMENTARY INFORMATION: Pursuant a microfilm publication. collection of information on to the Paperwork Reduction Act of 1995 Dated: May 4, 2004. respondents, including the use of (Pub. L. 104–13), NARA invites the information technology. The comments general public and other Federal L. Reynolds Cahoon, that are submitted will be summarized agencies to comment on proposed Assistant Archivist for Human Resources and and included in the NARA request for information collections. NARA Information Services. Office of Management and Budget published a notice of proposed [FR Doc. 04–5486 Filed 3–10–04; 8:45 am] (OMB) approval. All comments will collection for this information collection BILLING CODE 7515–01–P become a matter of public record. In this on December 29, 2003 (68 FR 74985– notice, NARA is soliciting comments
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concerning the following information VIII. Adjournment NRC Forms 542 and 542A: 567 (.75 collection: [FR Doc. 04–5649 Filed 3–9–04; 1:07 pm] hours per response). 7. Abstract: NRC Forms 540, 541, and Title: Item Approval Request List. BILLING CODE 7570–01–M OMB number: 3095–0025. 542, together with their continuation Agency form number: NA Form 14110 pages, designated by the ‘‘A’’ suffix, provide a set of standardized forms to and 14110A. NUCLEAR REGULATORY meet Department of Transportation Type of review: Regular. COMMISSION Affected public: Business or for-profit, (DOT), NRC, and State requirements. nonprofit organizations and institutions, Agency Information Collection The forms were developed by NRC at Federal, State and local government Activities: Proposed Collection; the request of low-level waste industry agencies, and individuals or Comment Request groups. The forms provide uniformity households. and efficiency in the collection of Estimated number of respondents: AGENCY: U.S. Nuclear Regulatory information contained in manifests 2,816. Commission (NRC). which are required to control transfers Estimated time per response: 15 ACTION: Notice of pending NRC action to of low-level radioactive waste intended minutes. submit an information collection for disposal at a land disposal facility. Frequency of response: On occasion. request to OMB and solicitation of NRC Form 540 contains information Estimated total annual burden hours: public comment. needed to satisfy DOT shipping paper requirements in 49 CFR part 172 and the 704 hours. SUMMARY: The NRC is preparing a Abstract: The information collection waste tracking requirements of NRC in submittal to OMB for review of 10 CFR part 20. NRC Form 541 contains is prescribed by 36 CFR 1254.72. The continued approval of information collection is prepared by researchers information needed by disposal site collections under the provisions of the facilities to safely dispose of low-level who cannot visit the appropriate NARA Paperwork Reduction Act of 1995 (44 research room or who request copies of waste and information to meet NRC and U.S.C. Chapter 35). State requirements regulating these records as a result of visiting a research Information pertaining to the room. NARA offers limited provisions to activities. NRC Form 542, completed by requirement to be submitted: waste collectors or processors, contains obtain copies of records by mail and 1. The title of the information information which facilitates tracking requires requests to be made on collection: NRC Forms 540 and 540A, the identity of the waste generator. That prescribed forms for certain bodies of ‘‘Uniform Low-Level Radioactive Waste tracking becomes more complicated records. NARA uses the Item Approval Manifest (Shipping Paper) and when the waste forms, dimensions, or Request List form to track reproduction Continuation Page;’’ NRC Forms 541 packagings are changed by the waste requests and to provide information for and 541A, ‘‘Uniform Low-Level processor. Each container of waste customers and vendors. Radioactive Waste Manifest, Container shipped from a waste processor may and Waste Description, and Dated: March 4, 2004. contain waste from several different L. Reynolds Cahoon, Continuation Page;’’ NRC Forms 542 and 542A, ‘‘Uniform Low-Level generators. The information provided on Assistant Archivist for Human Resources and NRC Form 542 permits the States and Information Services. Radioactive Waste Manifest, Index and Regional Compact Tabulation.’’ Compacts to know the original [FR Doc. 04–5487 Filed 3–10–04; 8:45 am] 2. Current OMB approval number: generators of low-level waste, as BILLING CODE 7515–01–P 3150–0164 for NRC Forms 540 and authorized by the Low-Level 540A; 3150–0166 for NRC Forms 541 Radioactive Waste Policy Amendments and 541A; and 3150–0165 for NRC Act of 1985, so they can ensure that Forms 542 and 542A. waste is disposed of in the appropriate NEIGHBORHOOD REINVESTMENT 3. How often the collection is Compact. CORPORATION required: Forms are used by shippers Submit, by May 10, 2004, comments whenever radioactive waste is shipped. that address the following questions: Sunshine Act Meeting Quarterly or less frequent reporting is 1. Is the proposed collection of made to NRC depending on specific information necessary for the NRC to TIME AND DATE: 2 p.m., Monday March properly perform its functions? Does the 15, 2004. license conditions. 4. Who is required or asked to report: information have practical utility? PLACE: Neighborhood Reinvestment All NRC-licensed low-level waste 2. Is the burden estimate accurate? Corporation, 1325 G Street NW., Suite facilities. All generators, collectors, and 3. Is there a way to enhance the 800, Boardroom, Washington, DC 20005. processors of low-level waste intended quality, utility, and clarity of the STATUS: Open. for disposal at a low-level waste facility information to be collected? 4. How can the burden of the FOR FURTHER INFORMATION CONTACT: must complete the appropriate forms. information collection be minimized, Jeffrey T. Bryson, General Counsel/ 5. The number of annual respondents: including the use of automated Secretary, (202) 220–2372; NRC Forms 540 and 540A: 2,500 collection techniques or other forms of [email protected]. licensees. NRC Forms 541 and 541A: 2,500 information technology? AGENDA: licensees. A copy of the draft supporting I. Call To Order NRC Forms 542 and 542A: 22 statement may be viewed free of charge II. Approval of Minutes: December 3, 2003— licensees. at the NRC Public Document Room, One Regular Meeting 6. The number of hours needed White Flint North, 11555 Rockville III. Resolution of Appreciation Pike, Room O–1 F21, Rockville, MD IV. Audit Committee Meeting, January 23, annually to complete the requirement or 2004 request: 20852. OMB clearance requests are V. Budget Committee Meeting, February 11, NRC Forms 540 and 540A: 10,050 (.75 available at the NRC worldwide Web 2004 hours per response). site: http://www.nrc.gov/public-involve/ VI. Treasurer’s Report NRC Forms 541 and 541A: 44,341 (3.3 doc-comment/omb/index.html. The VII. Executive Directors’ Report hours per response). document will be available on the NRC
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home page site for 60 days after the Management, 1900 E Street, NW., Dated: March 5, 2004. signature date of this notice. Room 3349A, Washington, DC 20415, Karen A. Cook, Comments and questions about the and General Counsel. information collection requirements Joseph F. Lackey, OPM Desk Officer, [FR Doc. 04–5515 Filed 3–10–04; 8:45 am] may be directed to the NRC Clearance Office of Information & Regulatory BILLING CODE 4310–4R–P Officer, Brenda Jo. Shelton, U.S. Nuclear Affairs, Office of Management and Regulatory Commission, T–5 F52, Budget, New Executive Office Washington, DC 20555–0001, by Building, NW., Room 10235, SECURITIES AND EXCHANGE telephone at 301–415–7233, or by Washington, DC 20503. COMMISSION Internet electronic mail to [email protected]. FOR INFORMATION REGARDING [Release No. IC–26378; File No. 812–13040] ADMINISTRATIVE COORDINATION CONTACT: Dated at Rockville, Maryland, this 5th day Jackson National Life Insurance Cyrus S. Benson, Team Leader, of March 2004. Company, et al. For the Nuclear Regulatory Commission Publications Team, Administrative Brenda Jo. Shelton, Services Branch, (202) 606–0623. March 5, 2004. NRC Clearance Officer, Office of the Chief U.S. Office of Personnel Management AGENCY: Securities and Exchange Information Officer. Kay Coles James, Commission (‘‘SEC’’ or ‘‘Commission’’). [FR Doc. 04–5434 Filed 3–10–04; 8:45 am] Director. ACTION: Notice of Application for an BILLING CODE 7590–01–P [FR Doc. 04–5429 Filed 3–10–04; 8:45 am] order under Section 6(c) of the Investment Company Act of 1940 (the BILLING CODE 6325–50–P ‘‘Act’’) granting exemptions from the OFFICE OF PERSONNEL provisions of Sections 2(a)(32) and MANAGEMENT 27(i)(2)(A) of the Act and Rule 22c–1 PRESIDIO TRUST thereunder to permit the recapture of Submission for OMB Review; contract enhancements applied to Comment Request for Review of a Notice of Public Meeting purchase payments made under certain Revised Information Collection: RI 30– flexible premium deferred variable 1 AGENCY: The Presidio Trust. annuity contracts. ACTION: Notice of public meeting. AGENCY: Office of Personnel APPLICANTS: Jackson National Life Management. Insurance Company (‘‘Jackson SUMMARY: In accordance with section National’’), Jackson National Separate ACTION: Notice. 103(c)(6) of the Presidio Trust Act, 16 Account—I (the ‘‘Separate Account’’) U.S.C. 460bb note, Title I of Pub. L. SUMMARY: In accordance with the and Jackson National Life Distributors, 104–333, 110 Stat. 4097, as amended, Paperwork Reduction Act of 1995 (Pub. Inc. (‘‘Distributor,’’ and collectively, and in accordance with the Presidio L. 104–13, May 22, 1995), this notice ‘‘Applicants’’). Trust’s bylaws, notice is hereby given announces that the Office of Personnel SUMMARY OF APPLICATION: Applicants Management (OPM) has submitted to that a public meeting of the Presidio Trust Board of Directors will be held seek an order under Section 6(c) of the the Office of Management and Budget Act to the extent necessary to permit the (OMB) a request for review of a revised commencing 6:30 p.m. on Wednesday, April 14, 2004, at the Officers’ Club, 50 recapture, under specified information collection. RI 30–1, Request circumstances, of certain contract to Disability Annuitant for Information Moraga Avenue, Presidio of San Francisco, California. The Presidio Trust enhancements applied to purchase on Physical Condition and Employment, payments made under the deferred is used by persons who are not yet age was created by Congress in 1996 to manage approximately eighty percent of variable annuity contracts described in 60 and who are receiving disability the application that Jackson National annuity and are subject to inquiry as to the former U.S. Army base known as the Presidio, in San Francisco, California. will issue through the Separate Account their medical condition as OPM deems (the ‘‘Contracts’’), as well as other reasonably necessary. RI 30–1 collects The purposes of this meeting are to contracts that Jackson National may information as to whether the disabling provide the Executive Director’s report issue in the future through their existing condition has changed. and to receive public comment or future separate accounts (‘‘Other Approximately 8,000 RI 30–1 forms regarding the Environmental Accounts’’) that are substantially similar will be completed annually. We Assessment (EA) for the Public Health in all material respects to the Contracts estimate that it takes approximately 60 Service Hospital project. A previous (‘‘Future Contracts’’). Applicants also minutes to complete the form. The notice announcing the availability of the request that the order being sought annual burden is 8,000 hours. EA and scheduling of a public comment extend to any other National For copies of this proposal, contact period was published at 69 FR 9651. Association of Securities Dealers, Inc. Mary Beth Smith-Toomey on (202) 606– Accommodation: Individuals (‘‘NASD’’) member broker-dealer 8358, FAX (202) 418–3251 or e-mail to requiring special accommodation at this controlling or controlled by, or under [email protected]. Please include meeting, such as needing a sign common control with, Jackson National, your mailing address with your request. language interpreter, should contact whether existing or created in the DATES: Comments on this proposal Mollie Matull at (415) 561–5300 prior to future, that serves as distributor or should be received within 30 calendar April 2, 2004. principal underwriter for the Contracts days from the date of this publication. FOR FURTHER INFORMATION CONTACT: or Future Contracts (‘‘Affiliated Broker- ADDRESSES: Send or deliver comments Karen Cook, General Counsel, the Dealers’’), and any successors in interest to— Presidio Trust, 34 Graham Street, P.O. to the Applicants. Ronald W. Melton, Chief, Operations Box 29052, San Francisco, California FILING DATE: The Application was filed Support Group, Retirement Services 94129–0052, Telephone: (415) 561– on November 13, 2003, and amended on Program, U.S. Office of Personnel 5300. February 24, 2004.
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HEARING OR NOTIFICATION OF HEARING: An 14, 1993, pursuant to the provisions of the future and some of those currently order granting the application will be Michigan law and the authority granted expected to be offered could be issued unless the Commission orders a under a resolution of Jackson National’s eliminated or combined with other hearing. Interested persons may request Board of Directors. Jackson National is Investment Divisions in the future. a hearing by writing to the Secretary of the depositor of the Separate Account. Similarly, Future Contracts may offer the Commission and serving Applicants The Separate Account meets the additional or different Investment with a copy of the request, in person or definition of a ‘‘separate account’’ under Divisions. by mail. Hearing requests should be the federal securities laws and is 7. Transfers among the Investment received by the Commission by 5:30 registered with the Commission as a Divisions are permitted. The first 15 p.m. on March 29, 2004, and should be unit investment trust under the Act (File transfers in a contract year are free; accompanied by proof of service on the No. 811–08664). The Separate Account subsequent transfers cost $25. Certain Applicants, in the form of an affidavit will fund the variable benefits available transfers to, from and among the Fixed or, for lawyers, a certificate of service. under the Contracts. The offering of the Accounts are also permitted during the Hearing requests should state the nature Contracts will be registered under the Contracts’ accumulation phase, but are of the writer’s interest, the reason for the Securities Act of 1933 (the ‘‘1933 Act’’). subject to certain adjustments and request, and the issues contested. 3. The Distributor is a wholly-owned limitations. Dollar cost averaging and Persons who wish to be notified of a subsidiary of Jackson National and rebalancing transfers are offered at no hearing may request notification by serves as the distributor of the charge and do not count against the 15 writing to the Secretary of the Contracts. The Distributor is registered free transfers permitted each year. with the Commission as a broker-dealer Commission. 8. Each time an owner makes a under the Securities Exchange Act of ADDRESSES: premium payment during the first Secretary, Securities and 1934 (the ‘‘1934 Act’’) and is a member contract year, Jackson National will add Exchange Commission, 450 Fifth Street, of the NASD. The Distributor enters into an additional amount to the owner’s NW., Washington, DC 20549–0609. selling group agreements with affiliated contract value (a ‘‘Contract Applicants, Jackson National Life and unaffiliated broker-dealers. The Enhancement’’). All Contract Insurance Company, 1 Corporate Way, Contracts are sold by licensed insurance Enhancements are paid from Jackson Lansing, Michigan 48951, Attn: Susan agents who are registered National’s general account assets. The Rhee, Esq.; copies to Joan E. Boros, Esq., representatives of broker-dealers that are Contract Enhancement is equal to five or Jorden Burt LLP, 1025 Thomas Jefferson registered under the 1934 Act and are six percent of the premium payment. Street, NW., Suite 400 East, Washington, members of the NASD. DC 20007–0805. 4. The Contracts require a minimum Jackson National will allocate the FOR FURTHER INFORMATION CONTACT: initial premium payment of $5,000 Contract Enhancement to the Fixed Harry Eisenstein, Senior Counsel, at under most circumstances ($2,000 for a Accounts and/or Investment Divisions (202) 942–0552, or Zandra Y. Bailes, qualified plan contract). Subsequent in the same proportion as the premium Branch Chief, at (202) 942–0670, Office payments may be made at any time payment allocation. The Contract of Insurance Products, Division of during the accumulation phase. Each Enhancement is not credited to any Investment Management. subsequent payment must be at least premiums received after the first contract year. SUPPLEMENTARY INFORMATION: The $500 ($50 under an automatic payment following is a summary of the plan). Prior approval by Jackson 9. Jackson National will recapture all application. The complete application is National is required for aggregate or a portion of any Contract available for a fee from the SEC’s Public premium payments of over $1,000,000. Enhancements by imposing a recapture Reference Branch, 450 Fifth Street, NW., 5. The Contracts permit owners to charge whenever an owner: (i) Makes a Washington, DC 20549–0102 ((202) accumulate contract values on a fixed total withdrawal within the recapture 942–8090). basis through allocations to one of four charge period or a partial withdrawal of fixed accounts (the ‘‘Fixed Accounts’’), corresponding premiums within the Applicants’ Representations as made available from time to time recapture charge period in excess of 1. Jackson National is a stock life which offer guaranteed crediting rates those permitted under the Contracts’ insurance company organized under the for specified periods of time (currently free withdrawal provisions, unless the laws of the state of Michigan in June one, three, five and seven years). withdrawal is made for certain health- 1961. Its legal domicile and principal 6. The Contracts also permit owners related emergencies specified in the business address is 1 Corporate Way, to accumulate contract values on a Contracts; (ii) elects to receive payments Lansing, Michigan 48951. Jackson variable basis, through allocations to under an income option within the National is admitted to conduct life one or more of the investment divisions recapture charge period; or (iii) returns insurance and annuity business in the of the Separate Account (the the Contract during the free look period. District of Columbia and all states ‘‘Investment Divisions,’’ collectively 10. The amount of the recapture except New York. Jackson National is with the Fixed Accounts, the charge varies, depending upon which ultimately a wholly-owned subsidiary of ‘‘Allocation Options’’). 55 Investment Contract Enhancement is elected, when Prudential plc (London, England). Divisions are expected to be offered the charge is imposed and which 2. The Separate Account was under the Contracts, but additional withdrawal charge schedule is elected, established by Jackson National on June Investment Divisions may be offered in as follows:
CONTRACT ENHANCEMENT RECAPTURE CHARGE [As a percentage of first year premium payments]
Completed Years Since Premium Receipt 012345678+
Charge (5 or 6% Contract Enhancement) ...... 4.5 3.75 3.25 2.75 2 1.25 .5 0 0 Charge (6 year withdrawal charge option) ...... 4.5 3.75 3.25 2.75 2 1.25 0 0 0
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11. The recapture charge percentage adjustments), annual contract income and death benefits, but in no will be applied to the corresponding maintenance charges, transfer charges, event will such additional features be premium reflected in the amount any applicable charges due under any related to or affect the Contract withdrawn or the amount applied to optional endorsement and premium Enhancement. income payments that remain subject to taxes). 20. The Contracts have a ‘‘free look’’ 16. The owner is also offered certain a withdrawal charge. The amount period of ten days after the owner recaptured will be taken from the optional endorsements that can change receives the Contract (or any longer Investment Divisions and the Fixed the death benefit paid to the beneficiary. period required by state law). Contract Accounts in the same proportion as the First, an ‘‘Earnings Protection Benefit value, without the deduction for any withdrawal charge. Endorsement’’ is offered to owners who 12. Recapture charges will be waived are no older than age 75 when their sales charges, is returned upon exercise upon death, but will be applied upon Contracts are issued. This endorsement of free look rights by an owner unless electing to commence income payments, would add to the death benefit state law requires the return of even in a situation where the otherwise payable an amount equal to a premiums paid. The Contract withdrawal charge is waived. Partial specified percentage (that varies with Enhancement recapture charge reduces withdrawals will be deemed to remove the owner’s age at issue) of earnings the amount returned. premium payments on a first-in-first-out under the Contract up to a cap of 250% 21. In addition to the Contract basis (the order that entails payment of of remaining premiums (premiums not Enhancement recapture charges and the lowest withdrawal and recapture previously withdrawn), excluding transfer charges, the Contracts have the charges). remaining premiums paid in the 12 following charges: Mortality and 13. Jackson National does not assess months prior to the date of death (other expense risk charge of 1.50%; an the recapture charge on any payments than the initial premium if the owner administration charge of 0.15% (as an paid out as: Death benefits; withdrawals dies in the first contract year). annual percentage of average daily taken under the free withdrawal 17. Second, the owner of a Contract is account value); a contract maintenance provision; withdrawals necessary to offered the following five optional death charge of $35 per year (waived if satisfy the minimum distribution benefits (that would replace the base contract value is $50,000 or more at the requirements of the Internal Revenue death benefit): (i) 5% Roll-Up Death time the charge is imposed); a charge for Code (if the withdrawal requested Benefit, (ii) 4% Roll-Up Death Benefit, the optional Earnings Protection Benefit exceeds the minimum required (iii) Highest Anniversary Value Death distribution, the recapture charge will Benefit, (iv) Combination 5% Roll-Up & of .30% (as an annual percentage of not be waived on the minimum required Highest Anniversary Value Death daily account value); a charge for the distribution); if permitted by the Benefit or a (v) Combination 4% Roll- optional Guaranteed Minimum Income owner’s state, withdrawals of up to Up & Highest Anniversary Value Death Benefit of .40% (as an annual $250,000 from the contract value in Benefit. percentage of the ‘‘GMIB Benefit Base’’); connection with the owner’s terminal 18. The Contracts offer fixed and charge for the optional limit on the illness or if the owner needs extended variable versions of the following four withdrawal charge period to six years of hospital or nursing-home care as types of annuity payment or ‘‘income .35% (as an annual percentage of daily provided in the Contract; or if permitted payment:’’ life income, joint and account value); a charge for optional by the owner’s state, withdrawals of up survivor, life annuity with 120 or 240 death benefits of either .25%, .30%, to 25% of contract value (12.5% for monthly payments guaranteed to be .40%, .45% or .55% (as an annual each of two joint owners) from the paid (although not guaranteed as to percentage of daily account value), contract value in connection with amount if variable), and income for a depending on which optional death certain serious medical conditions specified period of from 5 to 30 years. benefit endorsement (if any) is elected; specified in the Contract. The Contracts also offer an optional a charge for the optional guaranteed 14. The contract value will reflect any Guaranteed Minimum Income Benefit minimum withdrawal benefit of .35% gains or losses attributable to a Contract endorsement. Jackson National may also (as an annual percentage of daily Enhancement described above. Contract offer other income payment options. account value); a commutation fee that Enhancements, and any gains or losses 19. In addition to the Earnings applies only upon withdrawals from attributable to a Contract Enhancement, Protection Benefit and optional death income payments for a fixed period, distributed under the Contracts will be benefit endorsements described above, measured by the difference in values considered earnings under the Contract additional optional endorsements are paid on such a withdrawal due to using for tax purposes and for purposes of offered with the Contracts, two of which a discount rate of one percent greater calculating free withdrawal amounts. relate to withdrawals: (i) An than the assumed investment rate used 15. If the owner dies during the endorsement that reduces the in computing the amounts of income accumulation phase of the Contracts the withdrawal charges applicable under payments; and a withdrawal charge that beneficiary named by the owner is paid the Contract and shortens the period for applies to total withdrawals, to certain a death benefit by Jackson National. The which withdrawal charges are imposed partial withdrawals, and on the income Contracts’ base death benefit, which to six years; and (ii) an endorsement applies unless an optional death benefit that permits an owner to make partial date (the date income payments has been elected, is a payment to the withdrawals, prior to the Income Date commence) if the income date is within beneficiary of the greater of: (i) Contract that, in total, equal the amount of net a year of the date the Contract was value on the date Jackson National premium payments made (if elected issued. receives proof of death and completed after issue, the contract value, less any 22. The withdrawal charge for the claim forms from the beneficiary or (ii) recapture charges, will be used instead Contracts varies, depending upon the the total premiums paid under that of the net premium payment at issue). contribution year of the premium Contract minus any prior withdrawals Jackson National may offer additional withdrawn, (but in no event will be (including any applicable charges and endorsements, including optional greater than) as follows:
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WITHDRAWAL CHARGE [As a percentage of premium payments]
Completed years since receipt of premium 0 1 2 3 4 5 6 7 8 9+
Charge ...... 8.5 8 7 6 5 4 3 2 1 0 Charge if 6 year period is elected ...... 8 7 5.5 4 2.5 1 0 0 0 0
23. The withdrawal charge is waived and principal underwriter of such relating to withdrawals or receiving upon withdrawals to satisfy the account, except as provided in income payments within the first seven minimum distribution requirements of paragraph (2) of the subsection. years of a premium contribution is the Internal Revenue Code (if the Paragraph (2) provides that it shall be designed to protect Jackson National withdrawal requested exceeds the unlawful for such a separate account or against Contract owners not holding the minimum required distribution, the sponsoring insurance company to sell a Contract for a sufficient time period. withdrawal charge will not be waived contract funded by the registered According to Applicants, it would on the minimum required distribution) separate account unless such contract is provide Jackson National with and, to the extent permitted by state a redeemable security. Section 2(a)(32) insufficient time to recover the cost of law, the withdrawal fee is waived in defines ‘‘redeemable security’’ as any the Contract Enhancement, to its connection with withdrawals of: (i) Up security, other than short-term paper, financial detriment. to $250,000 from the contract value in under the terms of which the holder, 5. Applicants represent that it is not connection with the terminal illness of upon presentation to the issuer, is administratively feasible to track the the owner of a Contract, or in entitled to receive approximately his Contract Enhancement amount in the connection with extended hospital or proportionate share of the issuer’s Separate Accounts after the Contract nursing home care for the owner; and current net assets, or the cash equivalent Enhancement(s) is applied. (ii) up to 25% (12.5% each for two joint thereof. Accordingly, the asset-based charges owners) of contract value in connection 3. Applicants submit that the applicable to the Separate Accounts will with certain serious medical conditions recapture of the Contract Enhancement be assessed against the entire amounts specified in the Contract. in the circumstances set forth in the held in the Separate Accounts, application would not deprive an owner including any Contract Enhancement Applicants’ Legal Analysis of his or her proportionate share of the amounts. As a result, the aggregate 1. Section 6(c) of the Act authorizes issuer’s current net assets. A Contract asset-based charges assessed will be the Commission to exempt any person, owner’s interest in the amount of the higher than those that would be charged security or transaction, or any class or Contract Enhancement allocated to his if the Contract owner’s Contract value classes of persons, securities or or her Contract value upon receipt of a did not include any Contract transactions from the provisions of the premium payment is not fully vested Enhancement. Jackson National Act and the rules promulgated until three complete years following a nonetheless represents that the thereunder if and to the extent that such premium. Until or unless the amount of Contracts’ fees and charges, in the exemption is necessary or appropriate any Contract Enhancement is vested, aggregate, are reasonable in relation to in the public interest and consistent Jackson National retains the right and service rendered, the expenses expected with the protection of investors and the interest in the Contract Enhancement to be incurred, and the risks assumed by purposes fairly intended by the policy amount, although not in the earnings Jackson National. and provisions of the Act. Applicants attributable to that amount. Thus, 6. Applicants submit that the request that the Commission pursuant to Applicants urge that when Jackson provisions for recapture of any Contract Section 6(c) of the Act grant the National recaptures any Contract Enhancement under the Contracts do exemptions requested below with Enhancement it is simply retrieving its not violate Sections 2(a)(32) and respect to the Contracts and any Future own assets, and because a Contract 27(i)(2)(A) of the Act. Applicants assert Contracts funded by the Separate owner’s interest in the Contract that the application of a Contract Account or Other Accounts that are Enhancement is not vested, the Contract Enhancement to premium payments issued by Jackson National and owner has not been deprived of a made under the Contracts should not underwritten or distributed by the proportionate share of the Separate raise any questions as to compliance by Distributor or Affiliated Broker-Dealers. Account’s assets, i.e., a share of the Jackson National with the provisions of Applicants undertake that Future Separate Account’s assets proportionate Section 27(i). However, to avoid any Contracts funded by the Separate to the Contract owner’s contract value. uncertainty as to full compliance with Account or Other Accounts, in the 4. In addition, Applicants state that it the Act, Applicants request an future, will be substantially similar in would be patently unfair to allow a exemption from Sections 2(a)(32) and all material respects to the Contracts. Contract owner exercising the free-look 27(i)(2)(A), to the extent deemed Applicants believe that the requested privilege to retain the Contract necessary, to permit the recapture of any exemptions are appropriate in the Enhancement amount under a Contract Contract Enhancement under the public interest and consistent with the that has been returned for a refund after circumstances described in the protection of investors and the purposes a period of only a few days. If Jackson Application, without the loss of relief fairly intended by the policy and National could not recapture the from Section 27 provided by Section provisions of the Act. Contract Enhancement, Applicants 27(i). 2. Subsection (i) of Section 27 of the claim that individuals could purchase a 7. Section 22(c) of the Act authorizes Act provides that Section 27 does not Contract with no intention of retaining the Commission to make rules and apply to any registered separate account it and simply return it for a quick profit. regulations applicable to registered funding variable insurance contracts, or Furthermore, Applicants state that the investment companies and to principal to the sponsoring insurance company recapture of the Contract Enhancement underwriters of, and dealers in, the
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redeemable securities of any registered 22c–1 was meant to address is found in flexible premium, deferred variable investment company to accomplish the the recapture of the Contract annuity contracts. same purposes as contemplated by Enhancement, Rule 22c–1 should not Section 22(a). Rule 22c–1 under the Act apply to any Contract Enhancement. Applicants: Jackson National Life prohibits a registered investment However, to avoid any uncertainty as to Insurance Company (‘‘Jackson company issuing any redeemable full compliance with Rule 22c–1, National’’), Jackson National Separate security, a person designated in such Applicants request an exemption from Account—I (the ‘‘JNL Separate issuer’s prospectus as authorized to the provisions of Rule 22c–1 to the Account’’), Jackson National Life consummate transactions in any such extent deemed necessary to permit them Insurance Company of New York (‘‘JNL security, and a principal underwriter of, to recapture the Contract Enhancement New York,’’ and collectively with or dealer in, such security, from selling, under the Contracts. Jackson National, the ‘‘Insurance Companies’’), JNLNY Separate Account redeeming, or repurchasing any such 9. Applicants submit that extending I (the ‘‘JNLNY Separate Account,’’ and security except at a price based on the the requested relief to encompass Future collectively with JNL Separate Account, current net asset value of such security Contracts and Other Accounts is the ‘‘Separate Accounts’’), and Jackson which is next computed after receipt of appropriate in the public interest National Life Distributors, Inc. a tender of such security for redemption because it promotes competitiveness in (‘‘Distributor,’’ collectively with the or of an order to purchase or sell such the variable annuity market by Insurance Companies and Separate security. eliminating the need to file redundant Accounts, ‘‘Applicants’’). 8. It is possible that someone might exemptive applications prior to Summary of Application: Applicants view Jackson National’s recapture of the introducing new variable annuity seek an order under section 6(c) of the Contract Enhancements as resulting in contracts. Applicants assert that Act to amend an existing order to the the redemption of redeemable securities investors would receive no benefit or extent necessary to permit the recapture, for a price other than one based on the additional protection by requiring under specified circumstances, of current net asset value of the Separate Applicants to repeatedly seek exemptive certain contract enhancements applied Accounts. Applicants contend, relief that would present no issues to purchase payments made under the however, that the recapture of the under the Act not already addressed in flexible premium, deferred variable Contract Enhancement does not violate the Application. annuity contracts described herein that Rule 22c–1. The recapture of some or all Applicants further submit, for the Jackson National will issue through the of the Contract Enhancement does not reasons stated herein, that their JNL Separate Account (the ‘‘Amended involve either of the evils that Rule 22c– exemptive request meets the standards JNL Contract’’) and that JNL New York 1 was intended to eliminate or reduce set out in Section 6(c) of the Act, will issue through the JNLNY Separate as far as reasonably practicable, namely: namely, that the exemptions requested Account (the ‘‘Amended JNLNY (i) The dilution of the value of are necessary or appropriate in the Contract,’’ and collectively with the outstanding redeemable securities of public interest and consistent with the Amended JNL Contract, the ‘‘Amended registered investment companies protection of investors and the purposes Contract(s)’’), as well as other contracts through their sale at a price below net fairly intended by the policy and that the Insurance Companies may issue asset value or repurchase at a price provisions of the Act and that, therefore, in the future through their existing or above it; and (ii) other unfair results, the Commission should grant the future separate accounts (‘‘Other including speculative trading practices. requested order. Accounts’’) that are substantially similar To effect a recapture of a Contract For the Commission, by the Division of in all material respects to the Amended Enhancement, Jackson National will Investment Management, pursuant to Contracts (‘‘Future Contracts’’). redeem interests in a Contract owner’s delegated authority. Applicants also request that the order Contract value at a price determined on J. Lynn Taylor, being sought extend to any other the basis of the current net asset value Assistant Secretary. National Association of Securities of the Separate Accounts. The amount [FR Doc. 04–5546 Filed 3–10–04; 8:45 am] Dealers, Inc. (‘‘NASD’’) member broker- recaptured will be less than or equal to BILLING CODE 8010–01–P dealer controlling or controlled by, or the amount of the Contract under common control with, Jackson Enhancement that Jackson National paid National, whether existing or created in out of its general account assets. SECURITIES AND EXCHANGE the future, that serves as distributor or Although Contract owners will be COMMISSION principal underwriter for the Amended entitled to retain any investment gains Contracts or Future Contracts attributable to the Contract [Release No. IC–26379; File No. 812–13053] (‘‘Affiliated Broker-Dealers’’), and any Enhancement and to bear any successors in interest to the Applicants. investment losses attributable to the Jackson National Life Insurance Filing Date: The application was filed Contract Enhancement, the amount of Company, et al. on December 23, 2003. such gains or losses will be determined Hearing or Notification of Hearing: An on the basis of the current net asset March 5, 2004. order granting the application will be values of the Separate Accounts. Thus, AGENCY: Securities and Exchange issued unless the Commission orders a no dilution will occur upon the Commission (‘‘SEC’’ or ‘‘Commission’’). hearing. Interested persons may request recapture of the Contract Enhancement. ACTION: Notice of Application for an a hearing by writing to the Secretary of Applicants also submit that the second amended order under section 6(c) of the the Commission and serving Applicants harm that Rule 22c–1 was designed to Investment Company Act of 1940 (the with a copy of the request, in person or address, namely, speculative trading ‘‘Act’’) granting exemptions from the by mail. Hearing requests should be practices calculated to take advantage of provisions of sections 2(a)(32) and received by the Commission by 5:30 backward pricing, will not occur as a 27(i)(2)(A) of the Act and Rule 22c–1 p.m. on March 29, 2004, and should be result of the recapture of the Contract thereunder to permit the recapture of accompanied by proof of service on the Enhancement. Applicants assert that, contract enhancements applied to Applicants, in the form of an affidavit because neither of the harms that Rule purchase payments made under certain or, for lawyers, a certificate of service.
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Hearing requests should state the nature Separate Account. Each of the Separate allocations to one or more of the sub- of the writer’s interest, the reason for the Accounts meets the definition of a accounts of the Separate Accounts (the request, and the issues contested. ‘‘separate account’’ under the federal ‘‘Investment Divisions,’’ and Persons who wish to be notified of a securities laws and each is registered collectively with the Fixed Accounts, hearing may request notification by with the Commission as a unit the ‘‘Allocation Options’’). There are writing to the Secretary of the investment trust under the Act (File currently 55 Investment Divisions Commission. Nos. 811–08664 and 811–08401, expected to be offered under the ADDRESSES: Secretary, Securities and respectively). JNL Separate Account and Amended Contracts, but additional Exchange Commission, 450 Fifth Street, JNLNY Separate Account will fund, Investment Divisions may be offered in NW., Washington, DC 20549–0609. respectively, the variable benefits the future and some of those currently Applicants, c/o Susan Rhee, Esq., available under the Amended JNL expected to be offered could be Jackson National Life Insurance Contracts and the Amended JNLNY eliminated or combined with other Company, 1 Corporate Way, Lansing, Contracts. The offering of the Amended Investment Divisions in the future. Michigan 48951; copies to Joan Boros, Contracts will be registered under the Similarly, Future Contracts may offer Esq., Jorden Burt LLP, 1025 Thomas Securities Act of 1933 (the ‘‘1933 Act’’). additional or different Investment 4. The Distributor is a wholly-owned Jefferson Street, NW., Suite 400 East, Divisions. Each Investment Division subsidiary of Jackson National and Washington, DC 20007–0805. will invest in shares of a corresponding serves as the distributor of the Amended series of JNL Series Trust or JNL FOR FURTHER INFORMATION CONTACT: Contracts. The Distributor is registered Variable Fund LLC. Not all Investment Harry Eisenstein, Senior Counsel, at with the Commission as a broker-dealer Divisions may be available. (202) 942–0552, or Zandra Y. Bailes, under the Securities Exchange Act of 9. Transfers among the Investment Branch Chief, at (202) 942–0670, Office 1934 (the ‘‘1934 Act’’) and is a member Divisions are permitted. The first 15 of Insurance Products, Division of of the NASD. The Distributor enters into transfers in a contract year are free; Investment Management. selling group agreements with affiliated subsequent transfers cost $25. Certain SUPPLEMENTARY INFORMATION: The and unaffiliated broker-dealers. The transfers to, from and among the Fixed following is a summary of the Amended Contracts are sold by licensed Accounts are also permitted during the application. The complete application is insurance agents, where the Amended Amended Contracts’ accumulation available for a fee from the SEC’s Public Contracts may be lawfully sold, who are phase, but are subject to certain Reference Branch, 450 Fifth Street, NW., registered representatives of broker- adjustments and limitations. Dollar cost Washington, DC 20549–0102 ((202) dealers which are registered under the averaging and rebalancing transfers are 942–8090). 1934 Act and are members of the NASD. offered at no charge and do not count Applicants’ Representations: 5. The Amended Contracts require a against the 15 free transfers permitted 1. Jackson National is a stock life minimum initial premium payment of each year. insurance company organized under the $5,000 under most circumstances 10. The owner is also offered certain laws of the state of Michigan in June ($2,000 for a qualified plan contract). optional endorsements (for fees 1961. Its legal domicile and principal Subsequent payments may be made at described below) that can change the business address is 1 Corporate Way, any time during the accumulation death benefit paid to the beneficiary. Lansing, Michigan 48951. Jackson phase. Each subsequent payment must First, an ‘‘Earnings Protection Benefit National is admitted to conduct life be at least $500 ($50 under an automatic Endorsement’’ is offered to owners who insurance and annuity business in the payment plan). Prior approval by the are no older than age 75 when their District of Columbia and all states relevant Insurance Company is required Amended Contracts are issued. This except New York. Jackson National is for aggregate premium payments of over endorsement would add to the death ultimately a wholly-owned subsidiary of $1,000,000. benefit otherwise payable an amount Prudential plc (London, England). 6. The Amended JNL Contracts permit equal to a specified percentage (that 2. JNL New York is a stock life owners to accumulate contract values varies with the owner’s age at issue) of insurance company organized under the on a fixed basis through allocations to earnings under the Amended Contract laws of the state of New York in July one of seven fixed accounts (the ‘‘Fixed up to a cap of 250% of remaining 1995. Its legal domicile and principal Accounts’’), including four ‘‘Guaranteed premiums (premiums not previously address is 2900 Westchester Avenue, Fixed Accounts’’ which offer guaranteed withdrawn) excluding remaining Purchase, New York 10577. JNL New crediting rates for specified periods of premiums paid in the 12 months prior York is admitted to conduct life time (currently, 1, 3, 5, or 7 years), two to the date of death (other than the insurance and annuity business in ‘‘DCA+ Fixed Accounts’’ (used in initial premium if the owner dies in the Delaware, Michigan and New York. JNL connection with dollar cost averaging first contract year), plus remaining New York is ultimately a wholly-owned transfers, each of which from time to premiums in the Indexed Fixed Option subsidiary of Prudential plc (London, time offers special crediting rates) and (the amount allocated to the Indexed England). an ‘‘Indexed Fixed Option’’ (with a Fixed Option accumulated at 3% 3. The JNL Separate Account was minimum guaranteed return and annually, and adjusted for any amounts established by Jackson National on June additional possible returns based on the cancelled or withdrawn for charges, 14, 1993, pursuant to the provisions of performance of the S&P 500 Index). deductions, withdrawals or any taxes Michigan law and the authority granted 7. The Amended JNLNY Contracts due). under a resolution of Jackson National’s permit owners to accumulate contract 11. Second, the owner of an Amended Board of Directors. The JNLNY Separate values on a fixed basis through JNL Contract (but not an Amended Account was established by JNL New allocations to one of four ‘‘Guaranteed JNLNY Contract) is offered the following York on September 12, 1997, pursuant Fixed Accounts’’ which offer guaranteed five optional death benefits (that would to the provisions of New York law and crediting rates for specified periods of replace the base death benefit): (i) A the authority granted under a resolution time (currently, 1, 3, 5, or 7 years). ‘‘4% Roll-Up Death Benefit’’, (ii) a ‘‘5% of JNL New York’s Board of Directors. 8. The Amended Contracts also Roll-Up Death Benefit’’, (iii) a ‘‘Highest Jackson National and JNL New York permit owners to accumulate contract Anniversary Value Death Benefit’’, (iv) a each is the depositors of its respective values on a variable basis, through ‘‘Combination 4% Roll-Up and Highest
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Anniversary Value Death Benefit’’ or (v) elected after issue, the contract value, asset-based charges for the other a ‘‘Combination 5% Roll-Up and less any recapture charges will be used Contract Enhancements apply for seven Highest Anniversary Value Death instead of the net premium payment at years and are 0.42% and 0.56%, Benefit.’’ issue); and (iv) on May 1, 2004, an respectively, for the 3% and 4% 12. The Amended Contracts offer additional 5% for Life GMWB will be Contract Enhancements. These charges fixed and variable versions of the offered, which will permit partial will also be assessed against any following four types of annuity payment withdrawals prior to the Income Date amounts an Amended Contract owner or ‘‘income payment:’’ life income, joint for the longer of the duration of the has allocated to the guaranteed and survivor, life annuity with 120 or owner’s life or until total periodic accounts, resulting in a lower credited 240 monthly payments guaranteed to be withdrawals equals (a) the total net interest rate than the annual credited paid (although not guaranteed as to premium payments if elected at issue or interest rate that would apply to the amount if variable), and income for a (b) contract value net of any recapture guaranteed account if the Contract specified period of from 5 to 30 years. charges if elected after issue. Enhancement had not been elected. The Insurance Companies may also offer 14. If one of the optional Contract 16. The Insurance Companies will other income payment options. Enhancement endorsements is elected, recapture all or a portion of any 13. In addition to the Earnings each time an owner makes a premium Contract Enhancements by imposing a Protection Benefit and optional death payment during the first contract year, recapture charge whenever an owner: (i) benefit endorsements described above Jackson National or JNL New York will makes a total withdrawal within the and the optional Contract add an additional amount to the owner’s recapture charge period (five years after Enhancements endorsements defined contract value (a ‘‘Contract a first year payment in the case of the below, additional optional Enhancement’’). All Contract 2% Contract Enhancement and seven endorsements are offered with the Enhancements are paid from the years after a first year payment in the Amended Contracts, four of which Insurance Companies’ general account case of the other Contract relate to withdrawals: (i) An assets. The Contract Enhancement is Enhancements) or a partial withdrawal endorsement that expands the equal to 2%, 3%, or 4% of the premium of corresponding premiums within the percentage of premiums (that remain payment. At issue, an Amended recapture charge period in excess of subject to a withdrawal charge) that may Contract Owner can choose only one of those permitted under the Amended be withdrawn in a contract year with no the Contract Enhancement Contracts’ free withdrawal provisions withdrawal charge imposed from 10% endorsements. An owner may not elect (including free withdrawals permitted to 20%; (ii) an endorsement that reduces the 3% or 4% Contract Enhancements if by a 20% additional free withdrawal the withdrawal charges applicable the 20% additional free withdrawal endorsement), unless the withdrawal is under the Amended Contract and endorsement is elected. The Insurance made for certain health-related shortens the period for which Companies will allocate the Contract emergencies specified in the Amended withdrawal charges are imposed from Enhancement to the guaranteed Contracts (not all of which are available seven years to five years or three years; accounts and/or Investment Divisions in in the Amended JNLNY contracts); (ii) (iii) an endorsement, the Guaranteed the same proportion as the premium elects to receive payments under an Minimum Withdrawal Benefit payment allocation. The Contract income option within the recapture (‘‘GMWB’’), that permits partial Enhancement is not credited to any charge period; or (iii) returns the withdrawals prior to the Income Date premiums received after the first Amended Contract during the free look (so long as gross partial withdrawals contract year. period taken within any one contract year do 15. There is an asset-based charge for 17. The amount of the recapture not exceed 7% of net premium each of the Contract Enhancements. The charge varies, depending upon which payments) that in total equal the amount 2% Contract Enhancement has a 0.395% Contract Enhancement is elected and of net premium payments made (if charge that applies for five years. The when the charge is imposed, as follows:
CONTRACT ENHANCEMENT RECAPTURE CHARGE [As a Percentage of First Year Premium Payments]
Completed years since receipt of premium 0 1 2 3 4 5 6 7+
. Recapture Charge (2% Credit) ...... 2% 2% 1.25% 1.25% 0.5% 0 0 0 Recapture Charge (3% Credit)...... 3% 3% 2% 2% 2% 1% 1% 0 Recapture Charge (4% Credit) ...... 4% 4% 2.5% 2.5% 2.5% 1.25% 1.25% 0
18. The recapture charge percentage electing to commence income payments, minimum distribution requirements of will be applied to the corresponding even in a situation where the the Internal Revenue Code; if permitted premium reflected in the amount withdrawal charge is waived. Partial by the owner’s state, withdrawals of up withdrawn or the amount applied to withdrawals will be deemed to remove to $250,000 from the Separate Account income payments that remains subject premium payments on a first-in-first-out or from the Fixed Accounts other than to a withdrawal charge. The amount basis (the order that entails payment of the Indexed Fixed Option in connection recaptured will be taken from the the lowest withdrawal and recapture with the owner’s terminal illness or if Investment Divisions and the charges). the owner needs extended hospital or guaranteed accounts in the same 20. The Insurance Companies do not nursing home care as provided in the proportion as the withdrawal charge. assess the recapture charge on any Amended Contract; or if permitted by 19. Recapture charges will be waived payments paid out as: death benefits; the owner’s state, withdrawals of up to upon death, but will be applied upon withdrawals necessary to satisfy the 25% of contract value (12.5% for each
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of two joint owners) in connection with 0.15% (as an annual percentage of applies if related optional endorsement certain serious medical conditions average daily account value); contract is elected) depending upon which (if specified in the Amended Contract. maintenance charge of $35 per year any) optional death benefit endorsement 21. The contract value will reflect any (waived if contract value is $50,000 or is elected; transfer fee of $25 for each gains or losses attributable to a Contract more at the time the charge is imposed); transfer in excess of 15 in a contract Enhancement described above. Contract Earnings Protection Benefit charge of year (for purposes of which dollar cost Enhancements, and any gains or losses 0.30% (as an annual percentage of daily averaging and rebalancing transfers are attributable to a Contract Enhancement, account value—only applies if related excluded); commutation fee that applies distributed under the Amended optional endorsement is elected); GMIB only upon withdrawals from income Contracts will be considered earnings charge of .60% per year (0.15% per payments for a fixed period, measured under the Amended Contract for tax quarter) of the ‘‘GMIB Benefit Base;’’ by the difference in values paid upon purposes and for purposes of calculating GMWB charge of .70% (the current such a withdrawal due to using a free withdrawal amounts. charge for GMWB is .35% and currently discount rate of 1% greater than the 22. The Amended JNL Contracts have there is an increase in the charge to assumed investment rate used in a ‘‘free look’’ period of ten (twenty for .55% when a ‘‘step-up’’ is elected); 5% computing the amounts of income Amended JNLNY Contracts) days after for Life GMWB charge is an annual asset payments; and a withdrawal charge that the owner receives the Amended based charge that will vary by age; 20% applies to total withdrawals, partial Contract (or any longer period required additional free withdrawal benefit withdrawals in excess of amounts by state law). Contract value is returned charge of 0.30% (as an annual permitted to be withdrawn under the upon exercise of free look rights by an percentage of daily account value—only Amended JNL Contract’s free owner unless state law requires the applies if related optional endorsement withdrawal provisions (or the 20% return of premiums paid. The Contract is elected); five-year withdrawal charge additional free withdrawal Enhancement recapture charge reduces period charge of 0.30% (as an annual endorsement) and on the income date the amount returned. percentage of daily account value—only 23. In addition to the Contract applies if related optional endorsement (the date income payments commence) Enhancement charges and the Contract is elected); three-year withdrawal charge if the income date is within a year of the Enhancement recapture charges, the period charge of 0.45% (as an annual date the Amended JNL Contract was Amended JNL Contracts have the percentage of daily account value—only issued. following charges: mortality and applies if related optional endorsement 24. The withdrawal charge for the expense risk charge of 1.10% (as an is elected); optional death benefit charge Amended JNL Contracts varies, annual percentage of average daily of either 0.30% or 0.55% (as an annual depending upon the contribution year of account value); administration charge of percentage of daily account value—only the premium withdrawn as follows:
WITHDRAWAL CHARGE [As a Percentage of Premium Payments]
Completed years since receipt of premium 0 1 2 3 4 5 6 7+
Withdrawal Charge ...... 8.5 8 7 6 5 4 2 0 Withdrawal Charge if Five-Year Period is elected ...... 8 7 6 4 2 0 0 0 Withdrawal Charge if Three-Year Period is elected ...... 7.5 6.5 5 0 0 0 0 0
25. The withdrawal charge is waived 26. The Amended JNLNY Contracts payment from the beneficiary, total upon withdrawals to satisfy the are identical to the Amended JNL premiums minus withdrawals minimum distribution requirements of Contracts in the operation of Contract (including any applicable charges and the Internal Revenue Code and, to the Enhancements, Contract Enhancement adjustments), and premium taxes and extent permitted by state law, the charges and Contract Enhancement the maximum contract value on any withdrawal fee is waived in connection recapture charges. anniversary prior to the owner’s 86th with withdrawals of: (i) Up to $250,000 27. The Amended JNLNY Contracts birthday, minus any withdrawals and from the Investment Divisions or the are identical in other aspects as well, withdrawal charges, and plus any with the following exceptions: (i) The Guaranteed Fixed Accounts of the premiums paid after that anniversary; Indexed Fixed Option, DCA+Fixed Amended Contracts in connection with (iii) the mortality and expense risk Account, waivers of withdrawal charges the terminal illness of the owner of an charge for the Amended JNLNY for terminal illness and specified Contracts is 1.20% (as an annual Amended Contract, or in connection medical conditions, and the three percentage of average daily account with extended hospital or nursing home optional death benefits which replace value); and (iv) the annual contract care for the owner; and (ii) up to 25% the base death benefit will not be maintenance fee is $30 for the Amended (12.5% each for two joint owners) of available under the Amended JNLNY contract value (excluding values Contracts; (ii) the death benefit of the JNLNY Contracts (applicable only when allocated to the Indexed Fixed Option) Amended JNLNY Contracts will be the contract value is less than $50,000). in connection with certain serious greatest of: contract value on the date 28. The withdrawal charges of the medical conditions specified in the that JNL New York receives proof of Amended JNLNY Contracts are as Amended Contract. death and an election of the type of follows:
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WITHDRAWAL CHARGE [As a percentage of premium payments]
Contribution year of premium payment 1 2 3 4 5 6 7 8+
Withdrawal Charge ...... 7 6 5 4 3 2 1 0 Withdrawal Charge if Five-Year Period is elected ...... 6.5 5 3 2 1 0 0 0 Withdrawal Charge if Three-Year Period is elected ...... 6 4 2 0 0 0 0 0
Applicants’ Legal Analysis in the circumstances set forth in the Separate Accounts after the Contract 1. Section 6(c) of the Act authorizes application would not deprive an owner Enhancement(s) is applied. the Commission to exempt any person, of his or her proportionate share of the Accordingly, the asset-based charges security or transaction, or any class or issuer’s current net assets. An Amended applicable to the Separate Accounts will classes of persons, securities or Contract owner’s interest in the amount be assessed against the entire amounts transactions from the provisions of the of the Contract Enhancement allocated held in the Separate Accounts, Act and the rules promulgated to his or her Contract value upon receipt including any Contract Enhancement thereunder if and to the extent that such of a premium payment is not fully amounts. As a result, the aggregate exemption is necessary or appropriate vested until five or seven complete asset-based charges assessed will be in the public interest and consistent years following a premium. Until or higher than those that would be charged with the protection of investors and the unless the amount of any Contract if the Amended Contract owner’s purposes fairly intended by the policy Enhancement is vested, the Insurance Contract value did not include any and provisions of the Act. Applicants Companies retain the right and interest Contract Enhancement. The Insurance request that the Commission pursuant to in the Contract Enhancement amount, Companies nonetheless represent that section 6(c) of the Act grant the although not in the earnings attributable the Amended Contracts’ fees and exemptions requested below with to that amount. Thus, Applicants urge charges, in the aggregate, are reasonable respect to the Amended Contracts and that when the Insurance Companies in relation to service rendered, the any Future Contracts funded by the recapture any Contract Enhancement expenses expected to be incurred, and Separate Accounts or Other Accounts they are simply retrieving their own the risks assumed by the Insurance that are issued by the Insurance assets, and because an Amended Companies. Companies and underwritten or Contract owner’s interest in the Contract 6. Applicants represent that the distributed by the Distributor or Enhancement is not vested, the Contract Enhancement will be attractive Affiliated Broker-Dealers. Applicants Amended Contract owner has not been to and in the interest of investors undertake that Future Contracts funded deprived of a proportionate share of the because it will permit owners to put by the Separate Accounts or Other Separate Account’s assets, i.e., a share of 102%, 103% or 104% of their first-year Accounts, in the future, will be the Separate Account’s assets premium payments to work for them in substantially similar in all material proportionate to the Amended Contract the Investment Divisions and the respects to the Amended Contracts. owner’s contract value. guaranteed accounts. In addition, the Applicants believe that the requested 4. In addition, Applicants state that it owner will retain any earnings exemptions are appropriate in the would be patently unfair to allow an attributable to the Contract public interest and consistent with the Amended Contract owner exercising the Enhancements recaptured, as well as the protection of investors and the purposes free-look privilege to retain the Contract principal of the Contract Enhancement fairly intended by the policy and Enhancement amount under an amount once vested. provisions of the Act. Amended Contract that has been 7. Applicants submit that the 2. Subsection (i) of section 27 of the returned for a refund after a period of provisions for recapture of any Contract Act provides that section 27 does not only a few days. If the Insurance Enhancement under the Amended apply to any registered separate account Companies could not recapture the Contracts do not violate sections funding variable insurance contracts, or Contract Enhancement, Applicants 2(a)(32) and 27(i)(2)(A) of the Act. to the sponsoring insurance company claim that individuals could purchase Applicants assert that the application of and principal underwriter of such an Amended Contract with no intention a Contract Enhancement to premium account, except as provided in of retaining it and simply return it for payments made under the Amended paragraph (2) of the subsection. a quick profit. Furthermore, Applicants Contracts should not raise any questions Paragraph (2) provides that it shall be state that the recapture of the Contract as to compliance by the Insurance unlawful for such a separate account or Enhancement relating to withdrawals or Companies with the provisions of sponsoring insurance company to sell a receiving income payments within the section 27(i). However, to avoid any contract funded by the registered first five or seven years of a premium uncertainty as to full compliance with separate account unless such contract is contribution is designed to protect the the Act, Applicants request an a redeemable security. Section 2(a)(32) Insurance Companies against Amended exemption from section 2(a)(32) and defines ‘‘redeemable security’’ as any Contract owners not holding the 27(i)(2)(A), to the extent deemed security, other than short-term paper, Amended Contract for a sufficient time necessary, to permit the recapture of any under the terms of which the holder, period. According to Applicants, it Contract Enhancement under the upon presentation to the issuer, is would provide the Insurance Companies circumstances described in the entitled to receive approximately his with insufficient time to recover the cost application, without the loss of relief proportionate share of the issuer’s of the Contract Enhancement, to its from section 27 provided by section current net assets, or the cash equivalent financial detriment. 27(i). thereof. 5. Applicants represent that it is not 8. Section 22(c) of the Act authorizes 3. Applicants submit that the administratively feasible to track the the Commission to make rules and recapture of the Contract Enhancement Contract Enhancement amount in the regulations applicable to registered
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investment companies and to principal backward pricing, will not occur as a SECURITIES AND EXCHANGE underwriters of, and dealers in, the result of the recapture of the Contract COMMISSION redeemable securities of any registered Enhancement. Applicants assert that, [Release No. 34–49367; File No. SR–CBOE– investment company to accomplish the because neither of the harms that Rule 2004–14] same purposes as contemplated by 22c–1 was meant to address is found in section 22(a). Rule 22c–1 under the Act the recapture of the Contract Self-Regulatory Organizations; Notice prohibits a registered investment Enhancement, Rule 22c–1 should not of Filing and Immediate Effectiveness company issuing any redeemable apply to any Contract Enhancement. of Proposed Rule Change and security, a person designated in such However, to avoid any uncertainty as to Amendment No. 1 Thereto by the issuer’s prospectus as authorized to full compliance with Rule 22c–1, Chicago Board Options Exchange, Inc. consummate transactions in any such Applicants request an exemption from to Adopt Rules and Procedures security, and a principal underwriter of, the provisions of Rule 22c–1 to the Governing the Execution of Complex or dealer in, such security, from selling, extent deemed necessary to permit them Orders Involving Options and Security redeeming, or repurchasing any such to recapture the Contract Enhancement Futures security except at a price based on the current net asset value of such security under the Amended Contracts. March 5, 2004. which is next computed after receipt of 10. Applicants submit that extending Pursuant to Section 19(b)(1) of the a tender of such security for redemption the requested relief to encompass Future Securities Exchange Act of 1934 (‘‘Act’’ or of an order to purchase or sell such Contracts and Other Accounts is or ‘‘Exchange Act’’),1 and Rule 19b–4 security. appropriate in the public interest thereunder,2 notice is hereby given that 9. It is possible that someone might because it promotes competitiveness in on February 23, 2004, the Chicago Board view the Insurance Companies’ the variable annuity market by Options Exchange, Inc. (‘‘CBOE’’ or recapture of the Contract Enhancements eliminating the need to file redundant ‘‘Exchange’’) filed with the Securities as resulting in the redemption of exemptive applications prior to and Exchange Commission (‘‘SEC’’ or redeemable securities for a price other introducing new variable annuity ‘‘Commission’’) the proposed rule than one based on the current net asset contracts. Investors would receive no change as described in Items I, II, and value of the Separate Accounts. benefit or additional protection by III below, which Items have been Applicants contend, however, that the requiring Applicants to repeatedly seek prepared by the Exchange. On March 4, 2004, CBOE submitted Amendment No. recapture of the Contract Enhancement exemptive relief that would present no 1 to the proposed rule change. The does not violate Rule 22c–1. The issues under the Act not already Commission is publishing this notice to recapture of some or all of the Contract addressed in the application. Enhancement does not involve either of solicit comments on the proposed rule the evils that Rule 22c–1 was intended Applicants further submit, for the change from interested persons. to eliminate or reduce as far as reasons stated herein, that their exemptive request meets the standards I. Self-Regulatory Organization’s reasonably practicable, namely: (i) the Statement of the Terms of Substance of set out in section 6(c) of the Act, dilution of the value of outstanding the Proposed Rule Change redeemable securities of registered namely, that the exemptions requested investment companies through their are necessary or appropriate in the CBOE proposes to adopt rules and sale at a price below net asset value or public interest and consistent with the procedures governing the execution of repurchase at a price above it, and (ii) protection of investors and the purposes complex orders involving options and other unfair results, including fairly intended by the policy and security futures. The text of the speculative trading practices. To effect a provisions of the Act and that, therefore, proposed rule change follows. recapture of a Contract Enhancement, the Commission should grant the Additions are in italics. Deleted text is the Insurance Companies will redeem requested order. in brackets. interests in an Amended Contract For the Commission, by the Division of Chicago Board Options Exchange, owner’s Contract value at a price Investment Management, pursuant to Incorporated Rules determined on the basis of the current delegated authority. * * * * * net asset value of the Separate J. Lynn Taylor, Accounts. The amount recaptured will CHAPTER I—Definitions Assistant Secretary. be less than or equal to the amount of * * * * * the Contract Enhancement that the [FR Doc. 04–5547 Filed 3–10–04; 8:45 am] Insurance Companies paid out of their BILLING CODE 8010–01–P Rule 1.1. Definitions general account assets. Although * * * * * Amended Contract owners will be entitled to retain any investment gains Stock-Option Order attributable to the Contract (ii) A stock-option order is an order to Enhancement and to bear any buy or sell a stated number of units of investment losses attributable to the an underlying or a related security Contract Enhancement, the amount of coupled with either (a) the purchase or such gains or losses will be determined sale of option contract(s) [of the same on the basis of the current net asset series] on the opposite side of the values of the Separate Accounts. Thus, market representing either the same no dilution will occur upon the number of units of the underlying or recapture of the Contract Enhancement. related security or the number of units Applicants also submit that the second of the underlying security necessary to harm that Rule 22c–1 was designed to address, namely, speculative trading 1 15 U.S.C. 78s(b)(1). practices calculated to take advantage of 2 17 CFR 240.19b–4.
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create a delta neutral position or (b) the orders subject to this Rule. Original (offers) of the trading crowd but not over purchase [and] or sale of an equal orders and solicited orders are subject to bids (offers) of public customers in the number of put and call option contracts, the following conditions. limit order book. each having the same exercise price, (a)–(f) No change. (c)–(e) No change. expiration date and each representing * * * * * * * * * * the same number of units of [the underlying or related security] stock as, Rule 6.45. Priority of Bids and Offers— Rule 6.48. Contract Made on and on the opposite side of the market Allocation of Trades Acceptance of Bid or Offer from, [representing in aggregate twice Except as provided by Rules, (a) No change. the number of units of] the underlying including but not limited to Rule 6.2A, (b) Stock-option orders and security or related security portion of the order. 6.8, 6.9, 6.13, 6.45A, Rule 6.47, Rule future-option orders. (i) A bid or offer * * * * * 6.74, Rule 8.87, and CBOE Regulatory that is identified to the Exchange Circulars approved by the SEC trading crowd as part of a stock-option Security Future-Option Order concerning Participation Rights, the order, as defined in Rule 1.1(ii), or a (zz) A security future-option order, following rules of priority shall be security future-option order, as defined which shall be deemed a type of Inter- observed with respect to bids and offers: in Rule 1.1(zz), is made and accepted regulatory Spread Order as that term is (a)–(d) No change. subject to the following conditions: defined in Rule 1.1(ll), is an order to buy (e) Complex Order Priority Exception: (A) At the time the stock-option order or sell a stated number of units of a A member holding a spread, straddle, or security future-option order is security future or a related security combination, or ratio order (or a stock- announced, the member initiating the convertible into a security future option order or security future-option order must disclose to the crowd all legs (‘‘convertible security future’’) coupled order, as defined in Rule 1.1(ii)(b) and of the order and must identify the with either (a) the purchase or sale of Rule 1.1(zz)(b), respectively) and specific market(s) on which and the option contract(s) on the opposite side bidding (offering) on a net debit or price(s) at which the non-option leg(s) of the market representing either the credit basis (in a multiple of the of the order is to be filled, and same number of the underlying for the minimum increment) may execute the (B) Concurrent with the execution of security future or convertible security order with another member without the options leg of the order, the future or the number of units of the giving priority to equivalent bids (offers) initiating member and each member that underlying for the security future or in the trading crowd or in the book agrees to be a contra-party on the non- convertible security future necessary to provided at least one leg of the order option leg(s) of the order must take steps create a delta neutral position or (b) the betters the corresponding bid (offer) in immediately to transmit the non-option purchase or sale of an equal number of the book. Stock-option orders and leg(s) to the identified market(s) for put and call option contracts, each security future-option orders, as defined execution. having the same exercise price, in Rule 1.1(ii)(a) and Rule 1.1(zz)(a), (ii) A trade representing the execution expiration date and each representing respectively, have priority over bids of the options leg of a stock-option order the same number of the underlying for (offers) of the trading crowd but not over or a security future-option order may be the security future or convertible bids (offers) of public customers in the cancelled at the request of any member security future, as and on the opposite limit order book. that is a party to that trade only if side of the market from, the underlying * * * * * market conditions in any of the non- for the security future or convertible Exchange market(s) prevent the security future portion of the order. Rule 6.45A. Priority and Allocation of execution of the non-option leg(s) at the Trades for CBOE Hybrid System * * * * * price(s) agreed upon. Generally: The rules of priority and (c) No change. CHAPTER VI—Doing Business on the order allocation procedures set forth in * * * * * Exchange Floor this rule shall apply only to option Rule 6.74. ‘‘Crossing’’ Orders * * * * * classes designated by the Exchange to be traded on the CBOE Hybrid System. (a)–(e) No change. Rule 6.9. Solicited Transactions (a) No change. * * * * * A member or member organization (b)(i)–(ii) No change. representing an order respecting an (b)(iii) Exception: Complex Order * * * Interpretations and Policies option traded on the Exchange (an Priority: A member holding a spread, .01–.02 No change. ‘‘original order’’), including a spread, straddle, or combination order (or a .03 Spread, straddle, stock-option combination, or straddle order as stock-option order or security future- (as defined in Rule 1.1(ii)), inter- defined in Rule 6.53, [or] a stock-option option order, as defined in Rule regulatory spread as defined in Rule order as defined in Rule 1.1(ii) or a 1.1(ii)(b) and Rule 1.1(zz)(b), 1.1([kk]ll) (including security future- security future-option order as defined respectively) and bidding (offering) on a option orders as defined in Rule 1.1 (zz)) in Rule 1.1(zz), may solicit a member or net debit or credit basis (in a multiple or combination orders on opposite sides member organization or a non-member of the minimum increment) may of the market may be crossed, provided customer or broker-dealer (the ‘‘solicited execute the order with another member that the Floor Broker holding such person’’) to transact in-person or by without giving priority to equivalent orders proceeds in the manner order (a ‘‘solicited order’’) with the bids (offers) in the trading crowd or in described in paragraphs (a) or (b) above original order. In addition, whenever a the electronic book provided at least one as appropriate. Members may not floor broker who is aware of, but does leg of the order betters the prevent a spread, straddle, stock-option, not represent, an original order solicits corresponding bid (offer) in the book. inter-regulatory spread (including a one or more persons or orders in Stock-option orders and security future- security future-option order) or response to an original order, the option orders, as defined in Rule combination cross from being persons solicited and any resulting 1.1(ii)(a) and Rule 1.1(zz)(a), completed by giving a competing bid or orders are solicited persons or solicited respectively, have priority over bids offer for one component of such order.
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.04 [With the exception of inter- ban on the trading of single stock The proposed rule change creates a regulatory spreads, where] Where a futures and futures on narrow-based new definition of security future-option related [transaction] order must be security indices (together, ‘‘security order for a complex order involving effected in another market, the member futures’’) in the United States. This security futures and options that is must take steps to transmit the related proposed rule change addresses based on the proposed definition of order(s) concurrently with the execution complex orders involving options and stock-option order. Therefore, complex of the options leg(s) of the order [the security futures and also revises the orders consisting of security futures and transaction must be effected prior to definition of stock-option order. options legs that fall within the effecting the options transaction]. A Specifically, the proposed rule change proposed definition of security future- trade representing the execution of the (i) amends the definition of stock-option option order will be entitled to the same options leg of a stock-option order or a order, (ii) creates a new definition for a priorities that the proposed definition of security future-option order may be security futures option order (‘‘security stock-option order affords to certain cancelled at the request of any member future-option order’’) based on the complex orders involving stocks and that is a party to that trade only if proposed definition of stock-option options. The Commission approved the market conditions in any of the non- order and grants certain execution definition of a single stock future-option Exchange market(s) prevent the priorities to security future-option order for ISE that the Exchange states is execution of the non-option leg(s) at the orders, (iii) authorizes the execution of substantially similar to its proposed price(s) agreed upon. security future-option orders according definition of a security future-option * * * * * to procedures that are identical to order.6 CBOE’s current execution procedures The proposed rule change amends CHAPTER XXVII—Buy-Write Option for stock-option orders and (iv) CBOE Rules 6.45(e) and 6.45A(b)(iii) to Unitary Derivatives (‘‘BOUNDs’’) incorporates the security future-option permit Exchange members to execute * * * * * order concept into other CBOE rules security future-option orders, the options legs of which will have priority Rule 27.1. Definitions where stock-option orders are addressed. over bids or offers of the trading crowd * * * * * The Exchange’s current definition of but not over bids or offers of public customers in the book. The proposed Security Future-Option Order stock-option order 4 does not provide for the execution of stock-option orders to rules also provide that members holding (m) Security Future-Option Order—A create delta neutral positions. The security future-option orders and security future-option order as used in Exchange states that complex orders bidding or offering on a net debit or respect of a BOUND means an order to that create delta neutral positions are credit basis may execute the order with buy or sell a stated number of units of effective hedging strategies that would another member without giving priority a security future or a related security permit Exchange members to initially to equivalent bids or offers in the convertible into a security future offset the risk of price movements in an trading crowd or the book, provided at (‘‘convertible security future’’) coupled option position with a corresponding least one option leg of the order betters with a transaction in a BOUND contract the corresponding bid or offer in the on the opposite side of the market purchase or sale of stock underlying the option position. The Exchange notes book. The priority rules in the previous representing the same number of two sentences are identical to the underlying units for the security future that the language in the proposed amendment to the definition of stock- current Exchange priority rules or convertible security future. governing stock-option orders. option order mirrors the corresponding The proposed rule change also * * * * * language contained in International amends CBOE Rule 6.48(b) to provide II. Self-Regulatory Organization’s Securities Exchange, Inc. (‘‘ISE’’) Rule 5 execution procedures for security Statement of the Purpose of, and 722—Complex Orders. future-option orders. Proposed CBOE Statutory Basis for, the Proposed Rule Rule 6.48(b) provides that the initiating Change 4 Current CBOE Rule 1.1(ii) defines stock-option order as ‘‘an order to buy or sell a stated number member and the contra-parties with In its filing with the Commission, the of units of an underlying or a related security respect to a security future-option order Exchange included statements coupled with either (a) the purchase or sale of must take steps to transmit the security concerning the purpose of and basis for option contract(s) of the same series on the opposite futures leg to a futures exchange side of the market representing the same number of the proposed rule change and discussed units of the underlying or related security or (b) the concurrent with the execution of the any comments it received on the purchase and sale of an equal number of put and options leg(s) of the order.7 Because proposed rule change. The text of these call option contracts, each having the same exercise security futures products may not be statements may be examined at the price, expiration date and number of units of the fungible between markets, the member places specified in Item IV below. The underlying or related security, on the opposite side of the market representing in aggregate twice the initiating the security future-option Exchange has prepared summaries, set number of units of the underlying or related order must identify the specific market forth in Sections A, B, and C below, of security.’’ of execution. As with stock-option the most significant aspects of such 5 ISE Rule 722(a)(5)(i) defines a stock-option order orders, if the security futures leg of the statements. as ‘‘an order to buy or sell a stated number of units security future-option order cannot be of an underlying stock or a security convertible into A. Self-Regulatory Organization’s the underlying stock (‘‘convertible security’’) 6 Statement of the Purpose of, and coupled with either (A) the purchase or sale of See Securities Exchange Act Release No. 46390 option contract(s) on the opposite side of the market (August 21, 2002), 67 FR 55290 (August 28, 2002) Statutory Basis for, the Proposed Rule representing either the same number of units of the (Order Approving SR–ISE–2002–18). See also Change underlying stock or convertible security or the Securities Exchange Act Release No. 48894 number of units of the underlying stock necessary (December 8, 2003), 68 FR 70328 (December 17, 1. Purpose to create a delta neutral position; or (B) the 2003) (Notice of Filing and Immediate Effectiveness purchase or sale of an equal number of put and call of SR–PCX–2003–42). The Commodity Futures 7 3 option contracts, each having the same exercise The proposed rule change amends Interpretation Modernization Act of 2000 lifted the price, expiration date, and each representing the .04 to CBOE Rule 6.74 to reflect the execution same number of units of stock, as and on the procedures for stock-option orders and security 3 Pub. L. No. 106–554, Appendix E, 114 Stat. opposite side of the market from, the stock or future-option orders provided in proposed CBOE 2763. convertible security portion of the order.’’ Rule 6.48(b).
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executed at the price(s) agreed upon due C. Self-Regulatory Organization’s Commission, and all written to market conditions, a trade Statement on Comments on the communications relating to the representing the execution of the Proposed Rule Change Received from proposed rule change between the options leg of the transaction may be Members, Participants or Others Commission and any person, other than cancelled at the request of any member No written comments were solicited those that may be withheld from the that is a party to that trade. or received with respect to the proposed public in accordance with the CBOE also proposes to amend CBOE rule change. provisions of 5 U.S.C. 552, will be Rule 6.9 to permit member solicitation available for inspection and copying at of a security future-option order, and III. Date of Effectiveness of the the Commission’s Public Reference CBOE Rule 27.1, which would create a Proposed Rule Change and Timing for Room. Copies of such filing will also be new definition of a security future- Commission Action available for inspection and copying at option order with respect to an order The foregoing rule change has become the principal office of the Exchange. All involving a Buy-Write Option Unitary effective pursuant to Section 19(b)(3)(A) submissions should refer to File No. Derivative (‘‘BOUND’’),8 as that term is of the Act 12 and subparagraph (f)(6) of SR–CBOE–2004–14 and should be defined in CBOE Rule 27.1(a).9 The Rule 19b–4 13 thereunder because it submitted by April 1, 2004. proposed rules also make clear in the does not: (i) Significantly affect the For the Commission, by the Division of text of Interpretation .03 to CBOE Rule protection of investors or the public Market Regulation, pursuant to delegated 6.74 that as a type of inter-regulatory interest; (ii) impose any significant authority.15 spread order, a security future-option burden on competition; (iii) become Jill M. Peterson, order may be crossed. A typographical operative for 30 days from the date on Assistant Secretary. error is also fixed in the text of which it was filed, or such shorter time [FR Doc. 04–5550 Filed 3–10–04; 8:45 am] Interpretation .03 to CBOE Rule 6.74. as the Commission may designate; and BILLING CODE 8010–01–P the Exchange has given the Commission 2. Statutory Basis written notice of its intention to file the Since the proposed rule change offers proposed rule change at least five SECURITIES AND EXCHANGE execution priorities for certain orders business days prior to filing. At any COMMISSION that CBOE believes are of a similar time within 60 days of the filing of such [Release No. 34–49357; File No. SR–CHX– degree of complexity to those approved proposed rule change, the Commission 2004–09] by the Commission for special priority may summarily abrogate such rule rules and would offer investors change if it appears to the Commission Self-Regulatory Organizations; Notice additional opportunities to manage risks that such action is necessary or of Filing and Immediate Effectiveness while protecting priority of orders of appropriate in the public interest, for of a Proposed Rule Change and public customers, CBOE believes that the protection of investors, or otherwise Amendment No. 1 Thereto by the the proposed rule change is consistent in furtherance of the purposes of the Chicago Stock Exchange, Inc. Relating with Section 6(b) of the Act 10 in general Act.14 to Membership Dues and Fees and furthers the objectives of Section IV. Solicitation of Comments March 3, 2004. 6(b)(5) 11 in particular in that it should Pursuant to section 19(b)(1) of the promote just and equitable principles of Interested persons are invited to Securities Exchange Act of 1934 trade, serve to remove impediments to submit written data, views, and (‘‘Act’’),1 and Rule 19b–4 thereunder,2 and perfect the mechanism of a free and arguments concerning the foregoing, notice hereby is given that on January open market and a national market including whether the proposed rule 30, 2004, the Chicago Stock Exchange, system, and protect investors and the change is consistent with the Act. Inc. (‘‘CHX’’ or ‘‘Exchange’’) filed with public interest. Persons making written submissions should file six copies thereof with the the Securities and Exchange B. Self-Regulatory Organization’s Secretary, Securities and Exchange Commission (‘‘Commission’’) the Statement on Burden on Competition Commission, 450 Fifth Street, NW., proposed rule change as described in Items I, II and III below, which Items CBOE does not believe that the Washington, DC 20549–0609. Comments should be submitted have been prepared by the Exchange. proposed rule change will impose any On March 2, 2004, the Exchange filed burden on competition that is not electronically at the following e-mail address: [email protected]. All Amendment No. 1 to the proposed rule necessary or appropriate in furtherance change.3 The Commission is publishing of the purposes of the Act. comment letters should refer to File No. SR–CBOE–2004–14. This file number this notice to solicit comments on the should be included on the subject line proposed rule change, as amended, from 8 CBOE Rule 27.1(a) defines a BOUND as ‘‘a interested persons. security issued, or subject to issuance, by The if e-mail is used. To help the Options Clearing Corporation pursuant to the Rules Commission process and review your I. Self-Regulatory Organization’s of The Options Clearing Corporation which gives comments more efficiently, comments Statement of the Terms of Substance of holders and writers thereof such rights and should be sent in hard copy or by e-mail obligations as may be provided for in the Rules of the Proposed Rule Change but not by both methods. Copies of the the Options Clearing Corporation.’’ The Exchange proposes to amend its 9 submission, all subsequent The proposed definition of security future- membership dues and fees schedule (the option order with respect to a BOUND is based on amendments, all written statements the definition of stock-option order with respect to with respect to the proposed rule a BOUND. CBOE Rule 27.1(l) defines stock-option 15 17 CFR 200.30–3(a)(12). order with respect to a BOUND as ‘‘an order to buy change that are filed with the 1 15 U.S.C. 78s(b)(1). or sell a stated number of units of an underlying 2 17 CFR 240.19b–4. or a related security coupled with a transaction in 12 15 U.S.C. 78s(b)(3)(A). 3 See letter from Ellen Neely, Senior Vice a BOUND contract on the opposite side of the 13 17 CFR 240.19b–4(f)(6). President & General Counsel, CHX, to Nancy J. market representing the same number of units of the 14 For purposes of calculating the 60-day Sanow, Assistant Director, Division of Market underlying or a related security.’’ abrogation date, the Commission considers the 60- Regulation (‘‘Division’’), Commission, dated March 10 15 U.S.C. 78f(b). day period to have commenced on March 4, 2004, 1, 2004 (‘‘Amendment No. 1’’). Amendment No. 1 11 15 U.S.C. 78f(b)(5). the date CBOE filed Amendment No. 1. replaces the proposed rule change in its entirety.
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‘‘Fee Schedule’’), effective February 1, connectivity; (4) confirm the extend the existing processing fee to 2004, to: (1) Reduce the fixed fees for elimination of the Exchange’s marketing both listed and OTC securities; and (8) specialists trading both listed and fee and establish an increase in the make non-substantive changes to the Nasdaq/NM securities; (2) reduce the transaction fees charged to CHX market organization of the text. fixed fee paid by dedicated odd-lot makers; (5) increase, from $10,000 to Below is the text of the proposed rule dealers and establish a credit for odd-lot $12,500, the monthly maximum change. Proposed new language is dealers that send round-lot orders to the transaction fee charge for MAX orders italicized; proposed deletions are in Exchange for execution; (3) eliminate sent to CHX specialists; (6) increase, the charges currently re-billed to the from $1,000 per year to $3,000 per year, [brackets]. Exchange’s floor brokers for NYFIX the current MAX access charge; (7) * * * * * MEMBERSHIP DUES AND FEES
A. Membership Dues and Transfer Fees No change to text. B. Self-Regulatory Organization Fee [1] $100 per member and member organization per month. This fee shall not be applicable to memberships to which a nominee has not been assigned and which are not other- wise being used. C. Registration Fees No change to text. D. Specialist Assignment Fees No change to text. E. Specialist Fixed Fees Except in the case of Exemption Eligible Securities (as defined above in Section D), which shall be exempt from as- sessment of fixed fees, specialists will be assigned a fixed fee per assigned stock on a monthly basis, to be cal- culated as follows: Fixed Fee Per Dual Trading System Security = $[500,000] 450,000 × Percent of Fixed Costs Per Tier × (CTA Trade Volume Per Security/CTA Trade Volume Per Tier). (Effective February 1, 2004 [August 1, 2002]). Fixed Fee For Specialist Firms Trading Nasdaq/NMS se- The monthly fixed fee charged each member firm for the curities = month of December 2003, less each firm’s pro rata share of $39,750. A specialist firm’s pro rata share shall be based on the firm’s percentage participation in the total fixed fees charged in December 2003. (Effective February 1, 2004). The monthly fixed fee will be further reduced to $0, in each month of 2004, if the Exchange’s overall share volume in Nasdaq/NM Securities meets the following targets: 1st Quarter: 40 million average daily shares; 2nd Quarter: 50 million average daily shares; 3rd Quarter: 65 million average daily shares; 4th Quarter: 80 million average daily shares. [The lowest monthly fixed fee charged each member firm for the period from January through June 2002, less the mar- ket data rebate earned by the firm in June, 2002.] [Each specialist firm shall be charged a Fixed Fee Charge equal to that specialist firm’s pro rata share of an addi- tional $10,000 monthly fee. A specialist firm’s pro rata share shall be based on the firm’s percentage participation in the total market data rebates paid to specialist firms trading Nasdaq/NMS Securities in June 2002.] Fixed Fee Per Dedicated Odd-Lot Dealer $200,000 [$250,000]/year, billed on a monthly basis (Effec- tive February 1, 2004 [January 1, 2001])
******* F. Transaction and Order Processing Fees 1. SEC Transaction Fees No change to text. 2. NASD Fees on Cleared Transactions No change to text. 3. Order Processing Fees No change to text. 4. Transaction Fees a. No change to text. b. No change to text. c. No change to text. d. Executions by market makers [Reserved for future $.0050 per share (up to a maximum of $100 per side), sub- use.] ject to the fee reduction described in (i), below and the fee cap described in (j) below. (Effective February 1, 2004)
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MEMBERSHIP DUES AND FEES—Continued
e. In Nasdaq/NM securities, agency executions exe- $.0025 per share (up to a maximum of $100 per side), sub- cuted through a floor broker [and market maker ject to the fee reduction described in (i), below and the fee executions]. cap described in (j) below. f. In Dual Trading System issues, agency executions $.0035 per share (up to a maximum of $100 per side), sub- executed through a floor broker [and market ject to the fee reduction described in (i), below and. the maker executions]. fee cap described in (j) below. g. No change to text. h. The monthly maximum for transaction fees for orders sent via MAX, except agency orders executed through floor brokers, is [$10,000] $12,500 or, if less, $.40 per 100 average monthly gross round lot shares. (Effective February 1, 2004) i. Effective August 1, 2003, the per-share fees described in (d), (e) and (f) above will be reduced on shares traded above a total monthly charge of $150,000 (within each section) as follows:
******* j. The transaction fees set forth in Sections F.4(d), (e) and (f) shall be subject to the following monthly maximums:
******* k. No change to text. 5. Floor Broker as Principal Fees No change to text. [6. Marketing Fees] [(a) A marketing fee of $.01 per share shall be assessed for each Subject Transaction in a Subject Issue occurring on or before December 31, 2003; provided, however, that a specialist who trades a Subject Issue may elect to de- cline imposition of the marketing fee.] [‘‘Subject Issue’’ shall mean any issue which constitutes an exchange-traded fund and meets the following two cri- teria: (a) Average daily share volume in the issue exceeds 150,000 shares each month during a consecutive two month period; and (b) market maker share participation in the same issue exceeds 1% for each month during the same two-month period.] [‘‘Subject Transaction’’ shall mean (a) any trade with a customer, whether the contra party is a specialist or a mar- ket maker, where the order is delivered to the Exchange via the MAX system or where compensation is paid to induce the routing of the order to the Exchange; or (b) any trade between a specialist and a market maker in which the market maker is exercising rights under the market maker entitlement rules, in which case the mar- keting fee shall be assessed against the market maker only.] [(b) The marketing fee assessed and collected by the Exchange shall be remitted to the specialist trading the Sub- ject Issue. To the extent that all marketing fees collected during a three-month period are not expended by the specialist during such period, the Exchange shall refund any remaining marketing fees to the payors pro rata in proportion to the marketing fees paid by such payors; provided, however, that the Exchange shall not be obli- gated to refund amounts of $1000 or less.] G. Space Charges No change to text. H. Equipment, Information Services and Technology Charges
******* [NYFIX Network and Connection Charges] [All NYFIX charges above $15,000 per month will be re- billed monthly to member firms that access the NYFIX network, based on the proportion of each firm’s use of the network during the month.]
******* MAX Access Charge $[1,000]3,000 per access point, allocated pro rata among the firms that gain access to the Exchange’s MAX system through that access point. (Effective February 1, 2004) OTC Access and Connection Charges No change to text.
******* I. Clearing Support Fees (minimum clearing support fee is $600 per month) 1. Account Fee No change to text. 2. CUSIP Fees Specialist OTC CUSIP Fee $50 per OTC CUSIP per month Market Maker CUSIP Fee $10 per CUSIP per month Odd-Lot Dealer CUSIP Fee[2] $2.50 per CUSIP per month Floor Broker as Principal $2 per CUSIP per month The above Specialist OTC CUSIP Fee will be subject to the following discounts: If between 20 and 200 trades occur in a particular CUSIP in a given month, the Specialist OTC CUSIP Fee for that CUSIP shall be $40 for that month.
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MEMBERSHIP DUES AND FEES—Continued If less than 20 trades occur in a particular CUSIP in a given month, the Specialist OTC CUSIP Fee for that CUSIP shall be $20 for that month. The Odd Lot Dealer CUSIP fee does not apply to any issue in which the odd-lot dealer is also the specialist for the issue. 3. Processing Fees Transactions [in OTC securities] that are executed $.0015/share, up to $100 per side. by floor brokers in securities that are not listed or traded UTP on the Exchange [assessed a Spe- cialist OTC CUSIP Fee] but are processed by the Exchange’s clearing systems. J. Listing Fees No change to text. K. Market Regulation and Market Surveillance Fees No change to text. L. Supplies and Reports No change to text. M. Credits
******* 4. Credits for Dedicated Odd-Lot Dealers Total monthly fees owed by a Dedicated Odd-Lot Dealer will be reduced (and these odd-lot dealers will be paid each month for any unused credits) by a credit of $.08 per round-lot trade sent by the Dedicated Odd-Lot Dealer to Exchange specialists for execution. [1 This fee shall not be applicable to memberships to which a nominee has not been assigned and which are not otherwise being used.] [2 The Odd Lot Dealer CUSIP fee does not apply to any issue in which the odd-lot dealer is also the specialist for the issue.]
* * * * * Nasdaq/NM securities,5 with an Exchange also proposes a $50,000 opportunity for the fee to be reduced to II. Self-Regulatory Organization’s reduction in the annual dedicated odd- $0 for each month if the Exchange’s Statement of the Purpose of, and lot dealer fee and a corresponding credit overall share volume in Nasdaq/NM Statutory Basis for, the Proposed Rule of $.08 per round-lot trade for orders securities reaches specific targets.6 The Change that these odd-lot dealers send to Exchange specialists for execution. In its filing with the Commission, the 5 Under the proposed schedule, the fixed fee for Finally, the Exchange proposes to Exchange included statements specialists trading Nasdaq/NM securities is based eliminate the current re-billing, to floor concerning the purpose of, and basis for, on the fixed fee charged for the month of December the proposed rule change and discussed 2003. This fixed fee used to be based on the lowest brokers, of certain charges relating to the fixed fee charged for the period from January use of the NYFIX network. According to any comments it received on the through June 2002, less the market data rebate proposed rule change. The text of these earned by the firm in June 2002. Prior to July 2002, the Exchange, these fee reductions and statements may be examined at the the fixed fee for specialists trading Nasdaq/NM credits are designed to allow the securities was calculated much as the fixed fee is Exchange to continue to remain places specified in Item IV below. The currently calculated for specialists trading listed Exchange has prepared summaries, set securities—the total fixed fee was divided among competitive in its efforts to provide an forth in Sections A, B and C below, of specialist firms based on how active their assigned efficient floor-based venue for its the most significant aspects of such stocks were in the market as a whole. The Exchange members to act as specialists, floor and its OTC specialist firms believed that it was brokers and odd-lot dealers. statements. appropriate, in July 2002, to move to a constant A. Self-Regulatory Organization’s fixed fee for OTC specialist firms and is simply Another proposed change to the Fee continuing that notion under the proposed fee Schedule confirms the elimination of Statement of the Purpose of, and schedule, with updated text. See Securities Statutory Basis for, the Proposed Rule Exchange Act Release No. 46491 (September 11, the Exchange’s marketing fee and an Change 2002), 67 FR 58831 (September 18, 2002). increase, from $.0035 per share to 6 Under the proposal, the monthly fixed fee $.0050 per share, of the transaction fees 1. Purpose would be reduced to $0 for all specialists trading Nasdaq/NM securities for each month if the charged to the Exchange’s market 7 The Exchange proposes to amend its Exchange’s overall share volume in those securities makers. The Exchange first imposed a Fee Schedule, effective February 1, reaches the following targets: 40 million average marketing fee in 2001, to ensure that all 2004. These fee changes would be part daily shares (in the first quarter of 2004); 50 million members that trade particular securities of the CHX’s 2004 budget. The Exchange average daily shares (in the second quarter of 2004); 65 million average daily shares (in the third quarter share, with CHX specialist firms, the proposes to reduce the fees charged to of 2004); and 80 million average daily are shares (in the Exchange’s specialists, floor brokers the fourth quarter of 2004). See Fee Schedule, maintain their assignments in Nasdaq/NM and odd-lot dealers.4 Specifically, the Section E. The Exchange believes that it is securities, because trades in these securities can Exchange seeks to reduce the total fixed appropriate to base a specialist reduction in this currently be executed on the Exchange only if the fixed fee on the total number of shares traded in securities are assigned to a specialist. The Exchange fee charged specialists trading listed Nasdaq/NM securities on the Exchange, whether securities by $50,000 per month, and believes it is important to provide these awards and the shares are executed by a specialist or floor incentives to specialists to ensure the viability of its also proposes a reduction of broker, for two primary reasons: (1) To reward the OTC program, which the Exchange has seen some specialists assigned to these securities, who approximately $40,000 in the monthly recent declines in trading volume. typically participate in the execution of a majority fixed fee charged to specialists trading of the trades and shares executed on the Exchange 7 These transaction fees are subject to a maximum in Nasdaq/NM securities (e.g., 78.3% of the shares of $100 per side and are subject to other reductions 4 See CHX Fee Schedule, Section E and Section executed in these securities in 2003); and (2) to and caps set out in the Exchange’s Fee Schedule. H. create an incentive for specialists to continue to See Fee Schedule, Section F.(4)(d).
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costs associated with attracting order are designed to ensure that the C. Self-Regulatory Organization’s flow to the Exchange, as well as the Exchange’s costs of providing systems Statement on Comments Regarding the license fees assessed by the owners of and services are appropriately allocated Proposed Rule Change Received from trademarks associated with certain among its members. For example, by Members, Participants or Others 8 exchange-traded funds (‘‘ETFs’’). increasing the monthly transaction fee No written comments were either Because the Exchange now believes that cap on orders sent through the solicited or received with respect to the this fee is no longer necessary to help Exchange’s MAX system to specialists proposed rule change, as amended. specialists attract order flow to the and increasing the MAX system access Exchange, and because the Exchange III. Date of Effectiveness of the charge—fees that are paid by the Proposed Rule Change and Timing for has now taken on the responsibility for Exchange’s order-sending firms—the paying any ETF license fees, the Commission Action Exchange can ensure that its order- Exchange allowed the marketing fee to sending firms pay an appropriate, but The foregoing proposed rule change, expire on December 31, 2003, and now still competitive, level of fees to help as amended, has become effective proposes to delete that provision from pursuant to section 19(b)(3)(A)(ii) 15 of cover the costs associated with their the Fee Schedule. At the same time, the the Act, and Rule 19b–4(f)(2) 16 Exchange believes that it is appropriate transactions on the Exchange (or thereunder, because it establishes or to increase the transaction fees charged associated with their access to the changes a due, fee or other charge 11 to the Exchange’s market makers to help Exchange). The Exchange also imposed by the Exchange. At any time the Exchange defray the costs associated believes that by extending the within 60 days of the filing of such rule with its market maker-related regulatory Exchange’s processing fees to listed change, the Commission may summarily activities and the costs associated with securities, the CHX ensures that these abrogate such proposed rule change if it any license fees that the Exchange is transactions are assessed an appropriate appears to the Commission that such now responsible for paying.9 fee to help cover the costs associated action is necessary or appropriate in the The CHX also proposes to make with the back-office work provided by public interest, for the protection of changes to the Exchange’s Fee Schedule the Exchange.12 investors, or otherwise in furtherance of to increase, from $10,000 to $12,500, the the purposes of the Act.17 monthly transaction fee cap on the 2. Statutory Basis IV. Solicitation of Comments execution of orders sent through the The Exchange believes that the Interested persons are invited to Exchange’s MAX system to specialists; proposed rule change, as amended, is increase, from $1,000 to $3,000, the submit written data, views and consistent with the provisions of section annual MAX access charge assessed to arguments concerning the foregoing, 6(b) of the Act,13 in general, and section firms that gain access to the Exchange’s including whether the proposal, as 6(b)(4) of the Act,14 in particular, in that MAX system; and extend, to listed amended, is consistent with the Act. securities, the Exchange’s processing it provides for the equitable allocation Persons making written submissions fees that are currently charged only for of reasonable dues, fees and other should file six copies thereof with the transactions executed by floor brokers in charges among its members. Secretary, Securities and Exchange Commission, 450 Fifth Street NW., Nasdaq/NM securities that are not B. Self-Regulatory Organization’s 10 Washington, DC 20549–0609. traded on the Exchange’s floor. The Statement of Burden on Competition Exchange believes that these fee changes Comments may also be submitted The Exchange does not believe that electronically at the following e-mail 8 See Securities Exchange Act Release No. 44646 the proposed rule change, as amended, address: [email protected]. All (August 2, 2001), 66 FR 41641 (August 8, 2001) will impose any burden on competition. comment letters should refer to File No. (announcing immediate effectiveness of the new SR–CHX–2004–09. The file number marketing fee provision to the CHX Fee Schedule, should be included on the subject line through December 31, 2001). if e-mail is used. To help the 9 With respect to the Exchange’s costs associated 11 Specifically, the Exchange believes that these with market maker surveillance and licenses fees, fees help defray the costs, among other things, of Commission process and review your market makers, on the CHX, primarily trade for maintaining and upgrading the Exchange’s MAX comments more efficiently, comments their own proprietary accounts. According to the system. This system, and other, interrelated should be sent in hardcopy or by e-mail Exchange, market makers are required to effect functionalities, are used to handle orders sent to the transactions so that they constitute a course of but not by both methods. Copies of the dealings reasonably calculated to contribute to the Exchange. Among other things, they record the submission, all subsequent maintence of a fair and orderly market, and must receipt of orders, route those orders to specialists amendments, all written statements make a market when requested by a floor broker, (or where selected by the order-sending firm, to a with respect to the proposed rule but have a few other affirmative obligations to floor broker representative) for handling and, for change that are filed with the contribute to the Exchange’s market. See CHX eligible orders, provide automatic executions. Commission, and all written Article XXXIV. The Exchange conducts surveillance 12 According to the Exchange, the transactions of market maker trading activity, reviewing, among that are assessed this clearing processing fee are communications relating to the other things, compliance with the short sale rule’s transactions in securities that are not listed or proposed rule change, as amended, tick test and marking requirements. When the between the Commission and any Exchange is the designated examining authority for traded pursuant to unlisted trading privileges on a firm with a market maker account, it also the Exchange. If one of the Exchange’s members, person, other than those that may be conducts periodic examinations to assess who is also a member of another Exchange or withheld from the public in accordance compliance with other Commission and CHX rules. Nasdaq, effects a trade on that other market, the with the provisions of 5 U.S.C. 552, will According to the Exchange, to the extent that these member can report the trade to the other Exchange be available for inspection and copying firms operate from the CHX trading floor, they do or Nasdaq (without sending it to clearing) and then in the Commission’s Public Reference not currently pay any market regulation or market enter the transaction into the Exchange’s back-office surveillance fees associated with those routine clearing systems to ensure that that transaction is 15 examinations. See Fee Schedule, Section K, included in the Exchange’s clearing report. 15 U.S.C. 78s(b)(3)(A)(ii). including footnote 3. 16 Information about that transaction then appears in 17 CFR 240.19b–4(f)(2). 10 According to the Exchange, the proposed rule 17 the reports prepared by the Exchange for member See 15 U.S.C. 78s(b)(3)(C). For purposes of change to Sections B. and I.(2) of the Fee Schedule calculating the 60-day abrogation period, the firm use. move text from footnotes to the primary text of each Commission considers the period to commence section to ensure that the information is more 13 15 U.S.C. 78(f)(b). March 2, 2004 the date the CHX filed Amendment understandable. 14 15 U.S.C. 78f(b)(4). No. 1.
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Room. Copies of such filing will also be summaries, set forth in sections (A), (B), III. Date of Effectiveness of the available for inspection and copying at and (C) below, of the most significant Proposed Rule Change and Timing for the principal office of the Exchange. All aspects of these statements.2 Commission Action submissions should refer to the File No. (A) Self-Regulatory Organization’s The foregoing rule change relating to SR–CHX–2004–09 and should be the deleted fine has become effective submitted by April 1, 2004. Statement of the Purpose of, and Statutory Basis for, the Proposed Rule upon filing pursuant to Section 5 For the Commission, by the Division of Change 19(b)(3)(A)(ii) of the Act and Rule 19b– Market Regulation, pursuant to delegated 4(f)(2) 6 thereunder because the authority.18 Late Trade Data Submission Fine proposed rule establishes or changes a Jill M. Peterson, Deletion due, fee, or other charge. The foregoing Assistant Secretary. rule change relating to the amended [FR Doc. 04–5549 Filed 3–10–04; 8:45 am] On November 14, 2001, the clearing fund rule has become effective BILLING CODE 8010–01–P Government Securities Clearing upon filing pursuant to Section Corporation (‘‘GSCC’’), FICC’s 19(b)(3)(A)(iii) of the Act 7 and Rule predecessor, received Commission 19b–4(f)(4) 8 thereunder because the SECURITIES AND EXCHANGE approval to fine members for submitting proposed rule change effects a change in COMMISSION trade data after GSCC’s 8:00 p.m. (New an existing service of FICC that (i) does York time) trade data submission not adversely affect the safeguarding of [Release No. 34–49363; File No. SR–FICC– 3 2004–03] deadline. The fine schedule was securities or funds in the custody or originally drafted and approved when control of FICC or for which it is Self-Regulatory Organizations; Fixed many members were still submitting responsible and (ii) does not Income Clearing Corporation; Notice of trade data in single batches at the end significantly affect the respective rights Filing and Immediate Effectiveness of of the business day. GSCC did not or obligations of FICC or its members Proposed Rule Change Deleting the implement the fine schedule because at using the service. At any time within Government Securities Division’s Late the time of approval a majority of its sixty days of the filing of such rule Trade Data Submission Fine and members had begun submitting trade change, the Commission may summarily Amending the Government Securities data in real-time. The fine schedule is abrogate such rule change if it appears Division’s Clearing Fund Rule no longer necessary, and FICC desires to to the Commission that such action is delete it from GSD’s rules. necessary or appropriate in the public March 4, 2004. interest, for the protection of investors, Pursuant to Section 19(b)(1) of the Clearing Fund Rule Amendment or otherwise in furtherance of the Securities Exchange Act of 1934 purposes of the Act. (‘‘Act’’),1 notice is hereby given that on On July 21, 2003, FICC received February 19, 2004, the Fixed Income Commission approval to reduce the IV. Solicitation of Comments Clearing Corporation (‘‘FICC’’) filed permitted use of letters of credit from 70 Interested persons are invited to with the Securities and Exchange percent to 25 percent of a GSD submit written data, views, and Commission (‘‘Commission’’) the member’s required clearing fund arguments concerning the foregoing, proposed rule change described in Items deposit.4 The reference to ‘‘70’’ percent including whether the proposed rule I, II, and III below, which items have in Rule 4, Section 4 was amended in the change is consistent with the Act. been prepared primarily by FICC. The approved filing, and FICC is seeking to Persons making written submissions Commission is publishing this notice to amend the other reference to ‘‘70’’ should file six copies thereof with the solicit comments on the proposed rule percent in Rule 4, Section 10 that was Secretary, Securities and Exchange change from interested parties. inadvertently overlooked. Commission, 450 Fifth Street, NW., Washington, DC 20549–0609. I. Self-Regulatory Organization’s (B) Self-Regulatory Organization’s Comments may also be submitted Statement of the Terms of Substance of Statement on Burden on Competition electronically at the following e-mail the Proposed Rule Change FICC does not believe that the address: [email protected]. All The purpose of the proposed rule proposed rule change will have any comment letters should refer to File No. change is to (i) delete the Late Trade impact or impose any burden on SR–FICC–2004–03. This file number Data Submission Fine from the rules of competition. should be included on the subject line the Government Securities Division if e-mail is used. To help the (‘‘GSD’’) and (ii) amend GSD’s clearing (C) Self-Regulatory Organization’s Commission process and review your fund rule. Statement on Comments on the comments more efficiently, comments Proposed Rule Change Received from II. Self-Regulatory Organization’s should be sent in either hardcopy or by Members, Participants, or Others Statement of the Purpose of, and e-mail but not by both methods. Copies of the submission, all subsequent Statutory Basis for, the Proposed Rule Written comments relating to the Change amendments, all written statements proposed rule change have not yet been with respect to the proposed rule In its filing with the Commission, solicited or received. FICC will notify change that are filed with the FICC included statements concerning the Commission of any written Commission, and all written the purpose of and basis for the comments received by FICC. communications relating to the proposed rule change and discussed any proposed rule change between the comments it received on the proposed 2 The Commission has modified the text of the Commission and any person, other than rule change. The text of these statements summaries prepared by FICC. those that may be withheld from the may be examined at the places specified 3 Securities Exchange Act Release No. 45053 (November 14, 2001), 66 FR 58771 [File No. SR– in Item IV below. FICC has prepared GSCC–00–09]. 5 15 U.S.C. 78s(b)(3)(A)(ii). 4 Securities Exchange Act Release No. 48200 (July 6 17 CFR 240.19b–4(f)(2). 18 17 CFR.200.30–3(a)(12). 21, 2003), 68 FR 44130 [File No. SR–GSCC–2002– 7 15 U.S.C. 78s(b)(3)(A)(iii). 1 15 U.S.C. 78s(b)(1). 11]. 8 17 CFR 240.19b–4(f)(4).
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public in accordance with the consultants. The text of the proposed disclosures relate to the consultant’s provisions of 5 U.S.C. 552, will be rule change is set forth below. compensation arrangement, dollar available for inspection and copying in * * * * * amounts paid to the consultant in the Commission’s Public Reference connection with specific municipal Section, 450 Fifth Street, NW., Questions and Answers: Rule G–37 securities business, and the total dollar Washington, DC 20549–0609. Copies of 1. amount paid to the consultant during such filing also will be available for Q. Are dealers required to identify the the reporting period. inspection and copying at the principal type of contributor (i.e. dealer, dealer Dealers should describe their office of FICC and on FICC’s Web site controlled PAC, MFP, MFP controlled consultants’ ‘‘compensation at http://www.ficc.com/gov/ PAC, or non-MFP executive officer) arrangements’’ clearly and with as much gov.docs.jsp?NS-query=. All when completing Form G–37/G–38? specificity as possible. The arrangement submissions should refer to File No. A. Yes. Rule G–37 (e)(i)(2) requires should correlate with the information SR–FICC–2004–03 and should be dealers to report to the Board on its reported on the form concerning the submitted by April 1, 2004. Form G–37/G–38 the contribution or ‘‘total dollar amount paid’’ to the payment amount made and the consultant during the reporting period. For the Commission, by the Division of Market Regulation, pursuant to delegated contributor category of each of the It is not sufficient to disclose a authority.9 following persons and entities making compensation arrangement in vague or generalized terms, such as ‘‘a monthly J. Lynn Taylor, such contributions or payments during each calendar quarter: the broker, dealer retainer not related to any specific Assistant Secretary. or municipal securities dealer; each transaction,’’ ‘‘a percentage of net [FR Doc. 04–5552 Filed 3–10–04; 8:45 am] municipal finance professional; each revenues received for transactions with BILLING CODE 8010–01–P non-MFP executive officer; and each xyz issuer,’’ or ‘‘a percentage of political action committee controlled by management fees and takedown from the broker, dealer or municipal specified transactions.’’ Dealers must SECURITIES AND EXCHANGE securities dealer or by any municipal report information on their consultants’ COMMISSION finance professional. It is not sufficient compensation arrangements with [Release No. 34–49368; File No. SR–MSRB– to list contributors as ‘‘employee’’ or specificity, for example, by providing 2004–01] ‘‘registered representative.’’ For each the dollar amount of the monthly contribution listed on the Form G–37/ retainer or the numeric formulations Self-Regulatory Organizations; Notice G–38, one of the specified contributor used to calculate compensation. Dealers of Filing and Immediate Effectiveness categories must be identified. should also provide the dollar amount of Proposed Rule Change by the 2. or numeric formulations used to Municipal Securities Rulemaking Q. How should contributions to calculate success fees, discretionary Board Relating to Interpretation of officials of issuers who are seeking bonuses, and similar payments made or Rules G–37, on Political Contributions federal office be reported on Form G– to be made to consultants. For example, and Prohibitions on Municipal 37/G–38? it is not sufficient to report that a Securities Business, and G–38, on A. Under Rule G–37, contributions discretionary bonus or success fee will Consultants given to officials of issuers who are be ‘‘equal to a percentage of the net seeking election to federal office, such investment banking fees received on March 5, 2004. as the U.S. House of Representatives, certain transactions.’’ Rather, the dealer Pursuant to Section 19(b)(1) of the Senate or the Presidency, must be should disclose the fee or payment as a Securities Exchange Act of 1934 reported on the dealer’s quarterly Form specific (numeric) percentage of profits. (‘‘Act’’),1 and Rule 19b–4 thereunder,2 G–37/G–38 unless they meet the de Dealers also are required to disclose notice is hereby given that on February minimis exception. When reporting on Form G–37/G–38 information 25, 2004, the Municipal Securities these contributions, dealers must report relating to ‘‘municipal securities Rulemaking Board (‘‘MSRB’’ or information identifying the issuer business obtained or retained’’ by the ‘‘Board’’) filed with the Securities and official. Firms may additionally report consultant. This section of the form Exchange Commission (‘‘Commission’’ information identifying the federal requires the dealer to list each item of or ‘‘SEC’’) the proposed rule change as office sought. For example, if a sitting business separately and, if applicable, to described in Items I, II, and III below, Governor of a state were running for a indicate the dollar amount paid to the which Items have been prepared by the seat in the U.S. House of consultant in connection with each item MSRB. The Commission is publishing Representatives, and the Governor is an of municipal securities business listed. this notice to solicit comments on the ‘‘official of an issuer,’’ the form must list Dealers are reminded to list the relevant proposed rule change from interested the state where the official is serving as municipal securities business obtained persons. Governor, and the Governor’s complete or retained in this section of Form G– name and title. Dealers may also report 37/G–38 even if payments were not paid I. Self-Regulatory Organization’s to the consultant in connection with the Statement of the Terms of Substance of the federal office sought by the issuer official. listed municipal securities business the Proposed Rule Change during that quarter. The MSRB has filed with the SEC a Questions and Answers: Rule G–38 Finally, dealers are required to proposed rule change consisting of a 1. disclose on Form G–37/G–38 notice of interpretation concerning Q: Pursuant to Rule G–38, what information relating to ‘‘total dollar Rules G–37, on political contributions information is a dealer required to amounts paid to the consultant during and prohibitions on municipal disclose regarding money paid to its the reporting period.’’ The dealer must securities business, and G–38, on consultants? report the cumulative total of all A: Rule G–38 requires that dealers payments made to its consultant during 9 17 CFR 200.30–3(a)(12). disclose information relating to money the particular quarter. Such payments 1 15 U.S.C. 78s(b)(1). paid to consultants in three separate include compensation paid for that 2 17 CFR 240.19b–4. areas on Form G–37/G–38. These quarter (including reimbursed expenses)
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and the total dollar amounts paid, if compensation or other payment from change reminds dealers that Rule G–37 any, in connection with particular the dealer, and even if the consultant requires identification of the contributor municipal securities business (including did not undertake any affirmative efforts category when listing contributions and discretionary bonuses, success fees or on behalf of the dealer to obtain or clarifies how to correctly identify to similar payments). The dealer also retain municipal securities business. whom the contribution is made when should report any payments made to its 4. contributing to issuer officials running consultant even if such payments were Q: Under the section of Form G–37/ for Federal office. not made in connection with a G–38 entitled ‘‘Role to be Performed by With respect to Rule G–38, the MSRB particular item of municipal securities Consultant,’’ is a dealer required to list believes that dealers should be business. the geographic area or areas where the describing their consultants’ For additional guidance in this area, consultant is working on the dealer’s compensation arrangements and other please review Q&A number 2 (dated behalf? payments in clear and unequivocal November 18, 1996) in the MSRB Rule A: Yes, the dealer must specifically terms, with as much specificity as Book following Rule G–38; this Q&A list each state or geographic area where possible; providing vague or generalized can also be found on the MSRB’s Web the consultant is working on behalf of descriptions is not sufficient and does site at http://www.msrb.org/msrb1/ the dealer. For additional guidance in not provide any means to ascertain the rules/notg38.htm. this area, please review Q&A number 1 dollar amounts paid to consultants. 2. (dated November 18, 1996) in the MSRB Dealers must provide specific dollar Q: If a consultant obtains municipal Rule Book following Rule G–38; this amounts or the specific percentage of securities business in one quarter, and Q&A can also be found on the MSRB’s formulations used to calculate success the dealer pays the consultant in Web site at http://www.msrb.org/msrb1/ fees, discretionary bonuses, and similar connection with that business during a rules/notg38.htm. payments made or to be made to subsequent quarter, how should the * * * * * consultants. In addition, Rule G–38 dealer disclose this information on its requires that dealers disclose the state or Form G–37/G–38? II. Self-Regulatory Organization’s geographic area where the consultant is A: The dealer should disclose on its Statement of the Purpose of, and working on behalf of the dealer. The Form G–37/G–38 in the ‘‘municipal Statutory Basis for, the Proposed Rule proposed rule change clarifies dealers’ securities business obtained or Change disclosure obligations concerning, retained’’ section the municipal In its filing with the Commission, the among other things, compensation securities business obtained or retained MSRB included statements concerning arrangements with consultants, by its consultant during the relevant the purpose of and basis for the payments made to consultants that are quarter whether or not payments proposed rule change and discussed any connected to specific municipal connected with that business were made comments it received on the proposed securities business, total quarterly during that quarter. If the dealer rule change. The text of these statements payments made to consultants, and subsequently makes a payment to the may be examined at the places specified specific geographic areas where a consultant in connection with that in Item IV below. The MSRB has consultant is working on behalf of a particular business, the dealer should prepared summaries, set forth in dealer. disclose that payment in the ‘‘municipal Sections A, B, and C below, of the most securities business obtained or significant aspects of such statements. 2. Statutory Basis retained’’ section for the quarter in The MSRB has adopted the proposed which such payment was made and A. Self-Regulatory Organization’s rule change pursuant to Section should indicate in this section that the Statement of the Purpose of, and 15B(b)(2)(C) of the Act,3 which business was previously disclosed and Statutory Basis for, the Proposed Rule authorizes the MSRB to adopt rules that the quarter for which it was disclosed Change shall: (e.g., second quarter 2003). For 1. Purpose additional guidance, please review Q&A be designed to prevent fraudulent and number 14 (dated February 28, 1996) in In reviewing the Forms G–37/G–38 manipulative acts and practices, to promote just and equitable principles of trade, to the MSRB Rule Book following Rule G– submitted by brokers, dealers and municipal securities dealers foster cooperation and coordination with 38; this Q&A can also be found on the persons engaged in regulating, clearing, MSRB’s website at http://www.msrb.org/ (collectively ‘‘dealers’’), the MSRB has settling, processing information with respect msrb1/rules/notg38.htm. found that some dealers are not to, and facilitating transactions in municipal 3. providing the level of detail in the securities, to remove impediments to and Q: If a dealer has a continuing information they disclose as required by perfect the mechanism of a free and open relationship with a consultant, is the Rules G–37 and G–38. market in municipal securities, and, in dealer required to list the consultant on With respect to Rule G–37, some general, to protect investors and the public its Form G–37/G–38 for each quarterly dealers are not correctly identifying the interest. reporting period even if the dealer did category of contributor on Form G–37/ The MSRB believes that the proposed not pay the consultant any G–38. For example, some dealers will rule change is consistent with the Act in compensation and/or the consultant did note that an ‘‘employee’’ made a that it provides guidance to dealers that not undertake any affirmative efforts on contribution instead of a municipal will facilitate their understanding of, behalf of the dealer to obtain or retain finance professional (‘‘MFP’’) or non- and compliance with, existing MSRB municipal securities business during MFP executive officer. Also, in some rules. that quarter? instances where an issuer official is A: Yes, the dealer must continue to running for federal office (e.g., a state B. Self-Regulatory Organization’s list the consultant and disclose the governor running for a seat in the U.S. Statement on Burden on Competition required consultant information for each House of Representatives), firms The MSRB does not believe that the quarterly reporting period during which sometimes note the federal race but not proposed rule change will impose any there is a continuing relationship even the fact that the candidate currently is if the consultant received no an issuer official. The proposed rule 3 15 U.S.C. 78o–4(b)(2)(C).
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burden on competition not necessary or available for inspection and copying in on its members. No new dues, fees and appropriate in furtherance of the the Commission’s Public Reference charges are being imposed pursuant to purposes of the Act since it would apply Room. Copies of such filing will also be this proposed rule change. equally to all brokers, dealers and available for inspection and copying at The Exchange proposes to delete in municipal securities dealers. the MSRB’s offices. All submissions their entirety, all charges relating to: (1) should refer to file number SR–MSRB– ‘‘Summary of Value Line Index Option C. Self-Regulatory Organization’s 2004–01 and should be submitted by Charges’’ and (2) the ‘‘eVWAP Fee Statement on Comments on the April 1, 2004. Schedule.’’ Additionally, the Exchange Proposed Rule Change Received From proposes to delete from Appendix A of Members, Participants or Others For the Commission, by the Division of Market Regulation, pursuant to delegated its fee schedule references to the Written comments were neither authority.6 ‘‘Option Mailgram Service’’ and solicited nor received. Margaret H. McFarland, ‘‘Quotron Equipment.’’ The Phlx also proposed to revise the ‘‘Summary of III. Date of Effectiveness of the Deputy Secretary. Equity Charges’’ portion of the fee Proposed Rule Change and Timing for [FR Doc. 04–5551 Filed 3–10–04; 8:45 am] schedule. The proposed rule change Commission Action BILLING CODE 8010–01–P would delete the reference to The MSRB has designated this ‘‘Remaining shares, $0.004’’ that proposed rule change as constituting a SECURITIES AND EXCHANGE appears on the last line under the Equity stated policy, practice or interpretation COMMISSION Transaction Charge and, instead, the with respect to the meaning, term ‘‘Remaining shares’’ will replace administration or enforcement of an [Release No. 34–49362; File No. SR–Phlx– the language that appeared on the existing MSRB rule under Section 2004–15] transaction fee line that read ‘‘Next 19(b)(3)(A) of the Act,4 which renders 7,500.’’ 5 The Phlx would make this the proposed rule change effective upon Self-Regulatory Organizations; Notice of Filing and Immediate Effectiveness change to indicate that all remaining filing with the Commission. shares that are not subject to the $0.0075 At any time within 60 days of this of Proposed Rule Change and Amendment No. 1 Thereto by the equity transaction charge are subject to filing, the Commission may summarily the $0.005 equity transaction charge, abrogate this proposal if it appears to Philadelphia Stock Exchange, Inc. Relating to Modifications to the Fee subject to the $50 maximum. The text of the Commission that such action is the proposed rule change, as amended, necessary or appropriate in the public Schedule To Delete Obsolete Fees and Clarify Language is available at the Phlx and at the interest, for the protection of investors, Commission. or otherwise in furtherance of the March 4, 2004. purposes of the Act.5 II. Self-Regulatory Organization’s Pursuant to section 19(b)(1) of the Statement of the Purpose of, and IV. Solicitation of Comments Securities Exchange Act of 1934 Statutory Basis for, the Proposed Rule (‘‘Act’’) 1, and Rule 19b–4 thereunder,2 Interested persons are invited to Change notice is hereby given that on February submit written data, views, and 13, 2004, the Philadelphia Stock In its filing with the Commission, the arguments concerning the foregoing, Exchange, Inc. (‘‘Phlx’’ or ‘‘Exchange’’) Phlx included statements concerning including whether the proposal is filed with the Securities and Exchange the purpose of and basis for the consistent with the Act. Persons making Commission (‘‘SEC’’ or ‘‘Commission’’) proposed rule change and discussed any written submissions should file six the proposed rule change as described comments it received on the proposed copies thereof with the Secretary, in Items I, II, and III, below, which Items rule change. The text of these statements Securities and Exchange Commission, have been prepared by the Phlx. On may be examined at the places specified 450 Fifth Street, NW., Washington, DC February 27, 2004, the Phlx amended its in Item IV below. The Phlx has prepared 20549–0609. Comments may also be proposal.3 The Exchange filed the summaries, set forth in sections A, B, submitted electronically at the following proposed rule change under paragraph and C below, of the most significant e-mail address: [email protected]. (f)(2) of Rule 19b–4 under the Act.4 The aspects of such statements. All comment letters should refer to File Commission is publishing this notice to No. SR–MSRB–2004–01. This file A. Self-Regulatory Organization’s solicit comments on the proposed rule number should be included on the Statement of the Purpose of, and change from interested persons. subject line if e-mail is used. To help the Statutory Basis for, the Proposed Rule Commission process and review your I. Self-Regulatory Organization’s Change comments more efficiently, comments Statement of the Terms of Substance of 1. Purpose should be sent in hardcopy or by e-mail the Proposed Rule Change The purpose of the proposed rule but not by both methods. Copies of the The Phlx proposes to amend its change is to make minor modifications submission, all subsequent schedule of dues, fees and charges (‘‘fee to the Exchange’s fee schedule to more amendments, all written statements schedule’’), as described in detail below, accurately reflect the charges currently with respect to the proposed rule to more accurately reflect charges that imposed by the Exchange and delete change that are filed with the are currently imposed by the Exchange obsolete fees. Both the ‘‘Option Commission, and all written Mailgram Service’’ fee and the ‘‘Quotron communications relating to the 6 17 CFR 200.30–3(a)(12). Equipment’’ fee are no longer charged proposed rule change between the 1 15 U.S.C. 78s(b)(1). by the Exchange; this service and Commission and any person, other than 2 17 CFR 240.19b–4. equipment are no longer offered. In those that may be withheld from the 3 See Letter from Angela Saccomandi Dunn, addition, eVWAP and Value Line Index public in accordance with the Counsel, Phlx, to Nancy J. Sanow, Assistant provisions of 5 U.S.C. 552, will be Director, Division of Market Regulation, Commission, dated February 26, 2004 5 Applying the amount of $0.004 to the remaining (‘‘Amendment No. 1’’). In Amendment No. 1, Phlx shares is unnecessary, because the $50.00 4 15 U.S.C. 78s(b)(3)(A). replaced Exhibit 2 to its Form 19b–4. maximum fee per trade side is reached before the 5 See 15 U.S.C. 78s(b)(3)(C). 4 17 CFR 240.19b–4(f)(2). $0.004 can apply.
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Option products, are no longer offered IV. Solicitation of Comments (‘‘Act’’) 1 and Rule 19b–4 2 thereunder, at the Exchange. Also, a minor Interested persons are invited to notice is hereby given that on March 1, modification to the reference to submit written data, views and 2004, the Philadelphia Stock Exchange, ‘‘Remaining Shares’’ that appears on the arguments concerning the foregoing, Inc. (‘‘Phlx’’ or ‘‘Exchange’’) filed with ‘‘Summary of Equity Charges,’’ under including whether the proposed rule the Securities and Exchange the ‘‘Equity Transaction Charge’’ change, as amended, is consistent with Commission (‘‘SEC’’ or ‘‘Commission’’) section, will eliminate unnecessary the Act. Persons making written the proposed rule change as described 6 language. submissions should file six copies in Items I, II and III below, which Items By removing and clarifying the thereof with the Secretary, Securities have been prepared by the Exchange. aforementioned portions of the and Exchange Commission, 450 Fifth The Commission is publishing this Exchange’s fee schedule, as described in Street, NW., Washington, DC 20549– notice to solicit comments on the detail above, the Exchange believes that 0609. Comments may also be submitted proposed rule change from interested its fee schedule will be more accurate electronically at the following e-mail persons. and clear, and minimize member address: [email protected]. All I. Self-Regulatory Organization’s confusion. comment letters should refer to File No. Statement of the Terms of Substance of 2. Statutory Basis SR–Phlx–2004–15. This file number the Proposed Rule Change should be included on the subject line The Phlx proposes to adopt, on a The Exchange believes that its if e-mail is used. To help the permanent basis, Rule 1080(c)(iii) proposal to amend its fee schedule is Commission process and review concerning a feature of the Exchange’s 7 consistent with section 6(b) of the Act comments more efficiently, comments Automated Options Market (‘‘AUTOM’’) in general, and furthers the objectives of should be sent in hardcopy or by e-mail System,3 designed to automatically 8 section 6(b)(4) of the Act in particular, but not by both methods. Copies of the execute limit orders on the book when in that it provides for the equitable submission, all subsequent the specialist’s quotation locks or allocation of reasonable dues, fees, and amendments, all written statements crosses a limit order on the book, thus other charges among its members and with respect to the proposed rule rendering such limit order marketable. issuers and other persons using its change that are filed with the This feature, called ‘‘Book Sweep,’’ is facilities. Commission, and all written currently operating as a six-month B. Self-Regulatory Organization’s communications relating to the pilot.4 The text of the proposed rule Statement on Burden on Competition proposed rule change between the change is available at the principal Commission and any person, other than offices of the Phlx and at the The Exchange does not believe that those that may be withheld from the Commission. The proposed rule change the proposed rule change, as amended, public in accordance with the does not alter the text of the pilot will impose any burden on competition provisions of 5 U.S.C. 552, will be language in Rule 1080(c)(iii), but simply not necessary or appropriate in available for inspection and copying in makes permanent Rule 1080(c)(iii). furtherance of the purposes of the Act. the Commission’s Public Reference Room. Copies of such filing will also be II. Self-Regulatory Organization’s C. Self-Regulatory Organization’s available for inspection and copying at Statement of the Purpose of, and Statement on Comments on the the principal office of the Phlx. Statutory Basis for, the Proposed Rule Proposed Rule Change Received From All submissions should refer to File Change Members, Participants, or Others No. SR–Phlx–2004–15 and should be In its filing with the Commission, the No written comments on the proposed submitted by April 1, 2004. Exchange included statements rule change were either solicited or For the Commission, by the Division of concerning the purpose of and basis for received. Market Regulation, pursuant to delegated the proposed rule change and discussed authority.11 any comments it received on the III. Date of Effectiveness of the Margaret H. McFarland, proposed rule change. The text of these Proposed Rule Change and Timing for statements may be examined at the Commission Action Deputy Secretary. [FR Doc. 04–5424 Filed 3–10–04; 8:45 am] places specified in Item IV below. The Exchange has prepared summaries, set The proposed rule change, as BILLING CODE 8010–01–P amended, has become effective pursuant forth in Sections A, B and C below, of to section 19(b)(3)(A)(ii) of the Act 9 and the most significant aspects of such Rule 19b–4(f)(2) 10 thereunder because it SECURITIES AND EXCHANGE statements. establishes or changes a due, fee, or COMMISSION 1 other charge imposed by the Exchange. 15 U.S.C. 78s(b)(1). [Release No. 34–49365; File No. SR–Phlx– 2 17 CFR 240.19b–4. At any time within 60 days of the filing 2004–18] 3 AUTOM is the Exchange’s electronic order of such proposed rule change, the delivery, routing, execution and reporting system, Commission may summarily abrogate Self-Regulatory Organizations; Notice which provides for the automatic entry and routing such rule change if it appears to the of equity option and index option orders to the of Filing of Proposed Rule Change by Exchange trading floor. Orders delivered through Commission that such action is the Philadelphia Stock Exchange, Inc. AUTOM may be executed manually, or certain necessary or appropriate in the public To Make Permanent a Pilot Program orders are eligible for AUTOM’s automatic interest, for the protection of investors, Relating to the Book Sweep Function execution features. Equity option and index option specialists are required by the Exchange to or otherwise in furtherance of the of the Exchange’s Automated Options participate in AUTOM and its features and purposes of the Act. Market System enhancements. Option orders entered by Exchange members into AUTOM are routed to the appropriate specialist unit on the Exchange trading floor. 6 See supra note 3. March 4, 2004. 4 In September, 2003, the Commission approved 7 15 U.S.C. 78f(b). Pursuant to Section 19(b)(1) of the the Exchange’s Book Sweep proposal on a six- 8 15 U.S.C. 78f(b)(4). Securities Exchange Act of 1934 month pilot basis. See Securities Exchange Act 9 15 U.S.C. 78s(b)(3)(A)(ii). Release No. 48563 (September 29, 2003), 68 FR 10 17 CFR 240.19b–4(f)(2). 11 17 CFR 200.30–3(a)(12). 57724 (October 6, 2003) (SR–Phlx–2003–30).
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A. Self-Regulatory Organization’s locks or crosses a limit order on the The third possible scenario is that the Statement of the Purpose of, and book. The purpose of this provision is size associated with the quote that locks Statutory Basis for, the Proposed Rule to make automatic executions in the or crosses a limit order on the book Change Book Sweep function consistent with would be for fewer contracts than the size associated with the booked limit 1. Purpose the Exchange’s rules relating to AUTO- X, the automatic execution feature of order. In this situation, the limit order The purpose of the proposed rule AUTOM. The Exchange no longer has would be partially executed change is to further automate options an artificial ‘‘AUTO-X guarantee’’ automatically at the size associated with order handling by adopting, on a applicable to an option. Instead, the the quote that locks or crosses the limit permanent basis, a current pilot Exchange currently provides automatic order,11 and Auto-Quote or SQF would enhancement to the Exchange’s AUTOM executions for eligible orders 9 delivered refresh the quotation. For example, if a system, called Book Sweep, that allows via AUTOM at the Exchange’s limit order is resting on the book with certain orders resting on the limit order disseminated price, up to the a size of 200 contracts, and the size 5 book to be automatically executed in disseminated size, for both customer associated with the quote that locks or the situation where the bid or offer and broker-dealer orders.10 Because the crosses such a limit order is 100 generated by the Exchange’s Auto- Exchange’s disseminated size (and thus contracts, Book Sweep would generate 6 Quote system (or by a proprietary its guaranteed AUTO-X size) is an automatic execution for 100 quoting system called ‘‘Specialized dependent on the size displayed when contracts, leaving 100 contracts resting 7 Quote Feed’’ or ‘‘SQF’’) locks (i.e., an order is received, and thus is fluid, on the limit order book, and Auto-Quote $1.00 bid, $1.00 offer) or crosses (i.e., in order to achieve consistency, the or SQF would refresh the quote. If the $1.05 bid, $1.00 offer) the Exchange’s number of contracts to be executed via refreshed quote locks or crosses the best bid or offer in a particular series as Book Sweep is equal to the size remaining contracts in the limit order established by an order on the limit associated with the quote that locks or resting on the book, Book Sweep would order book. Orders executed by the crosses the limit order on the book. initiate another automatic execution for Book Sweep feature are allocated among When a quotation is generated by the size associated with the refreshed crowd participants participating on the quote. If the refreshed bid or offer is for Wheel.8 Auto-Quote or SQF locks or crosses a limit order on the book, there are three a price that is inferior to the remaining The Exchange believes that the Book contracts in the limit order on the book, Sweep feature provides for more timely possible scenarios that may occur. First, if such a quotation is for a number of such that the limit order represents the and efficient executions of marketable Exchange’s best bid or offer, the price limit orders on the limit order book. contracts that is equal to the size associated with the limit order on the and size of the limit order would be Prior to the deployment of Book Sweep, disseminated by the Exchange. If the when the Auto-Quote or SQF bid or book, the entire limit order would be refreshed bid or offer is for a price that offer locked or crossed a booked order, executed. For example, if a limit order is superior to the price of the remaining the specialist handled the execution is resting on the book with a size of 200 limit order, the Exchange would manually after being alerted by the contracts, and the size associated with disseminate the refreshed bid or offer, system that one or more limit orders on the quotation that locks or crosses such and the remaining limit order would the book have become marketable and a limit order is 200 contracts, the entire rest on the limit order book until it are due an execution. This situation limit order on the book would be becomes due for execution or is could occur for several series in the executed, and Auto-Quote or SQF cancelled. same option, which prior to the would thereafter refresh the quotation deployment of Book Sweep required (including the size associated with such Manual Book Sweep multiple executions of booked limit a quotation). Book Sweep would be engaged when orders in each such series to be carried The second possible scenario is that AUTO–X is engaged, and would be out by the specialist. Book Sweep the size associated with a quotation that disengaged when AUTO-X is automates the execution of such orders. locks or crosses a limit order on the disengaged.12 However, the Exchange Book Sweep Size book could be for a greater number of contracts than the size associated with 11 Exchange Rule 1082(b) provides that all Book Sweep automatically executes a the booked limit order. In such a quotations made available by the Exchange and number of contracts not to exceed the situation, the entire size of the limit displayed by quotation vendors shall be firm for size associated with the quotation that customer and broker-dealer orders at the order would be executed. For example, disseminated price in an amount up to the if a limit order is resting on the book disseminated size. See also Rule 11Ac1–1 under the 5 The electronic ‘‘limit order book’’ is the with a size of 200 contracts, and size Act, 17 CFR 240.11Ac1–1. Exchange’s automated specialist limit order book, 12 which automatically routes all unexecuted AUTOM associated with the quotation that locks Exchange Rule 1080(c)(iv) provides that an order otherwise eligible for AUTO-X will instead be orders to the book and displays orders real-time in or crosses such a limit order is 300 order of price-time priority. Orders not delivered manually handled by the specialist in the following through AUTOM may also be entered onto the limit contracts, the entire limit order would situations: order book. See Exchange Rule 1080, Commentary be executed. Following the execution, (A) The Exchange’s disseminated market is .02. Auto-Quote or SQF would thereafter crossed (i.e., 2.10 bid, 2 offer), or crosses the 6 Auto-Quote is the Exchange’s electronic options refresh the quotation (including the size disseminated market of another options exchange; (B) One of the following order types: stop, stop pricing system, which enables specialists to associated with such a quotation). automatically monitor and instantly update limit, market on closing, market on opening, or an quotations. See Exchange Rule 1080, Commentary all-or-none order where the full size of the order .01(a). 9 For a list of circumstances in which orders cannot be executed; 7 See Exchange Rule 1080, Commentary .01(b)(i). otherwise eligible for AUTO–X are instead (C) The AUTOM System is not open for trading 8 The ‘‘Wheel’’ is a feature of AUTOM that manually handled by the specialist, see Exchange when the order is received (which is known as a allocates contra-party participation respecting Rule 1080(c)(iv). See also Securities Exchange Act pre-market order); automatically executed trades among the specialist Release No. 45927 (May 15, 2002), 67 FR 36289 (D) The disseminated market is produced during and Registered Options Traders (‘‘ROTs’’) signed (May 23, 2002) (SR–Phlx–2001–24). an opening or other rotation; onto the Wheel for that listed option. See Exchange 10 See Securities Exchange Act Release No. 47646 (E) When the specialist posts a bid or offer that Rule 1080(g). See also Option Floor Procedure (April 8, 2003), 68 FR 17976 (April 14, 2003) (SR– is better than the specialist’s own bid or offer Advice (‘‘OFPA’’) F–24. Phlx–2003–18). Continued
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proposes to allow specialists to engage Register or within such longer period (i) SOCIAL SECURITY ADMINISTRATION Book Sweep manually when orders are as the Commission may designate up to received when AUTO-X is disengaged, 90 days of such date if it finds such The Ticket to Work and Work and Auto-Quote or SQF matches or longer period to be appropriate and Incentives Advisory Panel crosses the Exchange’s best bid or offer publishes its reasons for so finding or Teleconference in a particular series as established by (ii) as to which the Exchange consents, AGENCY: Social Security Administration an order on the limit order book. The the Commission will: (SSA). purpose of this provision is to enable the specialist to execute limit orders on A. By order approve the proposed rule ACTION: Notice of Teleconference. the book that are due for execution more change, or DATE: Monday, March 15, 2004. efficiently by manually initiating Book B. Institute proceedings to determine Sweep (rather than executing such whether the proposed rule change TELECONFERENCE: Monday March 15, orders individually), thus providing should be disapproved. 2004, 1:30 p.m. to 3:30 p.m. Eastern more efficient executions and ensuring time. IV. Solicitation of Comments that the specialist may maintain a fair Ticket to Work and Work Incentives and orderly market when such orders Interested persons are invited to Advisory Panel Conference Call become due for execution. submit written data, views and Call-in number: 1–888–459–7564. 2. Statutory Basis arguments concerning the foregoing, Pass code: PANEL. The Exchange believes that its including whether the proposed change Leader/Host: Sarah Wiggins Mitchell. proposal is consistent with Section 6(b) is consistent with the Act. Persons SUPPLEMENTARY INFORMATION: of the Act 13 in general, and furthers the making written submissions should file Type of meeting: This teleconference objectives of Section 6(b)(5) of the Act 14 six copies thereof with the Secretary, meeting is open to the public. The in particular, in that it is designed to Securities and Exchange Commission, interested public is invited to perfect the mechanisms of a free and 450 Fifth Street NW., Washington, DC participate by calling into the open market and a national market 20549–0609. Comments may also be teleconference at the number listed system, and to protect investors and the submitted electronically at the following above. Public testimony will not be public interest. The Exchange believes e-mail address: [email protected]. taken. that Book Sweep helps provide faster All comment letters should refer to File Purpose: In accordance with section 10(a)(2) of the Federal Advisory executions for investors, while reducing No. SR–Phlx–2004–18. This file number Committee Act, the Social Security the burden on the Exchange’s specialists should be included on the subject line Administration (SSA) announces this with respect to the manual execution of if e-mail is used. To help the booked orders. teleconference meeting of the Ticket to Commission process and review your Work and Work Incentives Advisory B. Self-Regulatory Organization’s comments more efficiently, comments Panel (the Panel). Section 101(f) of Pub. Statement on Burden on Competition should be sent in hard copy or by e-mail L. 106–170 establishes the Panel to The Exchange does not believe that but not by both methods. Copies of the advise the President, the Congress and the proposed rule change will impose submission, all subsequent the Commissioner of SSA on issues any inappropriate burden on amendments, all written statements related to work incentives programs, competition. with respect to the proposed rule planning and assistance for individuals change that are filed with the with disabilities as provided under C. Self-Regulatory Organization’s Commission, and all written section 101(f)(2)(A) of the Ticket to Statement on Comments on the communications relating to the Work and Work Incentives Advisory Act Proposed Rule Change Received From proposed rule change between the (TWWIIA). The Panel is also to advise Members, Participants or Others Commission and any person, other than the Commissioner on matters specified No written comments were either those that may be withheld from the in section 101(f)(2)(B) of that Act, solicited or received. public in accordance with the including certain issues related to the III. Date of Effectiveness of the provisions of 5 U.S.C. 552, will be Ticket to Work and Self-Sufficiency Proposed Rule Change and Timing for available for inspection and copying in Program established under section Commission Action the Commission’s Public Reference 101(a) of that Act. Section. Copies of such filing will also Agenda: The Panel will be discussing Within 35 days of the date of its Annual Report to the President and publication of this notice in the Federal be available for inspection and copying at the principal office of the Exchange. Congress. The agenda for this meeting All submissions should refer to File No. will be posted on the Internet at (except with respect to orders eligible for ‘‘Book http://www.socialsecurity.gov/work/ Match’’ as described in Rule 1080(g)); SR–Phlx–2004–18 and should be panel one week prior to the (F) If the NBBO Feature, described in Exchange submitted by April 1, 2004. Rule 1080(c)(i), is not engaged, and the Exchange’s teleconference or can be received in bid or offer is not the NBBO; For the Commission, by the Division of advance electronically or by fax upon (G) When the price of a limit order is not in the Market Regulation, pursuant to delegated request. appropriate minimum trading increment pursuant authority.15 Contact Information: Records are to Rule 1034; being kept of all Panel proceedings and (H) When the bid price is zero respecting sell Jill M. Peterson, orders; and Assistant Secretary. will be available for public inspection (I) When the number of contracts automatically [FR Doc. 04–5548 Filed 3–10–04; 8:45 am] by appointment at the Panel office. executed within a 15 second period in an option Anyone requiring information regarding (subject to a pilot program until November 30, BILLING CODE 8010–01–P the Panel should contact the TWWIIA 2004) exceeds the specified disengagement size, a Panel staff by: 30 second period ensues during which subsequent • orders are handled manually. Mail addressed to Ticket to Work 13 15 U.S.C. 78f(b). and Work Incentives Advisory Panel 14 15 U.S.C. 78f(b)(5). 15 17 CFR 200.30–3(a)(12). Staff, Social Security Administration,
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400 Virginia Avenue, SW., Suite 700, Information and Regulatory Affairs, types of information in the following Washington, DC 20024; Office of Management and Budget systems of records that SSA maintains: • Telephone contact with Monique (OMB) on March 4, 2004. The proposed (a) From the Completed Fisher (202) 358–6435; routine use will become effective on Determination Record—Continuing • Fax at (202) 358–6440; or April 13, 2004, unless we receive Disability Determinations, 60–0050: • E-mail to [email protected]. comments warranting it not to become date of birth; date disability began; type Dated: March 4, 2004. effective. of claim; continuance or cessation code; Carol Brenner, ADDRESSES: Interested individuals may date of termination; and date of comment on this publication by writing completion. Designated Federal Official. (b) From the Master Files of Social [FR Doc. 04–5624 Filed 3–10–04; 8:45 am] to the Executive Director, Office of Public Disclosure, Office of the General Security Number (SSN) Holders and BILLING CODE 4191–02–P Counsel, Social Security SSN Applications, 60–0058: date of Administration, Room 3–A–6 birth; sex; race; place of birth; and date of death. SOCIAL SECURITY ADMINISTRATION Operations Building, 6401 Security Boulevard, Baltimore, Maryland 21235– (c) From the Master Beneficiary Privacy Act of 1974, as Amended; New 6401. All comments received will be Record, 60–0090: primary insurance System of Records and New Routine available for public inspection at the amount; average indexed monthly Use Disclosures above address. earnings; date of death of primary FOR FURTHER INFORMATION CONTACT: Ms. beneficiary; beneficiary date of birth; AGENCY: Social Security Administration Pamela McLaughlin, Social Insurance beneficiary date of death; monthly (SSA). Specialist, Strategic Issues Team, Office benefit amount; monthly benefit ACTION: Proposed new routine use for of Public Disclosure, Office of the payable; diagnosis code; reason for existing systems of records. General Counsel, Social Security denial/disallowance; and dual- Administration, Room 3–C–2 entitlement data. SUMMARY: In accordance with the Operations Building, 6401 Security (d) From the Supplemental Security Privacy Act (5 U.S.C. 552a(e)(4) and Boulevard, Baltimore, Maryland 21235, Income Record and Special Veterans (11)), we are issuing public notice of our e-mail address at Benefits, 60–0103: transaction code; intent to establish a new routine use [email protected], or by computation status; date of birth; date of disclosure applicable to the following telephone at (410) 965–3677. death; sex; race; date of eligibility; existing SSA systems of records: payment status code; Federal assistance SUPPLEMENTARY INFORMATION: • Completed Determination Record— amount; and current amount of State Continuing Disability Determinations, I. Discussion of the Proposed New supplementation. 60–0050; Routine Use (e) From the Old Age, Survivors and • Master Files of Social Security Disability Beneficiary and Worker Number (SSN) Holders and SSN A. General Records and Extracts (Statistics), 60– Applications, 60–0058; In an effort to improve the quality of 0202: various data. • Master Beneficiary Record, 60– research designed to enhance the (f) From the Beneficiary, Family, and 0090; decision-making process in the Social Household Surveys, Records and • Supplemental Security Income Security program, SSA is expanding the Extracts System (Statistics), 60–0211: Record and Special Veterans Benefits, use of information it currently collects various data. 60–0103; for additional SSA-approved research 2. The types of research activities • Old Age, Survivors and Disability studies. Such further uses will permit contemplated by the proposed routine Beneficiary and Worker Records and the development of richer and more use do not include research proposals Extracts (Statistics), 60–0202; and comprehensive information that can be that involve the use of information from • Beneficiary, Family and Household used in actuarial, epidemiological, SSA’s systems of records to draw Surveys, Records and Extracts System economic and other social science samples for surveys or to contact (Statistics), 60–0211. projects that will ultimately benefit the individuals, other than in situations The proposed routine use will allow public, SSA, and other Federal, State or already provided for in regulations. SSA to expand the use of information congressional support agencies’ (e.g., The proposed routine use reads as SSA currently collects for additional Congressional Budget Office (CBO) and follows: SSA-approved research studies. Such the Congressional Research Staff in the Disclosure may be made to a Federal, further uses will permit the Library of Congress) programs. The State, or congressional support agency development of richer and more proposed use of the information will (e.g., Congressional Budget Office and comprehensive information that can be allow new studies to occur regarding the the Congressional Research Staff in the used in actuarial, epidemiological, administration of the Social Security Library of Congress) for research, economic and other social science program, and other related programs, evaluation, or statistical studies. Such projects that will ultimately benefit the that might otherwise not be undertaken disclosures include, but are not limited public, SSA, and other Federal, State or due to the lack of data. to, release of information in assessing congressional support agencies’ (e.g., the extent to which one can predict Congressional Budget Office (CBO) and B. Disclosure of Information to a eligibility for Supplemental Security the Congressional Research Staff in the Federal, State or Congressional Support Income (SSI) payments or Social Library of Congress) programs. We Agency (e.g., CBO and the Security disability insurance (SSDI) invite public comment on this proposal. Congressional Research Staff in the benefits; examining the distribution of DATES: We filed a report of the proposed Library of Congress) for Research, Social Security benefits by economic new routine use disclosure with the Evaluation or Statistical Studies and demographic groups and how these Chairman of the Senate Committee on 1. The types of information that are differences might be affected by possible Governmental Affairs, the Chairman of most commonly used that will be changes in policy; analyzing the the House Committee on Government released under the proposed routine use interaction of economic and non- Reform, and the Director, Office of may include, but not be limited to, the economic variables affecting entry and
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exit events and duration in the Title II the recipient’s understanding of, and focusing on the role of Social Security Old Age, Survivors, and Disability willingness to abide by, these benefit amounts, automatic benefit Insurance and the Title XVI SSI provisions. computation, the delayed retirement disability programs; and, analyzing We are not republishing in their credit, and the retirement test. The retirement decisions focusing on the entirety the notices of systems of proposed routine use is appropriate and role of Social Security benefit amounts, records to which we are adding the meets the relevant statutory and automatic benefit recomputation, the proposed new routine use disclosure. regulatory criteria. delayed retirement credit, and the Instead, we are republishing only the III. Effect of the Proposed Routine Use retirement test, if SSA: identification number, and the name of a. Determines that the routine use each system of records, and the volume, Disclosure on the Rights of Individuals does not violate legal limitations under page number, and date of the Federal The proposed routine use will allow which the record was provided, Register (FR) issue in which the systems SSA to disclose more comprehensive collected, or obtained; notice was last published. The proposed information that can be used in b. Determines that the purpose for new routine use will be included in the actuarial, epidemiological, economic, which the proposed use is to be made: following SSA systems notices: and other social science projects that (i) Cannot reasonably be (1) Completed Determination will ultimately benefit SSA, other accomplished unless the record is Record—Continuing Disability Federal programs and the public. The provided in a form that identifies Determinations, 60–0050; research activity that will be conducted individuals; (2) Master Files of Social Security based on information disclosed under (ii) Is of sufficient importance to Number (SSN) Holders and SSN the proposed routine use will not result warrant the effect on, or risk to, the Applications, 60–0058; in decisions or actions taken against privacy of the individual which such (3) Master Beneficiary Record, 60– specific individuals. The routine use limited additional exposure of the 0090; has established safeguards to prevent record might bring; (4) Supplemental Security Income unauthorized use of disclosure of the (iii) Has reasonable probability that Record and Special Veterans Benefits, record and to ensure the privacy and the objective of the use would be 60–0103; other rights of individuals. accomplished; (5) Old Age, Survivors and Disability Additionally, we will adhere to all (iv) Is of importance to the Social Beneficiary and Worker Records and applicable provisions of the Privacy Act Security program or the Social Security Extracts (Statistics), 60–0202; and when disclosing information. Thus, we beneficiaries or is for an (6) Beneficiary, Family and do not anticipate that the proposed new epidemiological research project that Household Surveys, Records and routine use will have any unwarranted relates to the Social Security program or Extracts System (Statistics), 60–0211. adverse effect on the rights of beneficiaries; II. Compatibility of Proposed Routine individuals about whom data will be c. Requires the recipient of Use disclosed. information to: (i) Establish appropriate The Privacy Act (5 U.S.C. 552a(a)(7) Dated: March 3, 2004. administrative, technical, and physical and (b)(3)) and SSA’s disclosure Jo Anne B. Barnhart, safeguards to prevent unauthorized use regulation (20 CFR part 401) permit us Commissioner. or disclosure of the record and agree to to disclose information under a [FR Doc. 04–5414 Filed 3–10–04; 8:45 am] on-site inspection by SSA’s personnel, published routine use for a purpose that BILLING CODE 4191–02–P its agents, or by independent agents of is compatible with the purpose for the recipient agency of those safeguards; which we collected the information. (ii) Remove or destroy the information Section 401.150(c) of SSA’s Regulations DEPARTMENT OF STATE that enables the individual to be at 20 CFR permits us to disclose identified at the earliest time at which information under a routine use, where [Public Notice 4649] necessary, to carry out SSA programs. removal or destruction can be Culturally Significant Objects Imported accomplished consistent with the This proposed routine use will allow new studies to occur regarding the for Exhibition Determinations: purpose of the project, unless the ‘‘Bonjour, Monsieur Courbet: The recipient receives written authorization administration of the Social Security program, and other related programs, Bruyas Collection From the Muse´e from SSA that it is justified, based on Fabre, Montpellier’’ research objectives, for retaining such that might not otherwise be undertaken information; due to the lack of data. The types of AGENCY: Department of State. (iii) Make no further use of the research activities contemplated by the ACTION: Notice. records except proposed routine use would include, (a) Under emergency circumstances but are not limited to, assessing the SUMMARY: Notice is hereby given of the affecting the health or safety of any extent to which one can predict following determinations: Pursuant to individual following written eligibility for SSI payments or Social the authority vested in me by the Act of authorization from SSA; Security disability insurance benefits; October 19, 1965 (79 Stat. 985; 22 U.S.C. (b) For disclosure to an identified examining the distribution of Social 2459), Executive Order 12047 of March person approved by SSA for the purpose Security benefits by economic and 27, 1978, the Foreign Affairs Reform and of auditing the research project; demographic groups and how these Restructuring Act of 1998 (112 Stat. (iv) Keep the data as a system of differences might be affected by possible 2681, et seq.; 22 U.S.C. 6501 note, et statistical records. A statistical record is changes in policy; analyzing the seq.), Delegation of Authority No. 234 of one which is maintained only for interaction of economic and non- October 1, 1999, Delegation of Authority statistical and research purposes and economic variables affecting entry and No. 236 of October 19, 1999, as which is not used to make any exit events and duration in the Title II amended, and Delegation of Authority determination about an individual; Old Age, Survivors, and Disability No. 257 of April 15, 2003 (68 FR 19875), d. Secures a written statement by the Insurance and Title XVI SSI disability I hereby determine that the objects to be recipient of the information attesting to programs; and, analyzing retirement included in the exhibition ‘‘Bonjour,
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Monsieur Courbet: The Bruyas Pakistan, Central Asia, the Middle East judiciary, legal defense assistance and Collection from the Muse´e Fabre, and North Africa or Southeast Asia; defense lawyers; Montpellier,’’ imported from abroad for however, DRL will consider proposals 4. Strengthen press freedoms and temporary exhibition within the United for projects in other countries/regions build capacity of independent media; States, are of cultural significance. The with significant Muslim populations. 5. Build the capacity of civil society objects are imported pursuant to loan Awards are contingent upon the organizations. availability of Fiscal Year 2004 funds. agreements with the foreign owners. I The Middle East, North Africa and Iran also determine that the exhibition or Up to $9,000,000 may be available display of the exhibit objects at the under the Economic Support Fund for The Bureau of Democracy, Human Virginia Museum of Fine Arts, projects that address Bureau objectives Rights and Labor is interested in Richmond, Virginia, from on or about in countries in the Muslim World. The supporting projects in the Middle East, March 26, 2004 until on or about June Bureau anticipates awarding between North Africa and Iran, which focus on 13, 2004, at the Sterling and Francine 10–20 grants in amounts of $500,000– the following activities: Clark Art Institute, Williamstown, $1,000,000. 1. Support civil society, with emphasis on political actors and Massachusetts, from on or about June Pakistan 27, 2004 until on or about September 6, advocacy groups that involve women; 2004, at the Dallas Museum of Art, The Bureau of Democracy, Human 2. Increase access to information Dallas, Texas, from on or about October Rights and Labor is interested in through freedom of the press, freedom 17, 2004 until on or about January 2, supporting projects in Pakistan which of speech, and enhanced public 2005, at the Fine Arts Museum of San focus on the following activities: awareness of human rights and Francisco, San Francisco, California 1. Train and strengthen political democracy issues; from on or about January 22, 2005 until parties; 3. Promote democratic elections by on or about April 3, 2005, and at 2. Support Pakistan’s judiciary, strengthening institutional capacity, possible additional venues yet to be overall legal system and government training political parties, NGOs and determined, is in the national interest. institutions, including programs that newly elected officials, and raising civic Public Notice of these Determinations is promote efficiency, transparency and awareness; ordered to be published in the Federal rule of law; 4. Promote rule of law with an Register. 3. Promote press freedoms and train emphasis on civil liberties, government journalists in standards of fair and accountability, and administration of FOR FURTHER INFORMATION CONTACT: For balanced reporting; build the capacity of justice; further information, including a list of media organizations to operate the exhibit objects, contact the Office of Southeast Asia independently; the Legal Adviser, U.S. Department of 4. Strengthen institutions to promote The Bureau of Democracy, Human State, (telephone: 202/619–6982). The the rule of law; Rights and Labor is interested in address is U.S. Department of State, SA– 5. Build the capacity of civil society supporting projects in countries in 44, 301 4th Street, SW., Room 700, organizations, such as NGOs and Southeast Asia with significant Muslim Washington, DC 20547–0001. professional associations; populations which focus on the Dated: March 1, 2004. 6. Promote overall respect for human following activities: C. Miller Crouch, rights by both the government and civil 1. Empower Muslim women, Principal Deputy Assistant Secretary for society; including projects that promote capacity Educational and Cultural Affairs, Department 7. Encourage good governance, building and/or networks of women or of State. transparency and accountability. women’s organizations, especially as [FR Doc. 04–5502 Filed 3–10–04; 8:45 am] Up to $4,000,000 of the overall they relate to human rights; BILLING CODE 4710–08–P $9,000,000 referred to in this 2. Address the problem of solicitation may be available for projects disenfranchised youth and the need to in Pakistan. The Bureau anticipates reach out to this group to prevent DEPARTMENT OF STATE awarding between 4–8 grants in growth of extremism; [Public Notice 4650] amounts of $500,000–$1,000,000. 3. Promote political reform programs that would entail support for Central Asia Bureau of Democracy, Human Rights conducting free and fair elections, and Labor Request for Grant The Bureau of Democracy, Human issues of good governance and Proposals: Human Rights and Rights and Labor is interested in corruption; Democratization Initiatives in supporting projects in Central Asia 4. Promote independent media and Countries With Significant Muslim (including Kazakhstan, Kyrgyzstan, access to a diversity of sources of Populations Tajikistan, Turkmenistan and information; Uzbekistan) which focus on the 5. Promote the compatibility of SUMMARY: The Office for the Promotion following activities: democracy with Islam and increased of Human Rights and Democracy of the 1. Promote free and fair elections, political engagement with moderate Bureau of Democracy, Human Rights with emphasis on support for Muslims; and Labor (DRL/PHD) announces an democratically-oriented political parties 6. Promote ethnic and religious open competition for assistance awards. as well as improvement of electoral tolerance initiatives to resolve conflict Organizations may submit grant processes and legislation; and disputes. proposals that focus on promotion of 2. Promote respect for human rights, human rights, political participation, especially advocacy training, Background press freedom, rule of law, women’s monitoring and reporting on law DRL/PHD supports innovative, rights and civil society in countries with enforcement abuses and combating law cutting-edge programs which uphold significant Muslim populations. The enforcement abuses; democratic principles, support and Bureau is particularly interested in 3. Promote rule of law, with an strengthen democratic institutions, proposals that focus on these issues in emphasis on support for an independent promote human rights, and build civil
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society in countries and regions of the Budget Guidelines the Bureau’s Web site at http:// world that are geo-strategically Please refer to the Proposal www.state.gov/g/drl/. important to the U.S. DRL/PHD funds Submission Instructions (PSI) for Notice projects that have an immediate impact complete budget guidelines and The terms and conditions published but that also have potential for formatting instructions. continued funding beyond DRL/PHD in this RFP are binding and may not be resources. Projects must not duplicate or Deadline for Proposals modified by any Bureau representative. simply add to efforts by other entities. Explanatory information provided by All proposals must be received at the the Bureau that contradicts published Project Criteria Bureau of Democracy, Human Rights language will not be binding. Issuance • and Labor by 5 p.m. eastern standard of the RFP does not constitute an award Project implementation should time (e.s.t.) on Wednesday, March 31, begin no earlier than September 30, commitment on the part of the 2004. Please refer to the PSI for specific government. The Bureau reserves the 2004. delivery instructions. • Projects should not exceed two right to reduce, revise, or increase years in duration. Shorter projects with Review Process proposal budgets in accordance with the needs of the program and the more immediate outcomes may receive The Bureau will acknowledge receipt availability of funds. Awards made will preference. of all proposals and will review them • Project activity should take place be subject to periodic reporting and for eligibility. Proposals will be deemed evaluation requirements. Final technical abroad. U.S.-based or exchange projects ineligible if they do not fully adhere to are strongly discouraged. authority for assistance awards resides the guidelines stated herein and in the with the Office of Acquisition • Projects that have a strong academic PSI. Eligible proposals will be subject to Management’s Grants Officer. or research focus will not be highly compliance with Federal and Bureau considered. DRL will not fund health, regulations and guidelines and Notification technology, environmental, or scientific forwarded to Bureau grant panels for Final awards cannot be made until projects unless they have an explicit advisory review. Proposals may also be funds have been appropriated by democracy, human rights or rule of law reviewed by the Office of the Legal Congress, allocated and committed component. Adviser or by other Department through internal Bureau procedures. • Projects should include detailed elements. plans for evaluation and assessment of Dated: March 5, 2004. impact; plans may utilize qualitative Review Criteria Lorne W. Craner, and/or quantitative methods and should Eligible applications will be Assistant Secretary for Democracy, Human address both project outputs and competitively reviewed according to the Rights and Labor, Department of State. outcomes. criteria stated below. Further [FR Doc. 04–5503 Filed 3–10–04; 8:45 am] • Projects should include a follow-on explanation of these criteria is included BILLING CODE 4710–18–P plan that extends beyond the grant in the PSI. These criteria are not rank- period ensuring that Bureau-supported ordered and all carry equal weight in DEPARTMENT OF STATE programs are not isolated events. the proposal evaluation: Quality of the In order to avoid the duplication of program idea; program planning and [Public Notice 4639] activities and programs, proposals ability to achieve program objectives; should also indicate knowledge of multiplier effect/impact; program Meeting of Advisory Committee on similar projects being conducted in the evaluation plan; institution’s record/ International Communications and regions and how the submitted proposal ability/capacity; cost-effectiveness. Information Policy will complement them. FOR FURTHER INFORMATION CONTACT: The SUMMARY: The State Department Applicant/Organization Criteria Office for the Promotion of Human Advisory Committee on International Rights and Democracy of the Bureau of Communications and Information Organizations applying for a grant Democracy, Human Rights and Labor Policy (ACICIP) will meet on March 18, should meet the following criteria: (DRL/PHD). Please specify Karen 2004, from 10 a.m. to 12 noon in Room • Be a U.S. non-profit organization Gilbride 202–647–1458 on all inquiries 1105 of the State Department’s Harry S. meeting the provisions described in and correspondence. Truman Building. The meeting is open Internal Revenue Code section 26 U.S.C. Please read the complete Federal to the public, subject to the conditions 501(c)(3). Register announcement or http:// noted below. Those wishing to attend • Have demonstrated experience www.fedgrants.gov announcement should contact John Finn at 202–647– administering successful projects in the before sending inquiries or submitting 5306 or by e-mail at [email protected]. country/region in which it is proposing proposals. Once the RFP deadline has The purpose of the Advisory to administer a project. passed, Bureau staff may not discuss Committee on International • Have existing, or the capacity to this competition with applicants until Communications and Information develop, active partnerships with in- the proposal review process has been Policy is to provide information and country organization(s). completed. advice to the State Department for the • Organizations that have not development of policies relating to To Download a Solicitation Package via previously received and successfully international telecommunications, Internet administered U.S. government grant information technology, and the funds will be subject to additional The Solicitation Package consists of Internet. The March 18 meeting will scrutiny before an award can be granted. this RFP plus the Proposal Submission decide on establishing subcommittees or Note: Organizations are welcome to submit Instructions (PSI). The PSI contains working groups to focus on specific more than one proposal, but should know detailed award criteria, specific budget geographic regions or technologies. that DRL wishes to reach out to as many instructions, and standard guidelines for Ambassador David A. Gross, U.S. different organizations as possible with its proposal preparation. The PSI may be Coordinator for Communications and limited funds. downloaded from the HRDF section on Information Policy will take part.
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Members of the public may attend governmental associations, and other mechanism for public input regarding these meetings up to the seating interested parties to consider in more stewardship issues. capacity of the room. While the meeting detail those aspects of the draft Further information regarding this is open to the public, admittance to the convention that bear on intellectual advisory committee can be obtained Department of State building is only by property rights and related litigation. from Sandra L. Hill, 400 West Summit means of a pre-arranged clearance list. The current draft of the proposed Hill Drive, WT 11A, Knoxville, In order to be placed on the pre- convention may be found on the Web Tennessee 37902–1499, (865) 632–2333. clearance list, please provide your site of the Hague Conference (http:// Dated: March 3, 2004. name, title, company, social security www.hcch.net) or directly at ftp:// Kathryn J. Jackson, number, date of birth, and citizenship to ftp.hcch.net/doc/workdoc49e.pdf. Executive Vice President, River System John W. Finn at [email protected] no The meetings will be held from 9 a.m. Operations & Environment, Tennessee Valley later than 5 p.m. on Tuesday, March 16, to 5 p.m. on Monday March 29 and from Authority. 2004. All attendees for this meeting 2 p.m. to 5 p.m. on Tuesday March 30, [FR Doc. 04–5451 Filed 3–10–04; 8:45 am] must use the 23rd Street entrance. One at the new headquarters of the U.S. BILLING CODE 8120–08–M of the following valid ID’s will be Patent & Trademark Office: Thomas required for admittance: any U.S. Jefferson Building, 500 Dulany Street, driver’s license with photo, a passport, Building Conference Center (Lobby or a U.S. government agency ID. Non- Level), Alexandria, VA 22313–1450. DEPARTMENT OF TRANSPORTATION U.S. government attendees must be The meetings are open to the public up escorted by Department of State to the capacity of the meeting room. Office of the Secretary personnel at all times when in the Interested persons are invited to attend building. and to express their views. Persons who Aviation Proceedings, Agreements For further information, please wish to have their views considered are Filed the Week Ending February 27, contact John W. Finn, Executive encouraged, but not required, to submit 2004 Secretary of the Committee, at 202–647– written comments in advance of the The following Agreements were filed 5306 or by e-mail at [email protected]. meeting. Written comments should be with the Department of Transportation Dated: March 8, 2004. submitted by e-mail to Jeffrey Kovar at under the provisions of 49 U.S.C. John W. Finn, [email protected]. All comments will be Sections 412 and 414. Answers may be made available to the public by request Executive Secretary, ACICIP, Department of filed within 21 days after the filing of State. to Mr. Kovar via e-mail or by phone the application. (202–776–8420). [FR Doc. 04–5650 Filed 3–10–04; 8:45 am] Docket Number: OST–2004–17175. Persons wishing to attend must notify BILLING CODE 4710–07–P Date Filed: February 23, 2004. Ms. Cherise Reid by e-mail Parties: Members of the International ([email protected]), fax (202–776–8482), Air Transport Association. or by telephone (202–776–8420). DEPARTMENT OF STATE Subject: Mail Vote 353, PTC3 0718 Dated: March 3, 2004. [Public Notice No. 4638] dated 24 February 2004, TC3 Special Jeffrey D. Kovar, Amending Resolution 010k between Secretary of State’s Advisory Assistant Legal Adviser for Private Japan and China (excluding Hong Kong Committee on Private International International Law, Department of State. SAR and Macao SAR) r1–r9. Intended Law: Notice of Meeting [FR Doc. 04–5501 Filed 3–10–04; 8:45 am] effective date: 28 March 2004. BILLING CODE 4710–07–P Docket Number: OST–2004–17209. SUMMARY: There will be public meetings Date Filed: February 26, 2004. of a Study Group on Enforcement of Parties: Members of the International Judgments of the Secretary of State’s TENNESSEE VALLEY AUTHORITY Air Transport Association. Advisory Committee on Private Subject: PTC2 EUR–AFR 0188 dated International Law, from 9 a.m. to 5 p.m. Renewal of the Regional Resource 27 February 2004, Expedited Resolution on Monday March 29 and from 2 p.m. Stewardship Council 002k–eba 5502Special Amending to 5 p.m. on Tuesday March 30, at the Resolution r1–r3. Intended effective new headquarters of the U.S. Patent & Pursuant to the Federal Advisory date: 1 April 2004. Trademark Office: Thomas Jefferson Committee Act (FACA) and 41 CFR Building, 500 Dulany Street, Building 102–3.65, and following consultation Andrea M. Jenkins, Conference Center (Lobby Level), with the Committee Management Program Manager, Docket Operations, Alexandria, VA 22313–1450. Secretariat, General Services Federal Register Liaison. Full Text: The Department of State, in Administration (GSA), notice is hereby [FR Doc. 04–5465 Filed 3–10–04; 8:45 am] conjunction with the U.S. Patent and given that the Regional Resource BILLING CODE 4910–62–P Trademark Office and other federal Stewardship Council (Council) has been agencies, is convening meetings of the renewed for a two-year period beginning Secretary of State’s Advisory Committee February 3, 2004. The Council will DEPARTMENT OF TRANSPORTATION on Private International Law, Study provide advice to the Tennessee Valley Group on Enforcement of Judgments, in Authority (TVA) on issues affecting Federal Aviation Administration order to seek consultations on the TVA’s natural resource stewardship proposed draft Hague Convention on activities. Membership in the National Parks Exclusive Choice of Court Agreements. Numerous public and private entities Overflights Advisory Group Aviation The meetings will bring delegates from are traditionally involved in the Rulemaking Committee many member states of the Hague stewardship of the natural resources of AGENCIES: Federal Aviation Conference on Private International Law the Tennessee Valley region. It has been Administration (FAA), DOT. together with experts from industry, determined that the Council continues ACTION: Notice. trade associations, bar associations, non- to be needed to provide an additional
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SUMMARY: The National Park Service (3) On other measures that might be ACTION: Notice of RTCA Special (NPS) and the Federal Aviation taken to accommodate the interests of Committee 193/EUROCAE Working Administration (FAA), as required by visitors to national parks; and Group 44 meeting. the National Parks Air Tour (4) At the request of the Administrator SUMMARY: Management Act of 2000, established and the Director, safety, environmental, The FAA is issuing this notice the National Parks Overflights Advisory and other issues related to commercial to advise the public of a meeting of Group (NPOAG) in March 2001. The air tour operations over a national park RTCA Special Committee 193/ NPOAG was formed to provide or tribal lands.’’ EUROCAE Working Group 44: Terrain and Airport Databases. continuing advice and counsel with Members of the NPOAG ARC may be respect to commercial air tour allowed certain travel expenses as DATES: The meeting will be held March operations over and near national parks. authorized by section 5703 of title 5, 29–April 2, 2004 from 9 a.m.–5 p.m. On October 10, 2003, the Administrator United States Code, for intermittent ADDRESSES: The meeting will be held at signed Order No. 1110–138 establishing Government Service. Instituto Superior Tecnico (IST), Lisbon, the NPOAG as an aviation rulemaking The current NPOAG ARC is made up Spain. committee (ARC). This notice informs of three members representing the air FOR FURTHER INFORMATION CONTACT: (1) the public of a vacancy on the NPOAG tour industry, four members RTCA Secretariat, 1828 L Street, NW., ARC for a member representing air tour representing environmental interests, Suite 805, Washington, DC 20036; operator interests and invites interested and two members representing Native telephone (202) 833–9339; fax (202) persons to apply to fill the vacancy. American interests. The current 833–9434; Web site http://www.rtca.org. FOR FURTHER INFORMATION CONTACT: members of the NPOAG ARC are Heidi SUPPLEMENTARY INFORMATION: Pursuant Barry Brayer, Executive Resource Staff, Williams (general aviation), Richard to section 10(a)(2) of the Federal Western Pacific Region Headquarters, Larew and Alan Stephen (commercial Advisory Committee Act (Pub. L. 92– 15000 Aviation Blvd., Hawthorne, CA air tour operations), Chip Dennerlein, 463, 5 U.S.C., Appendix 2), notice is 90250, telephone: (310) 725–3800, Charles Maynard, Steve Bosak, and hereby given for a Special Committee Email: [email protected], or Karen Susan Gunn (environmental interests), 193/EUROCAE Working Group 44 Trevino, National Park Service, Natural and Germaine White and Richard meeting. The agenda will include: Sounds Program, 1201 Oakridge Dr., Deertrack (Indian tribes). • March 29: Suite 350, Ft. Collins, CO, 80525, • Opening Plenary Session (Welcome Public Participation in the NPOAG telephone (970) 225–3563, or and Introductory Remarks, Review/ ARC [email protected]. Approval of Meeting Agenda, Review In order to maintain the balanced Summary of Previous Meeting) SUPPLEMENTARY INFORMATION: representation of the group, the FAA • Subgroup 4 (Data Exchange Format) • Background and the NPS invite persons interested in Resolution of Action Items serving on the NPOAG ARC to represent • Presentations The National Parks Air Tour air tour operator interests to contact • Resolve Final Review and Management Act of 2000 (the Act) was either of the persons listed in FOR Comments (FRAC) on draft document, enacted on April 5, 2000, as Public Law FURTHER INFORMATION CONTACT. Requests Interchange Standards for Terrain, 106–181. The Act required the to serve on the NPOAG ARC should be Obstacle, and Aerodrome Mapping Data establishment of the advisory group made in writing and postmarked on or • Resolution of comments within 1 year after its enactment. The before April 12, 2004. The request • March 30: NPOAG was established in March 2001. should indicate whether or not you are • Subgroup 4 (Continue previous day The advisory group is comprised of a an air tour operator, member of an activities) balanced group of representatives of association representing this interest • Final Review and Comments general aviation, commercial air tour group, or have another affiliation with (FRAC) operations, environmental concerns, air tour operations over national parks. • Continued Resolution of comments and Native American tribes. The The request should also state what • March 31: Administrator and the Director (or their expertise you would bring to air tour • Subgroup 4 (Continue previous day designees) serve as ex officio members operator interests while serving on the activities) of the group. Representatives of the NPOAG. The term of service for NPOAG • Final Review and Comments Administrator and Director serve members is 3 years. (FRAC) alternating 1-year terms as chairman of • April 1: Issued in Washington, DC on March 4, • the advisory group. 2004. Subgroup 4 (Continue previous day activities) By Order No. 1110–138, October 10, John M. Allen, • Final Review and Comments 2003, the NPOAG became an aviation Acting Director Flight Standards Service. rulemaking committee (ARC). (FRAC) [FR Doc. 04–5559 Filed 3–10–04; 8:45 am] • April 2: The NPOAG ARC provides ‘‘advice, BILLING CODE 4910–13–P • Closing Plenary Session (Summary information, and recommendations to of Subgroup 4, Assign Tasks, Other the Administrator and the Director— Business, Date and Place of Next (1) On the implementation of this title DEPARTMENT OF TRANSPORTATION Meeting, Adjourn) [the Act] and the amendments made by Federal Aviation Administration Attendance is open to the interested this title; public but limited to space availability. (2) On commonly accepted quiet RTCA Special Committee 193/ With the approval of the chairmen, aircraft technology for use in EUROCAE Working Group 44: Terrain members of the public may present oral commercial air tour operations over a and Airport Databases statements at the meeting. Persons national park or tribal lands, which will wishing to present statements or obtain receive preferential treatment in a given AGENCY: Federal Aviation information should contact the person air tour management plan; Administration (FAA), DOT. listed in the FOR FURTHER INFORMATION
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CONTACT section. Members of the public • WG–6, Automatic Dependent FOR FURTHER INFORMATION CONTACT: may present a written statement to the Surveillance—Broadcast (ADS–B) Randal J. Looney, Environmental committee at any time. Minimum Aviation System Performance Specialist, Federal Highway Issued in Washington, DC, on March 2, Standards (MASPS) Administration, Arkansas Division, 700 2004. • Review Status—Requirements West Capitol Avenue, Room 3130, Little Robert Zoldos, Focus Group Rock, Arkansas, 72201–3298, • Telephone: (501) 324–6430. FAA System Engineer, RTCA Advisory EUROCAE WG–51 Activity Report Committee. • Briefing—Australian ADS–B air- SUPPLEMENTARY INFORMATION: [FR Doc. 04–5557 Filed 3–10–04; 8:45 am] ground Background • Review/Approval Revised DO–282, BILLING CODE 4910–13–M The FHWA, in cooperation with the Minimum Operational Performance Arkansas Highway and Transportation Standards for Universal Access Department, is rescinding the notice of DEPARTMENT OF TRANSPORTATION Transceiver (UAT) Automatic intent to prepare a Supplemental Draft Dependent Surveillance—Broadcast, Environmental Impact Statement Federal Aviation Administration RTCA Paper No. 031–04/SC186–217. (SDEIS) on a proposal to construct the • Review/Approve Change 1 to DO– RTCA Special Committee 186: North Belt Freeway, a four-lane, 260A, Minimum Operational Automatic Dependent Surveillance— divided, fully controlled access facility Performance Standards for 1090 MHz Broadcast (ADS–B) located on new alignment in northern Automatic Dependent Surveillance— Pulaski County. AGENCY: Federal Aviation Broadcast (ADS–B) and Traffic In 1994, a Final Environmental Administration (FAA), DOT. Information Services (TIS–B), RTCA Impact Statement (FEIS) and a Record of ACTION: Notice of RTCA Special Paper No. 032–04/SC186–218. Decision (ROD) identified a selected • Committee 186 meeting. Closing Plenary Session (Date, Place alignment (1A). However, a portion of and Time of Next Meeting, Other this alignment was not compatible with SUMMARY: The FAS is issuing this notice Business, Review Actions Items/Work the City of Sherwood’s Master Street to advise the public of a meeting of Program, Adjourn) Plan, and the project was not included RTCA Special Committee 186: Attendance is open to the interested in the Transportation Improvement Automatic Dependent Surveillance— public but limited to space availability. Program (TIP) developed by Metroplan, Broadcast (ADS–B). With the approval of the chairmen, the responsible Metropolitan Planning DATES: The meeting will be held April members of the public may present oral Organization (MPO). On February 18, 5–9, 2004, starting at 9 a.m. (unless statements at the meeting. Persons 1999, FHWA published a NOI to stated otherwise). wishing to present statements or obtain prepare a SDEIS as part of the ADDRESSES: The meeting will be held at information should contact the person development process for the RTCA, Inc., 1828 L Street, NW., Suite listed in the FOR FURTHER INFORMATION construction of this proposed freeway 805, Washington, DC 20036. CONTACT section. Members of the public project. may present a written statement to the The proposed project will primarily FOR FURTHER INFORMATION CONTACT: committee at any time. serve central Arkansas including Little RTCA Secretariat, 1828 L Street, NW., Issued in Washington, DC, on March 2, Rock, North Little Rock, Sherwood, Suite 805, Washington, DC 20036; Jacksonville, and northern Pulaski telephone (202) 833–9339; fax (202) 2004. Robert Zoldos, County, Arkansas. The SDEIS was to 833–9434; Web site http://www.rtca.org. have addressed a new alignment SUPPLEMENTARY INFORMATION: Pursuant FAA System Engineer, RTCA Advisory alternative (1B) proposed by the City of Committee. to section 10(a)(2) of the Federal Sherwood and three previously studied Advisory Committee Act (Pub. L. 92– [FR Doc. 04–5558 Filed 3–10–04; 8:45 am] alternatives located between the 463, 5 U.S.C., Appendix 2), notice is BILLING CODE 4910–13–M Highway 107/Brockington Road hereby given for a Special Committee interchange and the eastern boundary of 186 meeting. Note: Specific working Camp Robinson near Maryland Avenue DEPARTMENT OF TRANSPORTATION group sessions will be held on April 5, and Batesville Pike. The three 6, 7, 8, & 9. The plenary agenda will Federal Highway Administration previously studied alternatives were include: evaluated in the project’s Draft EIS in • April 8–9: Notice To Rescind a Notice of Intent To 1991 and in the project’s Final EIS in • Opening Plenary Session Prepare a Supplemental Draft 1994. (Chairman’s Introductory Remarks, Environmental Impact Statement The SDEIS was to focus on a limited Review of Meeting Agenda, Review/ (SDEIS): Pulaski Coiunty, AK study area between Batesville Pike and Approval of Previous Meeting Brockington Road in northern Pulaski Summary) AGENCY: Federal Highway County, since this is the portion of the • SC–186 Activity Reports Administration (FHWA), DOT. proposed corridor where several • WG–1, Operations and ACTION: Rescind notice of intent to alternative alignments were still being Implementation prepare a SDEIS. considered. The remaining portions of • WG–2, Traffic Information the selected and approved North Belt Service—Broadcast (TIS–B) SUMMARY: The FHWA is issuing this Freeway alignment to the east toward • WG–3, 1090 MHz Minimum notice to advise the public that the Highway 67 and to the west through Operational Performance Standard Notice of Intent published on February Camp Robinson ending at the I–40/I– (MOPS) 18, 1999, to prepare a Supplemental 430 interchange were to be reviewed • WG–4, Application Technical Draft Environmental Impact Statement only to a level necessary to document if Requirements (SDEIS) for a proposed highway project any substantial changes have taken • WG–5, Universal Access in Pulaski County, Arkansas, is being place since the completion and approval Transceiver (UAT) MOPS rescinded. of the project’s FEIS and ROD.
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A preliminary study of the project regulatory provisions involved, and the hours (9 a.m.–5 p.m.) at the above alignments completed in 2003 nature of the relief being sought. facility. attempted to establish if the local Anyone is able to search the Mississippi Lime Company community and MPO could support the electronic form of all comments originally selected project alternative. FRA Waiver Petition No. FRA–2003– received into any of our dockets by the The public involvement process 16130 name of the individual submitting the associated with this reevaluation Mississippi Lime Company located in comment (or signing the comment, if indicated public opposition for the Ste. Genevieve, Missouri, is seeking a submitted on behalf of an association, originally selected alignment ‘‘Wavier from all applicable provisions business, labor union, etc.). You may alternative. The City of Sherwood and of 49 CFR Sec. 200, et. seq, and any and review DOT’s complete Privacy Act Metroplan, citing the project’s all other applicable statutes, rules, and Statement in the Federal Register incompatibility with local and regional regulations enforced by the Federal published on April 11, 2000 (Volume plans, refused to endorse the originally Railroad Administration.’’ The 65, Number 70; Pages 19477–78). The selected alignment alternative as the Mississippi Lime Company anticipates Statement may also be found at http:// locally preferred route. Therefore, an entering into a nonexclusive agreement dms.dot.gov. SDEIS will be conducted to evaluate all to operate on approximately two miles Issued in Washington, DC on March 5, feasible alternatives, possibly including of trackage owned by the Union Pacific 2004. alignments not evaluated in the project’s Railroad Company (UP) from Milepost Grady C. Cothen, Jr., original DEIS and FEIS. The original 87.0 to Milepost 89.0 on the Mosher Deputy Associate Administrator for Safety NOI for the SDEIS is being rescinded Lead. The applicant states, ‘‘The Mosher Standards and Program Development. because it limited the area of study. A Lead is only used by the UP when (i) UP [FR Doc. 04–5492 Filed 3–10–04; 8:45 am] notice of intent to announce an SDEIS makes deliveries to the Company, (ii) BILLING CODE 4910–06–P with an expanded study area for this UP’s main line track that runs adjacent project will be published subsequent to to the Mississippi River is inaccessible this NOI. due to elevated water levels of the DEPARTMENT OF TRANSPORTATION To ensure that the full range of issues Mississippi River, and (iii) UP delivers National Highway Traffic Safety related to this proposed action and all one to three cars annually to MFA Co- Administration significant issues are identified, Op Exchange, the only other industry comments and suggestions are invited located on the Mosher Lead.’’ Discretionary Cooperative Agreements from all interested parties regarding this Since FRA has not yet completed its To Assist in the Development of Crash action to rescind the NOI published on investigation of the Mississippi Lime Outcome Data Evaluation System February 18, 1999, for the proposed Company petition, the agency takes no North Belt Freeway. Comments or position at this time on the merits of AGENCY: National Highway Traffic questions concerning this proposed stated justifications. Safety Administration, DOT. action should be directed to the FHWA Interested parties are invited to ACTION: Notice of availability— Arkansas Division at the address participate in this proceeding by discretionary cooperative agreements to provided above. submitting written views, data, or assist in the development and use of (Catalog of Federal Domestic Assistance comments. FRA does not anticipate Crash Outcome Data Evaluation System. Program Number 20.205, Highway Planning scheduling a public hearing in connection with the request for a waiver SUMMARY: The National Highway Traffic and Construction. The regulations Safety Administration (NHTSA) implementing Executive Order 12372 of certain regulatory provisions. If any regarding intergovernmental consultation of interested party desires an opportunity announces a discretionary cooperative Federal programs and activities apply to this for oral comment, he or she should agreement program to assist states in the program.) notify FRA, in writing, before the end of development and use of Crash Outcome Issued on: March 2, 2004. the comment period and specify the Data Evaluation System (CODES) and basis for his or her request. solicits applications for projects under Sandra L. Otto, this program from states that have not Division Administrator, FHWA, Little Rock, All communications concerning these proceedings should identify the previously been funded to develop Arkansas. CODES. Under this program, states will [FR Doc. 04–5464 Filed 3–10–04; 8:45 am] appropriate docket number (Docket Number FRA FRA–2003–16130) and link their existing statewide traffic BILLING CODE 4910–22–M must be submitted to the DOT Docket records with injury outcome and charge Management Facility, Room PL–401 data. The linked data will be used to support highway safety decision-making DEPARTMENT OF TRANSPORTATION (Plaza level) 400 Seventh Street, SW., Washington, DC 20590. All documents at the local, regional, and State levels to Federal Railroad Administration in the public docket, including reduce deaths, non-fatal injuries, and Mississippi Lime Company’s detailed health care costs resulting from motor Petitions for Waivers of Compliance waiver request, are also available for vehicle crashes. inspection and copying on the Internet DATES: Applications must be received at In accordance with Title 49 Code of at the docket facility’s Web site at the office designated below on or before Federal Regulations (CFR) section http://dms.dot.gov. April 26, 2004, at 2 p.m. 211.41, and 49 U.S.C. 20103, notice is Communications received within 30 ADDRESSES: Applications must be hereby given that the Federal Railroad days of the date of this notice will be submitted to DOT/National Highway Administration (FRA) has received a considered by FRA before final action is Traffic Safety Administration, Office of request for waiver of compliance with taken. Comments received after that Contracts and Procurement (NPO–220), certain requirements of the Federal date will be considered as far as ATTN: Maxine D. Edwards, 400 7th railroad safety regulations. The practicable. All written communications Street, SW., Room 5301, Washington, individual petition is described below, concerning this proceeding are available DC 20590. All applications submitted including the party seeking relief, the for examination during regular business must include a reference to NHTSA
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Cooperative Agreement Program No. use the linked data to analyze the 1. Coordinate the development and DTNH22–04–H–07020. effectiveness of safety belts and institutionalization of the capability to Applicants shall provide a complete motorcycle helmets. The safety belt/ link state crash and injury outcome data mailing address where Federal Express helmet Report was delivered to to identify the injury and financial mail can be delivered. Congress in February 1996. The success consequences of motor vehicle crashes. FOR FURTHER INFORMATION CONTACT: of the Report led NHTSA to award 2. Utilize this information in crash General administrative questions may research funds in 1996 to three CODES analysis, problem identification, and be directed to Maxine D. Edwards, states (New York, Pennsylvania, and program evaluation to improve Contract Specialist, at the Office of Wisconsin) and three non-CODES states decision-making at the local, state, and Contracts and Procurement. with linked crash and injury data national levels related to preventing or All questions and requests for copies (Alaska, Connecticut, and New Mexico) reducing deaths, injuries, and direct may be directed by e-mail at to develop state-specific applications. medical costs associated with motor [email protected] or by Additional funds became available to vehicle crashes. telephone at (202) 366–4843. expand the number of CODES states. 3. Provide NHTSA with population- Programmatic questions relating to NHTSA awarded CODES linkage grants based linked crash and injury data to this cooperative agreement program in 1997 to Connecticut, New analyze specific highway safety issues should be directed to Barbara Rhea Hampshire, Maryland, North Dakota, in collaboration with the CODES states. CODES Contracting Officer’s Technical South Dakota, Oklahoma, and Nevada 4. Develop data linkage capabilities as Representative (COTR), at NHTSA, and, in 1998, to Iowa, Kentucky, a means of improving the quality of Room 6125, (NPO–123) 400 7th Street, Massachusetts, Nebraska, and South state data that support NHTSA’s SW., Washington, DC 20590, or by e- Carolina. Arizona, Delaware, Minnesota national data. mail at [email protected] or and Tennessee were funded in 1999. State data systems are stronger and by telephone at (202) 366–2714. Georgia and Rhode Island were funded more likely to survive when developed SUPPLEMENTARY INFORMATION: in 2000, and Indiana and Texas in 2002. and supported by state funds. So, this Currently, 27 states have successfully Statement of Work cooperative agreement is not intended implemented the data linkage to fund basic development of state data Background techniques. systems, but rather to enhance their The CODES project also demonstrated value via linkage. States with Crash data alone are unable to convey that linked data have many uses for insufficient state data to perform the the magnitude of the injury and decision-making related to highway CODES linkages are encouraged to use financial consequences of the injuries safety and injury control. In addition to state resources to improve their state resulting from motor vehicle crashes or demonstrating the effectiveness of safety data and qualify for CODES funding. the success of highway safety decision- belts and motorcycle helmets in making to prevent them. Outcome preventing death, injury, and costs, the General Project Requirements information describing what happens to linked data were used to identify The grantees of this cooperative all persons involved in motor vehicle populations at risk for increased injury agreement will be required to: crashes, regardless of injury, are needed. severity or high health care costs, the Person-specific outcome information impact of different occupant behaviors 1. Link statewide population-based is collected at the crash scene and en on outcome, the safety needs at the crash to injury data for any two calendar route by EMS personnel, at the community level, the allocation of years available since 2000 to produce a emergency department, in the hospital, resources for emergency medical linked data file that, if not statewide, and after discharge. When these data are services, the injury patterns by type of reflects a contiguous geographical area computerized and merged statewide, roadway and geographic location, and that contains at least three (3) million they generate a source of population- the benefits of collaboration on data residents and all levels of emergency based data that is available for use by quality. Crash outcome information medical care so that persons involved in state and local traffic safety and public enables decision-makers to target those crashes do not need to be transferred health professionals. Linking these prevention programs that have the most elsewhere except in rare occurrences. records to statewide crash data collected impact on preventing or reducing the The linked data must be representative by police at the scene is the key to injury and financial costs associated and generalizable for highway traffic identifying the relationships among with motor vehicle crashes. safety purposes in the state or within an specific vehicle, crash, or occupant Data linkage fulfills expanded data area in the state. All applicants must be behavior characteristics and their injury needs without the additional expense able to clearly document what data are and financial outcomes. and delay of new data collection. The available and what data are missing and The feasibility of linking crash and linkage process itself provides feedback the significance of the missing data for injury outcome (EMS, emergency about data quality which, when highway traffic safety planning efforts. department, hospital discharge, death improved, enhances the state data for a. Develop a state/area-wide CODES certificate, claims, etc.) data was their original purposes. Thus, it is in that includes outcome information for demonstrated by the CODES project. NHTSA’s interest to encourage states to all persons, injured and uninjured, This project evolved from the qualify for CODES funding. NHTSA involved in police reported motor Intermodal Surface Transportation benefits from the improved quality of vehicle crashes. Efficiency Act of 1991, which mandated the state data, while the states benefit (1) The CODES should consist of that NHTSA prepare a Report to from state-specific injury and financial person-specific crash data linked to Congress about the benefits of safety belt outcome information about motor hospital, death certificate, and either and motorcycle helmet use in terms of vehicle crashes. EMS or emergency department data, mortality, morbidity, injury severity and preferably both. States without EMS or costs. NHTSA provided funding to the Objective emergency department data are eligible States of Hawaii, Maine, Missouri, New The objective of this Cooperative if this type of outpatient information York, Pennsylvania, Utah, and Agreement program is to provide can be obtained from insurance claims Wisconsin to link their state data and resources to the applicant to: data.
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(2) Additional state/area-wide data a. Develop, for access within the discuss implementation of the linkage (driver licensing, vehicle registration, State, a public-use version of the linked software, review the tasks to be citation/conviction records, insurance data, copies of which will be distributed specified in the action plan for the data claims, HMO/managed care, outpatient upon request. linkage and applications of the linked records, etc.) should be linked as b. Develop the resources necessary to data for highway safety or injury control necessary to meet state/area-wide produce and distribute fact sheets and decision-making and discuss the objectives. routine reports, respond to data agendas for the Board of Directors and b. Set up processes for collaboration requests, and provide access to the Advisory Group. among the technical experts who linked data for analytical, management, b. Submit Detailed Action Plan and manage the data files being linked. planning, and other purposes after Schedule. Within 30 days after the c. Assign an agency to be responsible Federal funding ends. briefing meeting, the grantee shall for: c. Use the Internet and other deliver a detailed action plan and (1) Obtaining a computer to be electronic mechanisms to efficiently schedule, covering the remaining dedicated to CODES activities (the distribute and share information funding period, for accomplishing the computer and linkage software generated from the linked data. data linkage and incorporating resources may not be permanently tied 5. Promote collaboration between the information generated from linked data to an existing computer network in such owners and users of the state/area-wide into the processes for highway safety or a way as to preclude their movement in data to facilitate data linkage and state- injury control decision-making. The the future, as directed by the CODES specific applications for linked data. action plan shall be subject to the a. Establish a state/area-wide CODES Board of Directors, to another technical direction and approval of collaborative network. organization interested in continuing NHTSA. (1) Convene a Board of Directors the linkage and developing applications c. Attend Technical Workshops. All consisting of the data owners and major for the linked data that improve grantees together shall attend two users of the state/area-wide data. The highway safety; technology assistance workshops during CODES Board of Directors will be project performance at locations (2) Implementing CODES 2000 responsible for managing and convenient to the majority of CODES probabilistic linkage software and institutionalizing the linked data, grantees. Each workshop will be specified statistical techniques to establishing the data release policies for organized to provide technical perform the linkage of the crash and the linked data, supporting the activities assistance, share data linkage injury state data; of the grantee, ensuring that data linkage experiences, develop standardized (3) Validating the linkage results via and application activities are formats, review the proposed state- the use of imputation techniques; appropriately coordinated within the specific highway safety applications of (4) Analyzing the linked data; and, state/area, and resolving common issues linked data, and resolve common (5) Cross-training sufficient staff to related to data accessibility, availability, problems. ensure continuation of the linkage completeness, quality, confidentiality, d. Progress Report. Grantee shall capability when unexpected changes transfer, ownership, fee for service, submit quarterly progress reports. occur in organizational priorities or management, etc. The CODES Board of During the period of performance, the personnel during or after the project Directors shall meet at least once a grantee will provide letter-type reports period. month either in person or via to the COTR. These reports will d. Document the file preparation, conference call. compare what was proposed in the linkage and validation processes so that (2) Convene a CODES Advisory Group Action Plan with actual the linkage can be repeated efficiently consisting of the CODES Board of accomplishments during the past during subsequent years after Federal Directors and other stakeholders quarter; what commitments have been funding ends and provide evidence of interested in the use of linked data to generated; what follow up and state- this documentation. support highway safety, injury control, level support is expected; what e. Provide NHTSA a version of the EMS, etc. The CODES Advisory Group problems have been experienced and linked data file, per NHTSA’s will be informed of the results of the what may be needed to overcome the guidelines, including documentation of data linkage, application of the data for problems; and what is specifically the file structure and its conformance decision-making, the quality of the planned to be accomplished during the with State laws and regulations state/area-wide data for linkage and the next quarter. These reports will be governing patient/provider quality of the linked data for analysis. submitted seven days after the end of confidentiality. The CODES Advisory Group shall meet each quarter. Minutes of the meetings of 2. Use the linked data to influence in person twice a year. the Board of Directors during the highway traffic safety and injury control b. Promote coordination of the various quarter, and any CODES applications decision-making by implementing at stakeholders through use of the Internet, such as reports, fact sheets or other least one application of linked data that teleconferencing, joint meetings, and publications must be attached to the is expected to have a significant impact other mechanisms to ensure frequent Progress Report. on highway safety planning or a positive communication among all parties to e. Develop a plan to institutionalize impact on reducing death, injury, and minimize the expense of travel. the data linkage and applications for direct medical costs. 6. Work collaboratively with NHTSA linked data after Federal funding ends. 3. Use the linked data to prepare to implement the Cooperative By the end of the 15th month of management reports using a format Agreement. funding, each grantee shall submit a standardized by NHTSA for a national a. Attend Initial Briefing Meeting. long-range plan and schedule to CODES report. Each grantee shall attend a briefing institutionalize data linkage and the use 4. Develop the computer programs meeting (date and time to be scheduled of linked data for highway safety and needed to translate the linked data into within 30 days after the award) in injury control decision-making within information useful for highway traffic Washington, DC, with NHTSA staff. The the state. safety and injury control at the local, purpose of the meeting will be to review f. Project Report. The grantee shall regional, or state/area-wide level. the goals and objectives of the project, deliver to NHTSA, at the end of the
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project, a final report describing the Number of Cooperative Agreements, Application Procedure results of the data linkage process, and Award Amounts, and Period of Support Each applicant must submit one the applications of the linked data original and four (4) copies of the generated during the project. This report The project study effort described in this announcement will be supported application package to: DOT/National will follow guidelines provided by the Highway Traffic Safety Administration, COTR. through the award of up to three (3) Cooperative Agreements, depending Office of Contracts and Procurement NHTSA Involvement upon the merit of the applications (NPO–220), ATTN: Maxine D. Edwards, received and the availability of funding. 400 7th Street, SW., Room 5301, NHTSA will be involved in all Washington, DC 20590. Applications activities undertaken as part of the A total of $750,000 will be available for this effort. Project efforts involving must be typed on one side of the page Cooperative Agreement program and only. will: linkage of the state/area-wide data and applications for the linked data must be Applications must include a reference 1. Provide a Contracting Officer’s to NHTSA Cooperative Agreement Technical Representative (COTR) to completed within twenty-one months after funding. Program Number DTNH22–04–H– participate in the planning and 07020. Only complete application management of the Cooperative Eligibility Requirements packages received on or before 2 p.m. on Agreement and coordinate activities April 26, 2004, will be considered. between the grantee and NHTSA. The grantee must be a state agency 2. Provide, at no cost to the grantee, involved with highway traffic safety, Application Contents training and technical assistance by a such as a State Highway Safety Office, 1. The application package must be CODES expert for up to two weeks on- Department of Transportation or other submitted with OMB Standard Form site and off-site during the project to State agency with demonstrated 424 (REV. 7–97, including 424A and assist the grantee in preparing the files activities in the highway traffic safety 424B), Application for Federal for linkage, implementing probabilistic areas, to ensure active involvement by Assistance, with the required linkage and other statistical techniques, highway traffic safety stakeholders. information filled in and assurances validating the linkage results, States that have previously been funded signed (SF 424B). While the Form 424A developing applications for the linked to develop CODES are not eligible. Only deals with budget information and data, and organizing the CODES Board one application should be submitted for Section B identifies Budget Categories, of Directors and Advisory Group. a state. Because this Cooperative the available space does not permit a 3. Develop a format in which the Agreement program requires extensive level of detail that is sufficient to linked data and supporting collaboration among the data owners in provide for a meaningful evaluation of documentation will be delivered to order to achieve the program objectives, the proposed total costs. A NHTSA. it is envisioned that the grantee agency supplemental sheet shall be provided 4. Conduct Initial Briefing at NHTSA may need to actively involve the data which presents a detailed breakdown of Headquarters in Washington, D.C. (Date owners in the development of the the proposed costs (direct labor, and time to be scheduled within 30 days formal application and may need to sub- including labor category, level of effort, after the award.) The purpose of the contract activities with at least one of and rate; direct materials including meeting will be to review the goals and them to implement a successful CODES. itemized equipment; travel and objectives of the project, discuss While the general eligibility transportation, including projected trips implementation of the linkage software, requirements are broad, applicants are and number of people traveling; identify the tasks to be specified in the advised that this Cooperative Agreement subcontractors/subgrants, with similar action plan for the data linkage and program is not designed to support basic detail, if known; and overhead), as well applications of the linked data for developmental efforts. Although no as any costs the applicant proposes to highway safety or injury control single organization within any state or contribute or obtain from other sources decision-making, and discuss agendas area within the state has all of the in support of the project. Applicants for the Board of Directors and Advisory required data capabilities, the shall assume that awards will be made Group. application should demonstrate strong by July 2, 2004 and should prepare their 5. Conduct two Technical Assistance collaborative agreements with the data applications accordingly. workshops for the purposes of technical owners and access to at least the state/ 2. The application shall include a assistance, technology transfer. Each area-wide crash, hospital, death program narrative statement of not more workshop will be organized to share certificate, and either EMS or emergency than 20 pages, which addresses the data linkage experiences, develop department data, or both, by the time of following as a minimum: standardized formats, review the the award. States/areas that collect at a. A brief description of the state/area proposed state-specific highway safety least the date of birth and ZIP Code of in terms of its highway safety and injury applications of linked data, and resolve residence on their crash data and have control decision-making processes for common problems. Locations for the state/area-wide health and/or vehicle planning, performance monitoring and workshops will be determined based on insurance claims information may be other functions aimed at reducing death, the location of the Grantees. However, eligible, in spite of the lack of EMS or injury, and costs of injuries resulting for the purpose of cost estimation, emergency department information, if from motor vehicle crashes. This assume the workshops will be held in the claims data include everyone description should indicate how linked Washington, DC. involved in motor vehicle crashes. In data would make a difference to the 6. Collaboratively work with the state addition, it is important that the decision-making processes. when using the state’s linked data to application indicate the level of b. A brief description of the existing analyze and report on specific highway commitment by the state, in terms of crash and injury outcome data files. safety issues. funding and/or shared resources, to Applicants will link state/area-wide 7. When appropriate, NHTSA will meet program objectives, particularly population-based crash data to EMS publish state-specific reports on CODES institutionalization of the data linkage (and/or emergency department or applications. and applications for linked data. insurance claims), hospital discharge
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and death certificate data to obtain claims, etc., are encouraged to meet persons injured by police-reported injury and financial outcomes for priorities for highway safety and injury severity level (killed, incapacitating persons injured in motor vehicle crashes control decision-making. The following injury, non-incapacitating injury, for any two calendar years of data information should be reported for each possible injury, unknown if injured), available since 2000. Linkages to year of the state/area-wide data state/area-wide. census, other traffic records (vehicle proposed for linkage: (2) Information about the current registration, driver licensing, roadway, (1) The total crashes, total persons status of the data files to be linked, conviction/citation, etc.), insurance involved in crashes and the total recorded using the format below:
Month and year Can remaining Reporting thresh- Rate of compli- Data years avail- most recent data Percent of records records be com- Data files old (A) ance with (A) able to be linked year will be avail- computerized puterized? (2000–2002) able (Y/N)
Crash ......
EMS ......
ED ......
Hospital ......
Death Certificate ....
Other ......
(3) The data elements available to necessary to support information about of state/area-wide data or use of linked identify persons and crashes and the data linkage, applications for linked data for decision-making. missing data rate for each. data or institutionalization discussed in c. A list of major activities in c. A brief description of how staff the application. Do not send copies of chronological order and a time line to from the various data owners will be brochures, documents, etc., developed show the expected schedule of cross-trained in the CODES linkage to as the result of a collaborative effort in accomplishments and their target dates. compensate for potential future changes the state/area. The appendix should d. Descriptions of the proposed in organizational priorities and include the following: project personnel as follows: personnel. a. Letters of support from each (1) Project Director: Include a resume d. A brief description of the process proposed member of the CODES Board along with a description of the director’s to be used to ensure adequate of Directors. A letter of support should leadership capabilities to make the documentation of the data files and reflect the signer’s level of commitment various stakeholders work together. linkage process. to the CODES project and thus should (2) Key personnel proposed for the e. A brief description of how the not be a form letter. The letter of data linkage and applications of linked linked data will be converted into support should document: data, and other personnel considered information useful for the highway (1) Why linked data are important to critical to the successful safety and injury control decision- the agency. accomplishment of this project: include making processes for the purpose of (2) The priority assigned by the a brief description of qualifications, reducing death, injury, and costs agency to obtain linked data compared employment status (permanent full-time resulting from motor vehicle crashes. to other responsibilities. or part-time, contractor full-time or part- Describe: (1) The different types of decision- (3) The agency’s level of commitment time, other) in the organization, and making processes, currently being in terms of the number of staff and the respective organizational utilized in the state/area, that identify dollars or shared resources which will responsibilities. The proposed level of highway traffic safety and injury control be available to support and effort in performing the various objectives and prioritize prevention institutionalize CODES. activities should also be identified. programs that have the most impact on (4) The agency’s willingness to e. A brief description of the reducing death, injury and direct collaborate with other data owners to applicant’s organizational experience in medical costs associated with motor support shared ownership of the linked performing similar or related efforts, vehicle crashes; and data. and the priority that will be assigned to (2) Why linked data are needed to (5) The agency’s permission to this project compared to the make these decision-making processes collaborate with NHTSA during the organization’s other responsibilities. more effective and how the data will be project and to release the linked data (or f. A brief description of any potential incorporated. description of policies which would delays in implementing the project f. A brief description of each data restrict transfer) to NHTSA at the end of because of requirements for legislative owner member of the CODES Board of the project. approval before CODES funds can be Directors including the process that b. A brief description or letters of expended. must be implemented to access the support should be included for the other g. Data Use Agreement. A description owner’s data. stakeholders to be represented on the of the existing State laws and Privacy 2. The application shall include an CODES Advisory Group. The letters of Act regulations governing patient/ appendix. A large appendix is strongly support should indicate the provider confidentiality in the data files discouraged. Materials not listed below stakeholder’s need for the linked data, being linked that would restrict use of should be included only if it is and willingness to facilitate the linkage the data for linkage at the state level
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and/or for transfer of the CODES linked An organizational representative of (2) The time period for obtaining the data to NHTSA for its use. the Governors Highway Safety different files required for linkage. Association will be assisting in (3) The milestones for completing the Application Review Process and NHTSA’s technical evaluation process. various phases of the probabilistic Evaluation Factors linkage and validation processes. Initially, all application packages will Special Award Selection Factors (4) The milestones for proposed be reviewed to confirm that the After evaluating all applications meeting schedules and actions by the applicant is an eligible recipient and to received, in the event that insufficient Board of Directors and Advisory Group. ensure that the application contains all funds are available to award to all (5) Date(s) for providing the linked of the items specified in the Application meritorious applicants, NHTSA may data to NHTSA. Content section of this announcement. consider the following special award (6) The milestones for implementing Each complete application from an factors in the award decision: the applications. eligible recipient will then be evaluated 1. Priority may be given to those b. Quarterly Progress Report. During by an Evaluation committee. The applicants that have statewide data the performance, the grantee will applications will be evaluated using the available for linkage. provide letter-type reports to the following criteria: 2. Priority may be given to applicants NHTSA COTR. These reports will 1. Understanding the intent of the who have the highest probability of compare what was proposed in the program (20%). The applicant’s maintaining the collaborative network Action Plan with actual recognition of the importance of CODES of data owners and users, of accomplishments during the past to obtain injury and financial outcome institutionalizing the linkage of the quarter; what commitments have been data that are necessary for a crash and injury outcome data on a generated; what follow-up and state- comprehensive evaluation of the impact routine basis, and of continuing to level support is expected; what of highway safety and injury control respond to data requests after the project problems have been experienced and countermeasures. The applicant’s is completed. what may be needed to overcome the understanding of the importance of problems; and what is specifically 3. Priority may be given to an developing CODES as a meaningful and planned to be accomplished during the applicant on the basis that the appropriate strategy for improving next quarter. Copies of the fact sheets, application fits a profile of providing traffic records capabilities and ensuring management reports and other CODES NHTSA with a broad range of the continuation of CODES after publications should be included with population densities (rural through completion of this project. the Quarterly Progress Report. These metropolitan) with different highway 2. Technical approach for project reports will be submitted seven days safety needs. completion (40%). The reasonableness after the end of each quarter. Because 4. Priority may be given to an and feasibility of the applicant’s the security process for scanning mail at applicant who currently provides, or approach for successfully achieving the NHTSA causes the pages of published agrees to provide, state crash data objectives of the project within the documents to stick together, electronic, annually to NHTSA’s State Data System. required time frame. The rather than printed, versions of the appropriateness and feasibility of the Terms and Conditions of the Award state-specific publications should be applicant’s proposed plans for data sent so they can be distributed via 1. Prior to award, each grantee must linkage and applications for the linked NHTSA’s CODES Web site. comply with the certification data. Evidence that the applicant has the c. Board of Directors and Advisory requirements of 49 CFR part 20, necessary authorization and support Group Meetings. Copies of the agenda Department of Transportation New from data owners to access injury and and minutes for each Board of Directors Restrictions on Lobbying, and 49 CFR traffic records state/area-wide data, and Advisory Group Meetings held part 29, Department of Transportation particularly total charges and during the quarter shall be attached to Government-wide Debarment and information about type and severity of the Progress Report submitted to Suspension (Non-procurement) and injury, which are not routinely available NHTSA. for highway safety analyses, and the Government-wide Requirements for d. Institutionalization Plan. The authorization to collaborate with Drug Free Workplace (Grants). In grantee shall deliver to NHTSA, by the NHTSA. addition, grantees must certify that data end of the 15th month of funding, a 3. Project personnel (20%). The release agreements have been signed by long-range plan and schedule to adequacy of the proposed personnel to the owners of the data files being linked institutionalize data linkage and the use successfully perform the project study, to transfer the CODES linked database to of linked data for highway safety and including qualifications and experience NHTSA, according to NHTSA injury control decision-making within (both general and project related), the specifications. the state. various disciplines represented, and the 2. Reporting Requirements and e. Project Report. The grantee shall relative level of effort proposed for the Deliverables: deliver to NHTSA, at the end of the professional, technical and support a. Detailed Action Plan and Schedule. project, a final report that describes the staff. Within 30 days after the briefing results of the data linkage process, and 4. Organizational capabilities (20%). meeting, the grantee shall deliver a the applications of the linked data. The The adequacy of organizational detailed action plan and schedule for report shall follow the content outline resources and experience to successfully accomplishing the data linkage and mandated by NHTSA and include the manage and perform the project, applications of linked data for decision- following: particularly to support the collaborative making, showing any revisions to the (1) A description of the state/area network and respond to the increasing approach proposed in the grantee’s wide linked crash and injury data; demand for access to the linked data. application. This detailed action plan (2) A description of the file The proposed coordination with and will be subject to the approval of preparation; use of other organizational support and NHTSA and will describe the following: (3) A description of the linkage, resources, including other sources of (1) The personnel who will perform validation, imputation processes and financial support. the tasks. results;
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(4) A description of the extent of the death, injury, injury severity or costs An original and 10 copies of all documentation and how the resulting from motor vehicle crashes. pleadings, referring to STB Finance documentation will facilitate linkage in Electronic versions of the state-specific Docket No. 34472, must be filed with subsequent years; publications should be sent so they can the Surface Transportation Board, 1925 (5) A discussion of the limitations of be distributed via NHTSA’s CODES Web K Street, NW., Washington, DC 20423– the linked data and subsequent site. 0001. Also, a copy of each pleading applications of these data; 3. During the effective performance must be served on Rose-Michele (6) A description of the applications period of Cooperative Agreements Weinryb, 1300 19th Street, NW., 5th of linked data implemented for awarded as a result of this Floor, Washington, DC 20036. decision-making and results of the announcement, the agreement shall be CBRC is directed to serve a copy of decision-making; subject to the National Highway Traffic this notice on all shippers on the line (7) A description of how the data Safety Administration’s General and on Lewis & Clark Railway Company linkage and use of linked data for Provisions for Assistance Agreements. within 10 days after publication in the decision-making has been Joseph S. Carra, Federal Register and to certify to the institutionalized for decision-making; Board that it has done so. (8) A description of the Director for National Center for Statistics and Analysis, National Highway Traffic Safety Board decisions and notices are documentation created to facilitate Administration. repeating of the linkage process and an available on our Web site at [FR Doc. 04–5440 Filed 3–10–04; 8:45 am] estimate of how much time is needed to www.stb.dot.gov. repeat the linkage in subsequent years; BILLING CODE 4910–12–P Decided: March 3, 2004. (9) A copy of the public-use formats By the Board, David M. Konschnik, that were successful for incorporating DEPARTMENT OF TRANSPORTATION Director, Office of Proceedings. linked data into the decision-making Vernon A. Williams, processes for highway safety and injury Surface Transportation Board Secretary. control; [FR Doc. 04–5258 Filed 3–10–04; 8:45 am] (10) A copy of the management [STB Finance Docket No. 34472] BILLING CODE 4915–01–P reports prepared using the standardized Columbia Basin Railroad Company, format for the national CODES report; Inc.—Lease and Operation and, Exemption—Clark County, WA DEPARTMENT OF TRANSPORTATION (11) A copy of a state-specific application using the linked data that Columbia Basin Railroad Company, Surface Transportation Board had a direct impact on highway safety Inc. (CBRC), a Class III rail carrier, has planning or improved highway safety filed a verified notice of exemption [STB Finance Docket No. 33407] outcome in terms of reduced deaths, under 49 CFR 1150.41 to acquire by injuries, injury severity and costs. lease and to operate approximately 14 Dakota, Minnesota & Eastern Railroad f. CODES Linked Database. The miles of rail line owned by Clark Corporation Construction Into the grantee shall deliver to NHTSA after County, WA (the County), between Powder River Basin linkage, at the date specified in the milepost 0.0 at Vancouver Junction, Action Plan, the CODES linked WA, and milepost 14.1 at Battle Ground, In a decision served January 30, 2002, databases. NHTSA will use the data to WA.1 the Board gave approval to the Dakota, help facilitate the development of data CBRC certifies that its projected Minnesota & Eastern Railroad linkage capabilities at the state/area- revenues as a result of this transaction Corporation to construct and operate a wide level and to encourage use of the will not result in the creation of a Class 280-mile rail line into the Powder River linked data for decision-making. II or a Class I rail carrier. The Basin of Wyoming. The Board imposed The deliverables will include: transaction was scheduled to be extensive conditions to mitigate certain (1) The database in an electronic consummated on or after February 20, anticipated adverse environmental media and format acceptable to NHTSA, 2004, the effective date of the impacts, and also established an including all persons, regardless of exemption. environmental oversight period. On injury severity (none, fatal, non-fatal), If the notice contains false or appeal, the United States Court of involved in a reported motor vehicle misleading information, the exemption Appeals for the Eighth Circuit vacated crash for any two calendar years of is void ab initio. Petitions to revoke the and partially remanded the Board’s available data beginning in 2000, and exemption under 49 U.S.C. 10502(d) decision. Mid States Coalition for including injury and financial outcome may be filed at any time. The filing of Progress v. STB, 345 F.3d 520 (8th Cir. information for those who are linked. a petition to revoke will not Oct. 2, 2003). The court upheld the (2) A copy of the file structure for the automatically stay the transaction. Board’s decision with respect to all linked data file. transportation issues, but remanded the (3) Documentation of the definitions 1 Lewis & Clark Railway Company (Lewis & case for further Board review on certain and file structure for each of the data Clark), a Class III rail carrier, was authorized to conduct operations over the line pursuant to a lease environmental issues. Petitions for elements contained in the linked data agreement. See Lewis & Clark Railway Company— rehearing of the court’s decision were files. Exemption Operation—Chelatchie Prairie Railroad, denied on January 30, 2004. (4) An analysis of the quality of the Inc., Finance Docket No. 31042 (ICC served May 22, Accordingly, the Board will address the linked data and a description of any 1987), and Lewis & Clark Railway Company—Lease and Operation Exemption—in Clark County, WA, remanded issues consistent with the data bias that may exist, based on an STB Finance Docket No. 33325 (STB served Jan. 15, decision of the court of appeals. analysis of the false positive and false 1997). By letter dated January 30, 2004, the County Dated: March 3, 2004. negative linked records. notified Lewis & Clark that CBRC will be the new g. One state-specific application of the operator. By letter filed February 18, 2004, the Vernon A. Williams, County notified the Board that Lewis & Clark’s lease Secretary. linked data that has an impact on the agreement expired on January 31, 2004, that the state’s highway safety planning or County was in the process of changing operators, [FR Doc. 04–5493 Filed 3–10–04; 8:45 am] program efforts designed to reduce and that CBRC will be the new operator. BILLING CODE 4915–01–P
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DEPARTMENT OF TRANSPORTATION formal expressions of intent to file an By the Board, David M. Konschnik, OFA under 49 CFR 1152.27(c)(2),3 and Director, Office of Proceedings. Surface Transportation Board trail use/rail banking requests under 49 Vernon A. Williams, Secretary. [STB Docket No. AB–6 (Sub-No. 406X)] CFR 1152.29 must be filed by March 22, 2004. Petitions to reopen or requests for [FR Doc. 04–5259 Filed 3–10–04; 8:45 am] The Burlington Northern and Santa Fe public use conditions under 49 CFR BILLING CODE 4915–01–P Railway Company—Abandonment 1152.28 must be filed by March 31, Exemption—in Reno County, KS 2004, with the Surface Transportation Board, 1925 K Street, NW., Washington, DEPARTMENT OF THE TREASURY The Burlington Northern and Santa Fe DC 20423–0001. Railway Company (BNSF) has filed a Alcohol and Tobacco Tax and Trade A copy of any petition filed with the notice of exemption under 49 CFR part Bureau 1152 subpart F—Exempt Abandonments Board should be sent to BNSF’s to abandon a line of railroad between representative: Michael Smith, Freeborn Proposed Collection; Comment BNSF milepost 0.62 and milepost 3.50, & Peters, 311 S. Wacker Dr., Suite 3000, Request near South Hutchinson, in Reno County, Chicago, IL 60606–6677. KS, a distance of approximately 2.88 If the verified notice contains false or ACTION: Notice and request for miles. The line traverses United States misleading information, the exemption comments. Postal Service Zip Codes 67501 and is void ab initio. SUMMARY: The Department of the 1 67505. BNSF has filed an environmental Treasury, as part of its continuing effort BNSF has certified that: (1) No local report which addresses the to reduce paperwork and respondent traffic has moved over the line for at abandonment’s effects, if any, on the burden, invites the general public and least 2 years; (2) there is no overhead environment and historic resources. other Federal agencies to take this traffic to be rerouted; (3) no formal SEA will issue an environmental opportunity to comment on proposed complaint filed by a user of rail service assessment (EA) by March 16, 2004. and/or continuing information on the line (or by a state or local Interested persons may obtain a copy of collections, as required by the government entity acting on behalf of the EA by writing to SEA (Room 500, Paperwork Reduction Act of 1995, such user) regarding cessation of service Surface Transportation Board, Public Law 104–13 (44 U.S.C. over the line either is pending with the Washington, DC 20423–0001) or by 3506(c)(2)(A)). Currently, the Alcohol Board or with any U.S. District Court or calling SEA, at (202) 565–1539. and Tobacco Tax and Trade Bureau, has been decided in favor of (Assistance for the hearing impaired is within the Department of the Treasury, complainant within the 2-year period; available through the Federal is soliciting comments concerning and (4) the requirements at 49 CFR Information Relay Service (FIRS) at 1– ‘‘Notice of Release of Tobacco Products, 1105.7 (environmental reports), 49 CFR 800–877–8339.) Comments on Cigarette Papers, or Cigarette Tubes.’’ 1105.8 (historic reports), 49 CFR environmental and historic preservation DATES: We must receive written 1105.11 (transmittal letter), 49 CFR matters must be filed within 15 days comments on or before May 10, 2004 to 1105.12 (newspaper publication), and after the EA becomes available to the be assured of consideration. 49 CFR 1152.50(d)(1) (notice to public. ADDRESSES: governmental agencies) have been met. Direct all written comments As a condition to this exemption, any Environmental, historic preservation, to Sandra L. Turner, Alcohol and employee adversely affected by the public use, or trail use/rail banking Tobacco Tax and Trade Bureau, 1310 G abandonment shall be protected under conditions will be imposed, where Street, NW., Room 200–E, Washington, Oregon Short Line R. Co.— appropriate, in a subsequent decision. DC 20220. FOR FURTHER INFORMATION CONTACT: Abandonment—Goshen, 360 I.C.C. 91 Pursuant to the provisions of 49 CFR Requests for additional information or (1979). To address whether this 1152.29(e)(2), BNSF shall file a notice of copies of the form(s) and instructions condition adequately protects affected consummation with the Board to signify should be directed Sandra L. Turner, employees, a petition for partial that it has exercised the authority Alcohol and Tobacco Tax and Trade revocation under 49 U.S.C. 10502(d) granted and fully abandoned the line. If Bureau, 1310 G Street, NW., Room 200– must be filed. consummation has not been effected by Provided no formal expression of E, Washington, DC 20220; telephone BNSF’s filing of a notice of 202–927–2400. intent to file an offer of financial consummation by March 11, 2005, and SUPPLEMENTARY INFORMATION: assistance (OFA) has been received, this there are no legal or regulatory barriers Title: Notice of Release of Tobacco exemption will be effective on April 10, to consummation, the authority to Products, Cigarette Papers, or Cigarette 2004, unless stayed pending abandon will automatically expire. reconsideration. Petitions to stay that do Tubes. not involve environmental issues,2 Board decisions and notices are OMB Number: 1513–0025. available on our Web site at Form Number: TTB F 5200.11. Abstract: The form documents 1 Pursuant to 49 CFR 1152.50(d)(2), the railroad www.stb.dot.gov. releases of tobacco products and must file a verified notice with the Board at least Decided: March 3, 2004. 50 days before the abandonment or discontinuance cigarette papers and tubes from customs is to be consummated. The applicant initially custody and returns of such articles to indicated a proposed consummation date of April Environmental Analysis (SEA) in its independent a manufacturer or export warehouse 9, 2004, but because the verified notice was filed investigation) cannot be made before the on February 20, 2004, consummation may not take exemption’s effective date. See Exemption of Out- shipment for use in the United States. place prior to April 10, 2004. By facsimile filed on of-Service Rail Lines, 5 I.C.C.2d 377 (1989). Any The form is also used to ensure February 24, 2004, applicant’s representative request for a stay should be filed as soon as possible compliance with laws and regulations at confirmed that the consummation date will be April so that the Board may take appropriate action before the time of transaction and for post 10, 2004. the exemption’s effective date. 2 The Board will grant a stay if an informed 3 Each OFA must be accompanied by the filing audit examination. decision on environmental issues (whether raised fee, which currently is set at $1,100. See 49 CFR Current Actions: There are no changes by a party or by the Board’s Section of 1002.2(f)(25). to this information collection and it is
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being submitted for extension purposes DATES: We must receive written DEPARTMENT OF THE TREASURY only. comments on or before May 10, 2004 to Type of Review: Extension. be assured of consideration. Alcohol and Tobacco Tax and Trade Affected Public: Business or other for- ADDRESSES: Direct all written comments Bureau profit. to Sandra L. Turner, Alcohol and Proposed Collection; Comment Tobacco Tax and Trade Bureau, 1310 G Estimated Number of Respondents: Request 153. Street, NW, Room 200–E, Washington, Estimated Total Annual Burden DC 20220. ACTION: Notice and request for Hours: 306. FOR FURTHER INFORMATION CONTACT: comments. Requests for additional information or Request for Comments copies of the form(s) and instructions SUMMARY: The Department of the Comments submitted in response to should be directed Sandra L. Turner, Treasury, as part of its continuing effort this notice will be summarized and/or Alcohol and Tobacco Tax and Trade to reduce paperwork and respondent included in the request for OMB Bureau, 1310 G Street, NW., Room 200 burden, invites the general public and approval. All comments will become a E, Washington, DC 20220; telephone other Federal agencies to take this matter of public record. Comments are 202–927–2400. opportunity to comment on proposed invited on: (a) Whether the collection of SUPPLEMENTARY INFORMATION: and/or continuing information information is necessary for the proper Title: Usual and Customary Business collections, as required by the performance of the functions of the Records Maintained by Brewers. Paperwork Reduction Act of 1995, agency, including whether the OMB Number: 1513–0058. Public Law 104–13 (44 U.S.C. information shall have practical utility; Recordkeeping Requirement ID 3506(c)(2)(A)). Currently, the Alcohol (b) the accuracy of the agency’s estimate Number: TTB REC 5130/1. and Tobacco Tax and Trade Bureau, of the burden of the collection of Abstract: TTB audits brewers’ records within the Department of the Treasury, information; (c) ways to enhance the to verify production of beer and cereal is soliciting comments concerning quality, utility, and clarity of the beverage and to verify the quantity of ‘‘Marks on Equipment and Structures information to be collected; (d) ways to beer removed subject to tax and and Marks and Labels on Containers of minimize the burden of the collection of removed without payment of tax. Beer.’’ information on respondents, including Current Actions: There are no changes DATES: We must receive written through the use of automated collection to this information collection and it is comments on or before May 10, 2004, to techniques or other forms of information being submitted for extension purposes be assured of consideration. technology; and (e) estimates of capital only. ADDRESSES: Direct all written comments Type of Review: Extension. to Sandra L. Turner, Alcohol and or start-up costs and costs of operation, Affected Public: Business or other for- Tobacco Tax and Trade Bureau, 1310 G maintenance, and purchase of services profit. to provide information. Estimated Number of Respondents: Street, NW., Room 200 E, Washington, Dated: February 20, 2004. 1400. DC 20220. William H. Foster, Estimated Total Annual Burden FOR FURTHER INFORMATION CONTACT: Chief, Regulations and Procedures Division. Hours: One (1). Requests for additional information or copies of the form(s) and instructions [FR Doc. 04–5435 Filed 3–10–04; 8:45 am] Request for Comments should be directed to Sandra L. Turner, BILLING CODE 4810–31–P Comments submitted in response to Alcohol and Tobacco Tax and Trade this notice will be summarized and/or Bureau, 1310 G Street, NW., Room 200 DEPARTMENT OF THE TREASURY included in the request for OMB E, Washington, DC 20220; telephone approval. All comments will become a 202–927–2400. Alcohol and Tobacco Tax and Trade matter of public record. Comments are SUPPLEMENTARY INFORMATION: Bureau invited on: (a) Whether the collection of Title: Marks on Equipment and information is necessary for the proper Structures and Marks and Labels on Proposed Collection; Comment performance of the functions of the Containers of Beer. Request agency, including whether the OMB Number: 1513–0086. information shall have practical utility; Recordkeeping Requirement ID ACTION: Notice and request for (b) the accuracy of the agency’s estimate Number: TTB REC 5130/3 Marks on comments. of the burden of the collection of Equipment and Structures and TTB REC information; (c) ways to enhance the 5130/4 Marks and Labels on Containers SUMMARY: The Department of the quality, utility, and clarity of the of Beer. Treasury, as part of its continuing effort information to be collected; (d) ways to Abstract: Marks, signs and to reduce paperwork and respondent minimize the burden of the collection of calibrations are necessary on equipment burden, invites the general public and information on respondents, including and structures for identifying major other Federal agencies to take this through the use of automated collection equipment for accurate determination of opportunity to comment on proposed techniques or other forms of information tank contents, and segregation of tax and/or continuing information technology; and (e) estimates of capital paid and non-tax paid beer. Marks and collections, as required by the or start-up costs and costs of operation, labels on containers of beer are Paperwork Reduction Act of 1995, maintenance, and purchase of services necessary to inform consumers of Public Law 104–13 (44 U.S.C. to provide information. container contents, and to identify the 3506(c)(2)(A)). Currently, the Alcohol brewer and place of production. and Tobacco Tax and Trade Bureau, Dated: February 20, 2004. Current Actions: There are no changes within the Department of the Treasury, William H. Foster, to the information collection and it is is soliciting comments concerning Chief, Regulations and Procedures Division. being submitted for extension purposes ‘‘Usual and Customary Business [FR Doc. 04–5436 Filed 3–10–04; 8:45 am] only. Records Maintained by Brewers.’’ BILLING CODE 4810–31–P Type of Review: Extension.
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Affected Public: Business or other for- ADDRESSES: Direct all written comments Dated: February 20, 2004. profit. to Sandra L. Turner, Alcohol and William H. Foster, Estimated Number of Respondents: Tobacco Tax and Trade Bureau, 1310 G Chief, Regulations and Procedures Division. 1,400. Street, NW., Room 200–E, Washington, [FR Doc. 04–5441 Filed 3–10–04; 8:45 am] Estimated Total Annual Burden DC 20220. BILLING CODE 4810–13–P Hours: One. FOR FURTHER INFORMATION CONTACT: Request for Comments: Comments Requests for additional information or submitted in response to this notice will copies of the form(s) and instructions DEPARTMENT OF THE TREASURY be summarized and/or included in the should be directed Sandra L. Turner, request for OMB approval. All Alcohol and Tobacco Tax and Trade Internal Revenue Service comments will become a matter of Bureau, 1310 G Street, NW., Room 200– public record. Comments are invited on: [PS–103–90] E, Washington, DC 20220, telephone (a) Whether the collection of (202) 927–2400. Proposed Collection; Comment information is necessary for the proper Request for Regulation Project performance of the functions of the SUPPLEMENTARY INFORMATION: agency, including whether the Title: Recordkeeping for Tobacco AGENCY: Internal Revenue Service (IRS), information shall have practical utility; Products Removed in Bond from Treasury. (b) the accuracy of the agency’s estimate Manufacturers Premises for ACTION: Notice and request for of the burden of the collection of Experimental Purposes—27 CFR comments. information; (c) ways to enhance the 270.232(d). quality, utility, and clarity of the OMB Number: 1513–0110. SUMMARY: The Department of the information to be collected; (d) ways to Recordkeeping Requirement ID Treasury, as part of its continuing effort minimize the burden of the collection of Number: N/A. to reduce paperwork and respondent information on respondents, including Abstract: The prescribed records burden, invites the general public and through the use of automated collection apply to manufacturers who ship other Federal agencies to take this techniques or other forms of information tobacco products in bond for opportunity to comment on proposed technology; and (e) estimates of capital experimental purposes. TTB can and/or continuing information or start-up costs and costs of operation, examine these records to determine that collections, as required by the maintenance, and purchase of services the proprietor has complied with law Paperwork Reduction Act of 1995, to provide information. and regulations that allow such tobacco Public Law 104–13(44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is Dated: February 20, 2004. products to be shipped in bond for soliciting comments concerning an William H. Foster, experimental purposes without payment of the excise tax. existing final regulation, PS–103–90 (TD Chief, Regulations and Procedures Division. 8578), Election Out of Subchapter K for [FR Doc. 04–5437 Filed 3–10–04; 8:45 am] Current Actions: There are no changes to this information collection and it is Producers of Natural Gas (§ 1.761–2). BILLING CODE 4810–31–P being submitted for extension purposes DATES: Written comments should be only. received on or before May 10, 2004, to DEPARTMENT OF THE TREASURY Type of Review: Extension. be assured of consideration. Affected Public: Business or other for- ADDRESSES: Direct all written comments Alcohol and Tobacco Tax and Trade profit. to Glenn Kirkland, Internal Revenue Bureau Estimated Number of Respondents: Service, room 6411, 1111 Constitution 165. Avenue NW., Washington, DC 20224. Proposed Collection; Comment Estimated Total Annual Burden FOR FURTHER INFORMATION CONTACT: Request Hours: One. Requests for additional information or copies of the regulations should be ACTION: Notice and request for Request for Comments: Comments directed to Larnice Mack at Internal comments. submitted in response to this notice will be summarized and/or included in the Revenue Service, room 6407, 1111 SUMMARY: The Department of the request for OMB approval. All Constitution Avenue NW., Washington, Treasury, as part of its continuing effort comments will become a matter of DC 20224, or at (202) 622–3179, or to reduce paperwork and respondent public record. Comments are invited on: through the Internet at burden, invites the general public and (a) Whether the collection of ([email protected]). other Federal agencies to take this information is necessary for the proper SUPPLEMENTARY INFORMATION: opportunity to comment on proposed performance of the functions of the Title: Election Out of Subchapter K for and/or continuing information agency, including whether the Producers of Natural Gas. collections, as required by the information shall have practical utility; OMB Number: 1545–1338. Paperwork Reduction Act of 1995, (b) the accuracy of the agency’s estimate Regulation Project Number: PS–103– Public Law 104–13 (44 U.S.C. of the burden of the collection of 90. 3506(c)(2)(A)). Currently, the Alcohol information; (c) ways to enhance the Abstract: This regulation contains and Tobacco Tax and Trade Bureau, quality, utility, and clarity of the certain requirements that must be met within the Department of the Treasury, information to be collected; (d) ways to by co-producers of natural gas subject to is soliciting comments concerning minimize the burden of the collection of a joint operating agreement in order to ‘‘Recordkeeping for Tobacco Products information on respondents, including elect out of subchapter K of chapter 1 Removed in Bond from Manufacturers through the use of automated collection of the Internal Revenue Code. Under Premises for Experimental Purposes—27 techniques or other forms of information regulation § 1.761–2(d)(5)(i), gas CFR 270.232(d).’’ technology; and (e) estimates of capital producers subject to gas balancing DATES: We must receive written or start-up costs and costs of operation, agreements must file Form 3115 and comments on or before May 10, 2004 to maintenance, and purchase of services certain additional information to obtain be assured of consideration. to provide information. the Commissioner’s consent to a change
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in method of accounting to either of the DEPARTMENT OF THE TREASURY discussing issues pertaining to two permissible accounting methods increasing compliance and lessoning the described in the regulations. Internal Revenue Service burden for Small Business/Self Employed individuals. Current Actions: There is no change to Open Meeting of the Area 5 Taxpayer this existing regulation. Recommendations for IRS systemic Advocacy Panel (That Represents the changes will be developed. States of North Dakota, South Dakota, Type of Review: Extension of OMB DATES: The meeting will be held Minnesota, Iowa, Nebraska, Kansas, approval. Thursday, April 8, 2004. Missouri, Oklahoma, and Texas) Affected Public: Individuals or FOR FURTHER INFORMATION CONTACT: households, and business or other for- AGENCY: Internal Revenue Service (IRS), Mary O’Brien at 1–888–912–1227, or profit organizations. Treasury. 206–220–6096. Estimated Number of Respondents: ACTION: Notice. SUPPLEMENTARY INFORMATION: Notice is 10. hereby given pursuant to Section SUMMARY: An open meeting of the Area 10(a)(2) of the Federal Advisory Estimated Time Per Respondent: 30 5 Taxpayer Advocacy Panel will be minutes. Committee Act, 5 U.S.C. App. (1988) conducted (via teleconference). The that an open meeting of the Small Estimated Total Annual Burden Taxpayer Advocacy Panel is soliciting Business/Self Employed—Payroll Hours: 5. public comments, ideas and suggestions Committee of the Taxpayer Advocacy on improving customer service at the The following paragraph applies to all Panel will be held Thursday, April 8, Internal Revenue Service. of the collections of 1information 2004 from 3 p.m. EDT to 4:30 p.m. EDT DATES: The meeting will be held covered by this notice: via a telephone conference call. If you Monday, April 5, 2004. would like to have the TAP consider a An agency may not conduct or FOR FURTHER INFORMATION CONTACT: written statement, please call 1–888– sponsor, and a person is not required to Audrey Y. Jenkins at 1–888–912–1227 912–1227 or 206–220–6096, or write to respond to, a collection of information (toll-free), or 718–488–2085 (non toll- Mary O’Brien, TAP Office, 915 2nd unless the collection of information free). Avenue, MS W–406, Seattle, WA 98174, displays a valid OMB control number. SUPPLEMENTARY INFORMATION: An open or you can contact us at http:// Books or records relating to a collection meeting of the Area 5 Taxpayer www.improveirs.org. Due to limited of information must be retained as long Advocacy Panel will be held Monday, conference lines, notification of intent as their contents may become material April 5, 2004, from 3 p.m. to 4 p.m. c.t. to participate in the telephone in the administration of any internal via a telephone conference call. The conference call meeting must be made revenue law. Generally, tax returns and public is invited to make oral with Mary O’Brien. Ms O’Brien can be tax return information are confidential, comments. Individual comments will be reached at 1–888–912–1227 or 206– as required by 26 U.S.C. 6103. limited to 5 minutes. For more 220–6096. Request for Comments: Comments information or to confirm attendance, The agenda will include the submitted in response to this notice will notification of intent to attend the following: Various IRS issues. be summarized and/or included in the meeting must be made with Audrey Y. Dated: March 5, 2004. request for OMB approval. All Jenkins. Ms. Jenkins may be reached at Bernard Coston, comments will become a matter of 1–888–912–1227 or 718–488–2085, or Director, Taxpayer Advocacy Panel. public record. Comments are invited on: write Audrey Y. Jenkins, TAP Office, 10 [FR Doc. 04–5563 Filed 3–10–04; 8:45 am] MetroTech Center, 625 Fulton Street, (a) Whether the collection of BILLING CODE 4830–01–P information is necessary for the proper Brooklyn, NY 11201. performance of the functions of the The agenda will include the agency, including whether the following: Various IRS issues. DEPARTMENT OF THE TREASURY information shall have practical utility; Dated: March 5, 2004. Internal Revenue Service (b) the accuracy of the agency’s estimate Bernard Coston, of the burden of the collection of Director, Taxpayer Advocacy Panel. Open Meeting of the Area 7 Taxpayer information; (c) ways to enhance the [FR Doc. 04–5411 Filed 3–10–04; 8:45 am] Advocacy Panel (Including the State of quality, utility, and clarity of the BILLING CODE 4830–01–P California) information to be collected; (d) ways to minimize the burden of the collection of AGENCY: Internal Revenue Service (IRS), information on respondents, including DEPARTMENT OF THE TREASURY Treasury. through the use of automated collection ACTION: Notice. Internal Revenue Service techniques or other forms of information SUMMARY: An open meeting of the Area technology; and (e) estimates of capital Open Meeting of the Small Business/ 7 committee of the Taxpayer Advocacy or start-up costs and costs of operation, Self Employed—Payroll Committee of Panel will be conducted (via maintenance, and purchase of services the Taxpayer Advocacy Panel teleconference). The Taxpayer to provide information. AGENCY: Internal Revenue Service (IRS), Advocacy Panel (TAP) is soliciting Approved: March 3, 2004. Treasury. public comments, ideas, and suggestions on improving customer Glenn Kirkland, ACTION: Notice. IRS Reports Clearance Officer. service at the Internal Revenue Service. The TAP will use citizen input to make [FR Doc. 04–5565 Filed 3–10–04; 8:45 am] SUMMARY: An open meeting of the Small Business/Self Employed—Payroll recommendations to the Internal BILLING CODE 4830–01–P Committee of the Taxpayer Advocacy Revenue Service. Panel will be conducted (via DATES: The meeting will be held teleconference). The TAP will be Tuesday, April 6, 2004.
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FOR FURTHER INFORMATION CONTACT: (OMB) for review and approval, as Regulation requirement: 12 CFR Mary Peterson O’Brien at 1–888–912– required by the Paperwork Reduction 584.1(a)(2). 1227, or 206–220–6096. Act. Today, OTS is soliciting public Description: The H–(b)11 form is used SUPPLEMENTARY INFORMATION: Notice is comments on the Savings Association by OTS to monitor savings and loan hereby given pursuant to Section Holding Company Report H0–(b)11 holding companies. As part of 10(a)(2) of the Federal Advisory proposal. modernizing its supervision of savings and loan holding companies, OTS Committee Act, 5 U.S.C. App. (1988) DATES: Submit written comments on or that an open meeting of the Area 7 before April 12, 2004. proposes to streamline and modernize Taxpayer Advocacy Panel will be held its existing H–(b)11 form. The attached ADDRESSES: Send comments, referring to Tuesday, April 6, 2004 from 9 a.m. form reduces the amount of information the collection by title (Savings Pacific Time to 10 a.m. Pacific Time via items from 22 to four. Further, we are Association Holding Company Report a telephone conference call. The public reducing the amount of ‘‘hard copy’’ H–(b)11) or by OMB approval number is invited to make oral comments. submissions to only one, with another (1550–0060), to OMB and OTS at these Individual comments will be limited to copy to be submitted in PDF format. addresses: Joseph F. Lackey, Jr., Office 5 minutes. If you would like to have the OTS intends to substantially reduce the of Information and Regulatory Affairs, TAP consider a written statement, burden of the H–(b)11 by reducing Office of Management and Budget, please call 1–888–912–1227 or 206– duplication, and relying more on the Room 10235, New Executive Office 220–6096, or write to Mary Peterson expanded holding company information Building, Washington, DC 20503, or e- O’Brien, TAP Office, 915 2nd Avenue, to be gathered in Schedule HC of the mail to MS W–406, Seattle, WA 98174, or you 2004 quarterly Thrift Financial Report [email protected]; and can contact us at www.improveirs.org. (TFR), as well as examination scoping Information Collection Comments, Chief Due to limited conference lines, materials provided in the holding Counsel’s Office, Office of Thrift notification of intent to participate in company Pre-Examination Response Kit Supervision, 1700 G Street, NW., the telephone conference call meeting (PERK). For holding companies that do Washington, DC 20552, by fax to (202) must be made with Mary Peterson not have a thrift subsidiary that files 906–6518, or by e-mail to O’Brien. Ms. O’Brien can be reached at Schedule HC of the TFR, the holding [email protected]. 1–888–912–1227 or 206–220–6096. company is to complete and file a The agenda will include the OTS will post comments and the related quarterly Schedule HC. By transferring following: Various IRS issues. index on the OTS Internet site at much of the needed information http://www.ots.treas.gov. In addition, Dated: March 5, 2004. collection from the H–(b)11 to the interested persons may inspect PERK, OTS eliminates the duplication Bernard Coston, comments at the Public Reading Room, of effort in supplying the same Director, Taxpayer Advocacy Panel. 1700 G Street, NW., by appointment. To information at two different times in the [FR Doc. 04–5564 Filed 3–10–04; 8:45 am] make an appointment, call (202) 906– same year. BILLING CODE 4830–01–P 5922, send an e-mail to Type of Review: Renewal with [email protected], or send a revisions. facsimile transmission to (202) 906– Affected Public: Savings association DEPARTMENT OF THE TREASURY 7755. holding companies. Office of Thrift Supervision FOR FURTHER INFORMATION CONTACT: To Estimated Number of Respondents: obtain a copy of the submission to OMB, 1,007. Submission for OMB Review; contact Marilyn K. Burton at Estimated Frequency of Response: Comment Request—Savings and Loan [email protected], (202) Quarterly (using the current form). Holding Company Report H–(b)11 906–6467, or facsimile number (202) Estimated Burden Hours per 906–6518, Regulations and Legislation Response: 2 hours. AGENCY: Office of Thrift Supervision Division, Chief Counsel’s Office, Office Estimated Total Burden: 8,056 hours. (OTS), Treasury. of Thrift Supervision, 1700 G Street, Clearance Officer: Marilyn K. Burton, ACTION: Notice and request for comment. NW., Washington, DC 20552. (202) 906–6467, Office of Thrift Supervision, 1700 G Street, NW., SUPPLEMENTARY INFORMATION: OTS may SUMMARY: The Department of the Washington, DC 20552. not conduct or sponsor an information Treasury, as part of its continuing effort OMB Reviewer: Joseph F. Lackey, Jr., collection, and respondents are not to reduce paperwork and respondent (202) 395–7316, Office of Management required to respond to an information burden, invites the general public and and Budget, Room 10235, New collection, unless the information other Federal agencies to comment on Executive Office Building, Washington, collection displays a currently valid proposed and continuing information DC 20503. collections, as required by the OMB control number. As part of the Paperwork Reduction Act of 1995, 44 approval process, we invite comments Dated: March 1, 2004. U.S.C. 3507. The Office of Thrift on the following information collection. By the Office of Thrift Supervision. Supervision within the Department of Title of Proposal: Savings and Loan Richard M. Riccobono, the Treasury will submit the proposed Holding Company Report H–(b)11. Deputy Director. information collection described below OMB Number: 1550–0060. [FR Doc. 04–5423 Filed 3–10–04; 8:45 am] to the Office of Management and Budget Form Number: H–(b)11. BILLING CODE 6720–01–P
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Corrections Federal Register Vol. 69, No. 48
Thursday, March 11, 2004
This section of the FEDERAL REGISTER §71.1 [Corrected] DEPARTMENT OF THE TREASURY contains editorial corrections of previously published Presidential, Rule, Proposed Rule, On page 10331, in the first column, in Office of the Comptroller of the and Notice documents. These corrections are §71.1, under the heading ‘‘ACE KS E2 Currency prepared by the Office of the Federal Hays, KS’’, in the 10th line, ‘‘160°’’ ° Register. Agency prepared corrections are should read ‘‘162 ’’. Office of Thrift Supervision issued as signed documents and appear in [FR Doc. C4–5026 Filed 3–10–04; 8:45 am] the appropriate document categories FEDERAL RESERVE SYSTEM elsewhere in the issue. BILLING CODE 1505–01–D FEDERAL DEPOSIT INSURANCE CORPORATION DEPARTMENT OF TRANSPORTATION Agency Information Collection Federal Aviation Administration Activities: Submission for OMB Review; Joint Comment Request 14 CFR Part 71 Correction [Docket No. FAA–2004–16989; Airspace In notice document 04–4839 Docket No. 04–ACE–7] beginning on page 10294 in the issue of Thursday, March 4, 2004 make the Modification of Class E Airspace; following correction: Hays, KS On page 10294, in the third column, Correction under the DATES heading, in the second line, ‘‘April 15, 2004’’ should read In rule document 04–5026 beginning ‘‘April 5, 2004’’. on page 10330 in the issue of Friday, March 5, 2004, make the following [FR Doc. C4–4839 Filed 3–10–04; 8:45 am] correction: BILLING CODE 1505–01–D
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Part II
Department of Housing and Urban Development Notice of Regulatory Waiver Requests Granted for the Third Quarter of Calendar Year 2003; Notice
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DEPARTMENT OF HOUSING AND 3. Not less than quarterly, the HUD regulations is provided in the URBAN DEVELOPMENT Secretary must notify the public of all Appendix that follows this notice. waivers of regulations that HUD has [Docket No. FR–4854–N–03] Dated: March 3, 2004. approved, by publishing a notice in the Alphonso Jackson, Federal Register. These notices (each Notice of Regulatory Waiver Requests Acting Secretary. Granted for the Third Quarter of covering the period since the most Calendar Year 2003 recent previous notification) shall: Appendix a. Identify the project, activity, or Listing of Waivers of Regulatory AGENCY: Office of the Secretary, HUD. undertaking involved; Requirements Granted by Offices of the ACTION: Public Notice of the Granting of b. Describe the nature of the provision Department of Housing and Urban Regulatory Waivers from July 1, 2003, waived and the designation of the Development July 1, 2003, Through through September 30, 2003. provision; September 30, 2003 c. Indicate the name and title of the Note to Reader: More information about SUMMARY: Section 106 of the Department person who granted the waiver request; the granting of these waivers, including a of Housing and Urban Development d. Describe briefly the grounds for copy of the waiver request and approval, may Reform Act of 1989 (the HUD Reform approval of the request; and be obtained by contacting the person whose Act) requires HUD to publish quarterly e. State how additional information name is listed as the contact person directly Federal Register notices of all about a particular waiver may be after each set of waivers granted. regulatory waivers that HUD has obtained. The regulatory waivers granted appear in approved. Each notice covers the Section 106 of the HUD Reform Act the following order: quarterly period since the previous also contains requirements applicable to I. Regulatory waivers granted by the Office Federal Register notice. The purpose of waivers of HUD handbook provisions of Community Planning and Development. this notice is to comply with the that are not relevant to the purpose of II. Regulatory waivers granted by the Office of Housing. requirements of section 106 of the HUD this notice. This notice follows procedures III. Regulatory waivers granted by the Reform Act. This notice contains a list Office of Public and Indian Housing. of regulatory waivers granted by HUD provided in HUD’s Statement of Policy during the period beginning on July 1, on Waiver of Regulations and Directives I. Regulatory Waivers Granted by the Office 2003, and ending on September 30, issued on April 22, 1991 (56 FR 16337). of Community Planning and Development 2003. This notice covers waivers of For further information about the following regulations granted by HUD from July 1, regulatory waivers please see the name of the FOR FURTHER INFORMATION CONTACT: For 2003, through September 30, 2003. For contact person that immediately follows the general information about this notice, ease of reference, the waivers granted by description of the waiver granted. • contact Aaron Santa Anna, Assistant HUD are listed by HUD program office Regulation: 24 CFR 91.520(a). General Counsel for Regulations, Room (for example, the Office of Community Project/Activity: Request for waiver of the submission deadline for the Consolidated 10276, Department of Housing and Planning and Development, the Office Urban Development, 451 Seventh Street, Annual Performance and Evaluation Report of Housing, the Office of Public and (CAPER) of the county of Essex, New Jersey. SW., Washington, DC 20410–0500, Indian Housing, etc.). Within each telephone (202) 708–3055 (this is not a Nature of Requirement: The regulation at program office grouping, the waivers are 24 CFR 91.520(a) requires each grantee to toll-free number). Hearing- or speech- listed sequentially by the regulatory submit a performance report to HUD within impaired persons may access this section of title 24 of the Code of Federal 90 days after the close of the grantee’s number through TTY by calling the toll- Regulations (CFR) that is being waived. program year. free Federal Information Relay Service For example, a waiver of a provision in Granted By: Roy A. Bernardi, Assistant at 1–800–877–8339. 24 CFR part 58 would be listed before Secretary for Community Planning and Development. For information concerning a a waiver of a provision in 24 CFR part particular waiver that was granted and Reasons Waived: Essex County’s program 570. year ended on May 31, 2003, and therefore for which public notice is provided in Where more than one regulatory this document, contact the person its CAPER was due August 29, 2003. Essex provision is involved in the grant of a County requested a 45-day extension of its whose name and address follow the particular waiver request, the action is submission deadline to October 13, 2003, description of the waiver granted in the listed under the section number of the because, according to the county, a series of accompanying list of waivers that have first regulatory requirement that appears personnel reassignments and reclassification been granted in the third quarter of in 24 CFR and that is being waived. For actions had severely hampered its ability to calendar year 2003. example, a waiver of both § 58.73 and prepare and submit the CAPER in a timely SUPPLEMENTARY INFORMATION: Section § 58.74 would appear sequentially in the manner. The county noted that the extension would enable the county’s Division of 106 of the HUD Reform Act added a listing under § 58.73. new section 7(q) to the Department of Housing and Community Development to Waiver of regulations that involve the present an accurate and comprehensive Housing and Urban Development Act same initial regulatory citation are in report. If the deadline for submission of the (42 U.S.C. 3535(q)), which provides time sequence beginning with the CAPER had been denied, the county would that: earliest-dated waiver-grant action. not have been able to submit a complete and 1. Any waiver of a regulation must be Should HUD receive additional accurate expenditure report on its 2002 in writing and must specify the grounds information about waivers granted program. The CAPER report provides local for approving the waiver; during the period covered by this report residents with information on the city’s 2. Authority to approve a waiver of a before the next report is published, the accomplishments during the year, and the regulation may be delegated by the next updated report will include these report data goes into HUD’s national Secretary only to an individual of earlier waivers that were granted, as database, which is used for various reporting purposes, including the annual report to Assistant Secretary or equivalent rank, well as those that occurred during Congress. While HUD desires timely reports, and the person to whom authority to October 1, 2003, through December 31, it is also interested in ensuring that the waive is delegated must also have 2003. performance reports prepared by grantees are authority to issue the particular Accordingly, information about complete and accurate. regulation to be waived; approved waiver requests pertaining to Date Granted: August 19, 2003.
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Contact: Nanci R. Doherty, Special illness. These employees were responsible • Regulation: 24 CFR 91.520(a). Assistant to the Deputy Assistant Secretary, for the management of Integrated Project/Activity. Request for waiver of the Community Planning and Development, Disbursement and Information System (IDIS) submission deadline for the CAPER of the Department of Housing and Urban data and submission of the CAPER, and city of Hampton, Virginia. Development, 451 Seventh Street, SW., therefore their absence adversely affected the Nature of Requirement: The regulation at Washington, DC 20410–7000, telephone (202) ability of the city to prepare an accurate and 24 CFR 91.520(a) requires each grantee to 708–2565. complete CAPER. The city was in the process submit a performance report to HUD within • Regulation: 24 CFR 91.520(a). of hiring a new Community Development 90 days after the close of the grantee’s Project/Activity: Request for waiver of the Division Manager and expected the return of program year. submission deadline for the CAPER of the its Community Development Project Granted By: Roy A. Bernardi, Assistant city of Baltimore, Maryland. Coordinator in the near future. If the deadline Secretary for Community Planning and Nature of Requirement: The regulation at for submission of the CAPER report had been Development. 24 CFR 91.520(a) requires each grantee to denied, the city would not have been able to Reasons Waived: The city of Hampton’s submit a performance report to HUD within submit a complete and accurate expenditure program year ended on June 30, 2003, and 90 days after the close of the grantee’s report on its 2002 program. The performance therefore its CAPER was due September 29, program year. report provides local residents with 2003, for the city’s 2002 program year. The Granted By: Roy A. Bernardi, Assistant information on the city’s accomplishments city requested an extension of its submission Secretary for Community Planning and during the year, and the city enters reporting deadline due to the impact of hurricane Development. data into IDIS, HUD’s national database, Isabel, which interrupted the city’s normal Reasons Waived: The city of Baltimore’s which is used for various reporting purposes, scheduling of events. The regulation at 24 program year ended on June 30, 2003, and including the annual report to Congress. CFR 91.105(d) requires a grantee to provide therefore its CAPER was due September 29, While HUD is greatly desirous of timely citizens not less than 15 days to comment on 2003. The city requested an extension of its reports, it is also interested in ensuring that the CAPER before it is submitted to HUD, submission deadline to November 21, 2003. the performance reports prepared by grantees and 24 CFR 91.105(e) requires a public The extension was necessary because of two are complete and accurate. hearing to review program performance. circumstances: (1) additional time needed to Date Granted: September 23, 2003. Although the city’s CAPER had been account for the completion of 82 CDBG Contact: Nanci R. Doherty, Special completed, the city found it necessary to activities dating from the late 1980’s through Assistant to the Deputy Assistant Secretary, postpone the public hearing on the CAPER the early 1990s in order to incorporate them Community Planning and Development, due to other urgencies following the storm. into the city’s IDIS, and (2) an augmentation Department of Housing and Urban Therefore, additional time was required to of the city’s CAPER format in order to Development, 451 Seventh Street, SW., conduct the public hearing and allow the Washington, DC 20410–7000, telephone (202) increase its accessibility and usefulness to a required 15-day comment period. If an 708–2565. wider audience. If the deadline for extension of the CAPER deadline had been • Regulation: 24 CFR 91.520(a). submission of the CAPER had been denied, denied, the city would have been unable to Project/Activity: Request for waiver of the the city would have been unable to submit hold a public hearing with local residents to submission deadline for the CAPER of the a complete and accurate expenditure report discuss the city’s performance and county of Maui, Hawaii. for its 2002 program. Furthermore, the Nature of Requirement: The regulation at accomplishments, and it would not have CAPER provides local residents with 24 CFR 91.520(a) requires each grantee to been able to allow local residents the information on accomplishments during the submit a performance report to HUD within opportunity to comment on the CAPER prior city’s program year and HUD with 90 days after the close of the grantee’s to its submission to HUD. While HUD desires information for its national database, which program year. timely reports, it is also interested in is used for various reporting purposes, Granted By: Roy A. Bernardi, Assistant ensuring that grantee performance reports are including the annual report to Congress. Secretary for Community Planning and accurate and complete and that local While HUD desires timely reports, it is also Development. residents have the opportunity to review and interested in ensuring that grantee Reasons Waived: The county of Maui’s comment on the grantee’s performance. performance reports are complete and program year ended on June 30, 2003, and Date Granted: September 25, 2003. accurate. therefore its CAPER was due September 28, Contact: Nanci R. Doherty, Special Date Granted: September 22, 2003. 2003. The county requested an extension of Assistant to the Deputy Assistant Secretary, Contact: Nanci R. Doherty, Special its submission deadline until December 30, Community Planning and Development, Assistant to the Deputy Assistant Secretary, 2003. The extension was needed due to the Department of Housing and Urban Community Planning and Development, turnover of two of the three CDBG-funded Development, 451 Seventh Street, SW., Department of Housing and Urban staff positions. Both of the CDBG positions Washington, DC 20410–7000, telephone (202) Development, 451 Seventh Street, SW., have been filled, but due to the backlog of 708–2565. • Washington, DC 20410–7000, telephone (202) work additional time was required to prepare Regulation: 24 CFR 91.520(a). 708–2565. the CAPER. If the deadline for submission of Project/Activity: Request for waiver of the • Regulation: 24 CFR 91.520(a). the CAPER had been denied, the county submission deadline for the CAPER of the Project/Activity: Request for waiver of the would not have been able to submit a cities of Virginia Beach, Norfolk, Petersburg, submission deadline for the CAPER of the complete and accurate expenditure report on and Portsmouth and the county of city of Sioux City, Iowa. its 2002 program. The performance report Chesterfield, Virginia. These jurisdictions Nature of Requirement: The regulation at provides county residents with information requested waiver of the submission deadline 24 CFR 91.520(a) requires each grantee to on Maui’s accomplishments during the year, for their CAPERs. All of the jurisdictions submit a performance report to HUD within and the report data goes into HUD’s national requesting the waiver were located in the 90 days after the close of the grantee’s database, which is used for various reporting storm path of hurricane Isabel. program year. purposes, including the annual report to Nature of Requirement: The regulation at Granted By: Roy A. Bernardi, Assistant Congress. While HUD desires timely reports, 24 CFR 91.520(a) requires each grantee to Secretary for Community Planning and it is also interested in ensuring that the submit a performance report to HUD within Development. performance reports prepared by grantees are 90 days after the close of its program year. Reasons Waived: Sioux City’s program year complete and accurate. Granted By: Roy A. Bernardi, Assistant ended on June 30, 2003, and therefore its Date Granted: September 25, 2003. Secretary for Community Planning and CAPER was due September 29, 2003. The Contact: Nanci R. Doherty, Special Development. city requested an extension of its submission Assistant to the Deputy Assistant Secretary, Reasons Waived: The program year for deadline to November 30, 2003, because of Community Planning and Development, each of these jurisdictions ended on June 30, the unexpected retirement of its Community Department of Housing and Urban 2003, and therefore each grantee’s CAPER Development Division Manager and the Development, 451 Seventh Street, SW., was due by September 29, 2003. The reason recent temporary loss of its Community Washington, DC 20410–7000, telephone (202) for the requests for an extension of the Development Project Coordinator due to 708–2565. submission date was the impact of hurricane
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Isabel, the effects of which interrupted the regulations at 24 CFR 576.35(a)(ii) provide FHA No. Project name State normal business schedules of the affected that State recipients must expend ESG funds communities. As a result, although the within 24-months of the grant award by 03435186 Williamsport Neighbor- PA jurisdictions acknowledged that each of their HUD. hood Strategy Area CAPERs were completed or near completion, Granted By: Roy A. Bernardi, Assistant (NSA). storm-related problems such as power Secretary for Community Planning and 12392501 Winslow West (also AZ outages, flooding, and other emergencies Development. known as Kachina prevented each community from completing Reasons Waived: The State of Alabama Gardens). the final document for a timely submission requested a six-month extension of the June to HUD. If an extension of the CAPER 4, 2003, deadline for expenditure of ESG Nature of Requirement: Section 401.600 deadline had been denied, these affected funds because of the extensive delay in requires that projects be marked down to communities would have been unable to obtaining licensing approval from the State’s market rents within 12 months after their submit their reports on time due to Department of Human Resources following first expiration date after January 1, 1998. conditions created by hurricane Isabel. While required renovations under the Americans The intent of this provision is to ensure HUD desires timely reports, it is also with Disabilities Act that prevented the timely processing of requests for interested in ensuring that grantee grantee from complying with the 24-month restructuring and that the properties will not performance reports are accurate and expenditure deadline. Waiving the 24-month default on their Federal Housing complete. requirement and extending the deadline for Administration (FHA) insured mortgages Date Granted: September 26, 2003. six months allowed the grantee to complete during the restructuring process. Contact: Nanci R. Doherty, Special the activities and expend the remaining Granted By: John C. Weicher, Assistant Assistant to the Deputy Assistant Secretary, funds for youth services. The State and the Secretary for Housing—Federal Housing Community Planning and Development, county provided sufficient justification to Commissioner. Department of Housing and Urban permit approval of this waiver request. Date Granted: August 26, 2003. Development, 451 Seventh Street, SW., Date Granted: September 30, 2003. Reason Waived: The projects listed above Washington, DC 20410–7000, telephone (202) Contact: Nanci R. Doherty, Special were not assigned to the participating 708–2565. Assistant to the Deputy Assistant Secretary, administrative entities (PAEs) in a timely • Regulation: 24 CFR 91.520(a). Community Planning and Development, manner or their restructuring analysis was Project/Activity. Request for waiver of the Department of Housing and Urban unavoidably delayed due to no fault of the submission deadline for the CAPER of the Development, 451 Seventh Street, SW., owner. city of Hopewell, Virginia. Washington, DC 20410–7000, telephone (202) Contact: Norman Dailey, Office of Nature of Requirement: The regulation at 708–2565. Multifamily Housing Assistance 24 CFR 91.520(a) requires each grantee to II. Regulatory Waivers Granted by the Office Restructuring, Department of Housing and Urban Development, Portals Building, Suite submit a performance report to HUD within of Housing 90 days after the close of the grantee’s 400, 1280 Maryland Avenue, SW., program year. For further information about the following Washington, DC 20410–8000, telephone (202) Granted By: Roy A. Bernardi, Assistant regulatory waivers, please see the name of 708–3856. Secretary for Community Planning and the contact person that immediately follows • Regulation: 24 CFR 401.600. Development. the description of the waiver granted. Project/Activity: The following projects Reasons Waived: The city of Hopewell’s • Regulation: 24 CFR 401.600. requested waivers to the 12-month limit on program year ended on June 30, 2003, and Project/Activity: The following projects above-market rents (24 CFR 401.600): therefore its CAPER was due September 29, requested waivers to the 12-month limit on 2003. The city requested an extension of its above-market rents (24 CFR 401.600): FHA No. Project name State submission deadline to November 14, 2003. The extension was necessary due to the FHA No. Project name State 01444047 Braco-I ...... NY departure of an experienced staff member, 01335105 Brandegee Gardens .... NY whose position has now been filled. Moving 07135458 Armitage Commons ..... IL 09335086 Cedar View Apart- MT forward, the city estimated it would need an 12594009 Baltimore Garden NV ments. additional 45 days to complete its CAPER. If Apartments. 04535094 Clarksburg Towers ...... WV the deadline for submission of the CAPER 12594011 Cleveland Garden NV 03435185 Cobbs Creek Neighbor- PA had been denied, the city would have been Apartments. hood Strategy Area unable to submit a complete and accurate 04235336 Eastland Woods ...... OH (NSA). expenditure report for its 2002 program. 07135733 Evergreen Terrace I .... IL 06235333 Crossgates Apartments AL Furthermore, the CAPER provides local 03435174 Finch Towers ...... PA 01257153 East 21st Street Apart- NY residents with information on 01635066 Hanora Lippitt Mills RI ments. accomplishments during the city’s program Apartments. 08235225 Eastview Terrace AR year and HUD with information for its 03444115 Hugh Carcella Apart- PA Apartments. national database, which is used for various ments. 06135371 Edgewood Housing II .. GA reporting purposes, including the annual 04235347 Lakeshore Village ...... OH 12135677 Eureka Central Resi- CA report to Congress. 01335117 Lillian Y. Cooper Apart- NY dence. Date Granted: September 25, 2003. ments. 11535420 Falfurrias Village Apart- TX Contact: Nanci R. Doherty, Special 01235312 Marion Avenue Reha- NY ments. Assistant to the Deputy Assistant Secretary, bilitation. 04235327 Fostoria Townhouses .. OH Community Planning and Development, 12735339 Montesano Annex WA 07335407 Gary Neighborhood IN Department of Housing and Urban Apartments. Strategy Area (NSA) Development, 451 Seventh Street, SW., 12735339 Montesano Annex WA I & II. Washington, DC 20410–7000, telephone (202) Apartments. 01257088 Greene Park Arms ...... NY 708–2565. 04235373 Newton Woods ...... OH 17138007 Kenwood Square ...... WA • Regulation: 24 CFR 576.35(a)(ii). 01257184 Norgate Plaza ...... NY 08335267 Lakeland Wesley Vil- KY Project/Activity: Request for waiver of the 03535090 Oakland Park Apart- NJ lage I. 24-month deadline of the expenditure of ments (also known 01257121 Maria Estela I ...... NY Emergency Shelter Grant (ESG) Funds, as Roger Gardens). 06535334 Moorhead Manor MS Project Number: S01DC010001, Tallapoosa 05334278 Sheraton Towers ...... NC Apartments. County Commissioner, State of Alabama. 08635177 Southwood Town- TN 01335109 Ninth Street Neighbor- NY Nature of Requirement: The State of houses. hood Strategy Area Alabama requested an extension of the 24- 01257161 Unity Apartments ...... NY (NSA) II. month ESG expenditure deadline. The 08435334 Wesley Senior Towers MO 01257142 Noonan Plaza ...... NY
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FHA No. Project name State FHA No. Project name State Granted By: John C. Weicher, Assistant Secretary for Housing—Federal Housing 06135232 Oconee Park Apart- GA 04235396 Findlay Green Apart- OH Commissioner. ments. ments. Date Granted: September 25, 2003. 06535591 Pendleton Square ...... MS 04335145 Pomeroy Cliff Apart- OH Reason Waived: The projects listed above 03235022 Prestwyck Apartments DE ments. were not assigned to the participating 11392501 Prince Hall Gardens II TX 04235328 Smiley Garden Apart- OH administrative entities (PAEs) in a timely 02335172 Schoolhouse 77 ...... MA ments. manner or their restructuring analysis was 01255173 Siloam House ...... NY unavoidably delayed due to no fault of the owner. 10135263 Sleeping Ute Apart- CO Nature of Requirement: Section 401.600 Contact: Norman Dailey, Office of ments. requires that projects be marked down to Multifamily Housing Assistance 08435196 Sullivan Hall ...... MO market rents within 12 months after their Restructuring, Department of Housing and 08445006 Sunflower Park Apart- KS first expiration date after January 1, 1998. Urban Development, Portals Building, Suite ments. The intent of this provision is to ensure 400, 1280 Maryland Avenue, SW., 01257159 Sutter Houses ...... NY timely processing of requests for Washington, DC 20410–8000, telephone (202) 07335448 The Crossings II Apart- IN restructuring and that the properties will not 708–3856. ments. default on their FHA insured mortgages • Regulation: 24 CFR 883.606. 07335420 The Meadows Apart- IN during the restructuring process. Project/Activity: Ashland/Dellwood ments. Granted By: John C. Weicher, Assistant Apartments, Cambridge, MN; Project 01257180 Union Gardens I ...... NY Secretary for Housing—Federal Housing Number: MN46–H162–391–MHFA #80–092. 05635185 Vistas De Jagueyes .... PR Commissioner. Nature of Requirement: Section 883.606(b) 05235300 Washington Gardens ... MD Date Granted: September 25, 2003. establishes the procedures by which a State 04235313 William E. Fowler, Sr. OH Reason Waived: The projects listed above agency is entitled to a reasonable fee, Apartments II. were not assigned to the participating determined by HUD, for administering a 04535100 Williamson Towers ...... WV administrative entities (PAEs) in a timely contract on newly constructed or 08435203 Woodlen Place Apart- MO manner or their restructuring analysis was substantially rehabilitated units, provided ments. unavoidably delayed due to no fault of the there is no override on the permanent loan owner. granted by the agency to the owner for a Nature of Requirement: Section 401.600 Contact: Norman Dailey, Office of project containing assisted units. requires that projects be marked down to Multifamily Housing Assistance Granted By: John C. Weicher, Assistant market rents within 12 months after their Restructuring, Department of Housing and Secretary for Housing—Federal Housing first expiration date after January 1, 1998. Urban Development, Portals Building, Suite Commissioner. The intent of this provision is to ensure 400, 1280 Maryland Avenue, SW., Date Granted: August 1, 2003. timely processing of requests for Reason Waived: The Minnesota Housing Washington, DC 20410–8000, telephone (202) restructuring and that the properties will not Finance Agency (MHFA) negotiated and 708–3856. default on their FHA insured mortgages secured from the owner of Dellwood a • Regulation: 24 CFR 401.600. during the restructuring process. commitment to remain in the Section 8 Project/Activity: The following projects Granted By: John C. Weicher, Assistant program for 10 years beyond its current Secretary for Housing—Federal Housing requested waivers to the 12-month limit on commitment in return for an adjustment in Commissioner. above-market rents (24 CFR 401.600): allowable distribution consistent with that Date Granted: August 26, 2003. available to smaller projects in the MHFA Reason Waived: The projects listed above FHA No. Project name State portfolio. The terms of the Dellwood’s were not assigned to the participating commitment are the same as those imposed administrative entities (PAEs) in a timely 03435185 Cobbs Creek ...... PA on the other MHFA bond financed Section 8 manner or their restructuring analysis was 10235164 Tumbleweed Apart- KS assisted projects that were provided a waiver unavoidably delayed due to no fault of the ments. permitting MHFA to continue to collect owner. 08335267 Lakeland Wesley Vil- KY override and contract administration fees. Contact: Norman Dailey, Office of lage I. Contact: Beverly J. Miller, Director, Office Multifamily Housing Assistance 02335253 Villa Nueva Vista ...... MA of Multifamily Asset Management, Restructuring, Department of Housing and 05235338 Sharp Leadenhall II ..... MD Department of Housing and Urban Urban Development, Portals Building, Suite 08435196 Sullivan Hall ...... MO Development, 451 Seventh Street, SW., 400, 1280 Maryland Avenue, SW., 01257141 Bruckner Houses ...... NY Washington, DC 20410–7000, telephone (202) 01257060 Concourse Plaza ...... NY 708–3730. Washington, DC 20410–8000, telephone (202) • 708–3856. 01257075 Davidson Avenue NY Regulation: 24 CFR 891.100(d). • Rehab II. Project/Activity: St. Tropez Drive Group Regulation: 24 CFR 401.600. Home, Newport News, VA; Project Number: Project/Activity: The following projects 01257148 The Gateways (also NY known as Greenport 051–HD092/VA36–Q001–007. requested waivers to the 12-month limit on Nature of Requirement: Section 891.100(d) above-market rents (24 CFR 401.600): Apartments). 01257383 Dean North Apartments NY prohibits amendment of the amount of approved capital advance funds prior to FHA No. Project name State 04235343 Bay Meadows Apart- OH ments. initial closing. Granted By: John C. Weicher, Assistant 06235162 Hermitage Oaks Apart- AL 04235327 Fostoria Townhouses .. OH 04235345 Little Bark View ...... OH Secretary for Housing—Federal Housing ments. Commissioner. 04335238 McArthur Park ...... OH 06235256 Hermitage Place Apart- AL Date Granted: July 1, 2003. 03435174 Finch Towers ...... PA ments. Reason Waived: The sponsor exhausted all 06235355 Oak Trace Apartments AL efforts to obtain additional funding. The 01735210 Village Apartments ...... CT Nature of Requirement: Section 401.600 project is economically designed and is 06635038 Jones Walker Palm FL requires that projects be marked down to comparable in cost to similar projects Garden Apartments. market rents within 12 months after their developed in the area. 03135269 St. Mary’s Villa ...... NJ first expiration date after January 1, 1998. Contact: Willie Spearmon, Director, Office 01235472 Barkley Gardens ...... NY The intent of this provision is to ensure of Housing Assistance and Grant 01335095 Faxton Scott House NY timely processing of requests for Administration, Department of Housing and (also known as Mar- restructuring and that the properties will not Urban Development, 451 Seventh Street, garet Knamm Apart- default on their FHA insured mortgages SW., Washington, DC 20410–8000, telephone ments). during the restructuring process. (202) 708–3000.
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• Regulation: 24 CFR 891.100(d). approved capital advance funds prior to Reason Waived: The sponsor exhausted all Project/Activity: Southampton Arch Group initial closing. efforts to obtain additional funding. The Home, Portsmouth, VA; Project Number: Granted By: John C. Weicher, Assistant project is economically designed and is 051–HD090/VA36–Q001–005. Secretary for Housing—Federal Housing comparable in cost to similar projects Nature of Requirement: Section 891.100(d) Commissioner. developed in the area. prohibits amendment of the amount of Date Granted: July 7, 2003. Contact: Willie Spearmon, Director, Office approved capital advance funds prior to Reason Waived: The sponsor exhausted all of Housing Assistance and Grant initial closing. efforts to obtain additional funding. The Administration, Department of Housing and Granted By: John C. Weicher, Assistant project is economically designed and is Urban Development, 451 Seventh Street, Secretary for Housing—Federal Housing comparable in cost to similar projects SW., Washington, DC 20410–8000, telephone Commissioner. developed in the area. (202) 708–3000. Date Granted: July 1, 2003. Contact: Willie Spearmon, Director, Office • Regulation: 24 CFR 891.100(d). Reason Waived: The sponsor exhausted all of Housing Assistance and Grant Project/Activity: Piedmont Drive Group efforts to obtain additional funding. The Administration, Department of Housing and Home, Spotsylvania, VA; Project Number: project is economically designed and is Urban Development, 451 Seventh Street, 051–HD086/VA36–Q001–001. comparable in cost to similar projects SW., Washington, DC 20410–8000, telephone Nature of Requirement: Section 891.100(d) developed in the area. (202) 708–3000. prohibits amendment of the amount of Contact: Willie Spearmon, Director, Office • Regulation: 24 CFR 891.100(d). approved capital advance funds prior to of Housing Assistance and Grant Project/Activity: Crestview Unity, Bryan, initial closing. Administration, Department of Housing and TX; Project Number: 114–EE088/TX24– Granted By: John C. Weicher, Assistant Urban Development, 451 Seventh Street, S011–001. Secretary for Housing—Federal Housing SW., Washington, DC 20410–8000, telephone Nature of Requirement: Section 891.100(d) Commissioner. (202) 708–3000. prohibits amendment of the amount of Date Granted: July 9, 2003. • Regulation: 24 CFR 891.100(d). approved capital advance funds prior to Reason Waived: The sponsor exhausted all Project/Activity: The Carriage House at initial closing. efforts to obtain additional funding. The project is economically designed and is Acushnet Heights, New Bedford, MA; Project Granted By: John C. Weicher, Assistant comparable in cost to similar projects Number: 023–EE147/MA06–S011–019. Secretary for Housing—Federal Housing developed in the area. Nature of Requirement: Section 891.100(d) Commissioner. Contact: Willie Spearmon, Director, Office prohibits amendment of the amount of Date Granted: July 7, 2003. of Housing Assistance and Grant approved capital advance funds prior to Reason Waived: The sponsor exhausted all Administration, Department of Housing and initial closing. efforts to obtain additional funding. The Urban Development, 451 Seventh Street, Granted By: John C. Weicher, Assistant project is economically designed and is SW., Washington, DC 20410–8000, telephone Secretary for Housing—Federal Housing comparable in cost to similar projects (202) 708–3000. Commissioner. developed in the area. • Date Granted: July 2, 2003. Contact: Willie Spearmon, Director, Office Regulation: 24 CFR 891.100(d). Reason Waived: The sponsor exhausted all of Housing Assistance and Grant Project/Activity: Creedmoor Court, efforts to obtain additional funding. The Administration, Department of Housing and Brookline, PA; Project Number: 033–EE109/ project is economically designed and is Urban Development, 451 Seventh Street, PA28–S011–002. comparable in cost to similar projects SW., Washington, DC 20410–8000, telephone Nature of Requirement: Section 891.100(d) developed in the area. (202) 708–3000. prohibits amendment of the amount of Contact: Willie Spearmon, Director, Office • approved capital advance funds prior to Regulation: 24 CFR 891.100(d). initial closing. of Housing Assistance and Grant Project/Activity: Grady Manor, Administration, Department of Housing and Granted By: John C. Weicher, Assistant Charlottesville, VA; Project Number: 051– Secretary for Housing—Federal Housing Urban Development, 451 Seventh Street, HD095/VA36–Q001–010. SW., Washington, DC 20410–8000, telephone Commissioner. Nature of Requirement: Section 891.100(d) Date Granted: July 9, 2003. (202) 708–3000. prohibits amendment of the amount of Reason Waived: The sponsor exhausted all • Regulation: 24 CFR 891.100(d). approved capital advance funds prior to efforts to obtain additional funding. The Project/Activity: Woodland Estates, North initial closing. project is economically designed and is Providence, RI; Project Number: 016–HD025/ Granted By: John C. Weicher, Assistant comparable in cost to similar projects RI43–Q991–001. Secretary for Housing—Federal Housing developed in the area. Nature of Requirement: Section 891.100(d) Commissioner. Contact: Willie Spearmon, Director, Office prohibits amendment of the amount of Date Granted: July 9, 2003. of Housing Assistance and Grant approved capital advance funds prior to Reason Waived: The sponsor exhausted all Administration, Department of Housing and initial closing. efforts to obtain additional funding. The Urban Development, 451 Seventh Street, Granted By: John C. Weicher, Assistant project is economically designed and is SW., Washington, DC 20410–8000, telephone Secretary for Housing—Federal Housing comparable in cost to similar projects (202) 708–3000. Commissioner. developed in the area. • Regulation: 24 CFR 891.100(d). Date Granted: July 2, 2003. Contact: Willie Spearmon, Director, Office Project/Activity: Maison de Lemaire, Reason Waived: The sponsor exhausted all of Housing Assistance and Grant Lafayette, LA; Project Number: 064–HD061/ efforts to obtain additional funding. The Administration, Department of Housing and LA48–Q011–001. project is economically designed and is Urban Development, 451 Seventh Street, Nature of Requirement: Section 891.100(d) comparable in cost to similar projects SW., Washington, DC 20410–8000, telephone prohibits amendment of the amount of developed in the area. (202) 708–3000. approved capital advance funds prior to Contact: Willie Spearmon, Director, Office • Regulation: 24 CFR 891.100(d). initial closing. of Housing Assistance and Grant Project/Activity: Mountain Vistas, Redding, Granted By: John C. Weicher, Assistant Administration, Department of Housing and CA; Project Number: 136–EE064/CA30– Secretary for Housing—Federal Housing Urban Development, 451 Seventh Street, S011–001. Commissioner. SW., Washington, DC 20410–8000, telephone Nature of Requirement: Section 891.100(d) Date Granted: July 15, 2003. (202) 708–3000. prohibits amendment of the amount of Reason Waived: The sponsor exhausted all • Regulation: 24 CFR 891.100(d). approved capital advance funds prior to efforts to obtain additional funding. The Project/Activity: Wellman House, Bath initial closing. project is economically designed and is County, VA; Project Number: 051–HD103/ Granted By: John C. Weicher, Assistant comparable in cost to similar projects VA36–Q011–006. Secretary for Housing—Federal Housing developed in the area. Nature of Requirement: Section 891.100(d) Commissioner. Contact: Willie Spearmon, Director, Office prohibits amendment of the amount of Date Granted: July 9, 2003. of Housing Assistance and Grant
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Administration, Department of Housing and Project/Activity: St. Agnes Manor, approved capital advance funds prior to Urban Development, 451 Seventh Street, Jeanerette, LA; Project Number: 064–EE125/ initial closing. SW., Washington, DC 20410–8000, telephone LA48–S011–006. Granted By: John C. Weicher, Assistant (202) 708–3000. Nature of Requirement: Section 891.100(d) Secretary for Housing—Federal Housing • Regulation: 24 CFR 891.100(d). prohibits amendment of the amount of Commissioner. Project/Activity: Falcon Senior Housing, approved capital advance funds prior to Date Granted: July 16, 2003. initial closing. Wilbraham, MA; Project Number: 023– Reason Waived: The sponsor exhausted all Granted By: John C. Weicher, Assistant EE122/MA06–S001–007. efforts to obtain additional funding. The Secretary for Housing—Federal Housing Nature of Requirement: Section 891.100(d) project is economically designed and is Commissioner. comparable in cost to similar projects prohibits amendment of the amount of Date Granted: July 15, 2003. approved capital advance funds prior to developed in the area. Reason Waived: The sponsor exhausted all Contact: Willie Spearmon, Director, Office initial closing. efforts to obtain additional funding. The Granted By: John C. Weicher, Assistant of Housing Assistance and Grant project is economically designed and is Administration, Department of Housing and Secretary for Housing—Federal Housing comparable in cost to similar projects Commissioner. Urban Development, 451 Seventh Street, developed in the area. Labor and material SW., Washington, DC 20410–8000, telephone Date Granted: July 15, 2003. costs increased after the area was hit by two Reason Waived: The sponsor exhausted all (202) 708–3000. hurricanes. • efforts to obtain additional funding. The Contact: Willie Spearmon, Director, Office Regulation: 24 CFR 891.100(d). project is economically designed and is of Housing Assistance and Grant Project/Activity: Colman Court, Cleveland, comparable in cost to similar projects Administration, Department of Housing and OH; Project Number: 042–EE135/OH12– developed in the area. Urban Development, 451 Seventh Street, S011–009. Contact: Willie Spearmon, Director, Office SW., Washington, DC 20410–8000, telephone Nature of Requirement: Section 891.100(d) of Housing Assistance and Grant (202) 708–3000. prohibits amendment of the amount of approved capital advance funds prior to Administration, Department of Housing and • Regulation: 24 CFR 891.100(d). Urban Development, 451 Seventh Street, initial closing. Project/Activity: Lutheran Homes #2, Oak Granted By: John C. Weicher, Assistant SW., Washington, DC 20410–8000, telephone Harbor, OH, Project Number: 042–EE130/ Secretary for Housing—Federal Housing (202) 708–3000. OH12–S011–004. Commissioner. • Regulation: 24 CFR 891.100(d). Nature of Requirement: Section 891.100(d) Date Granted: July 17, 2003. Project/Activity: Miller Avenue prohibits amendment of the amount of Reason Waived: The sponsor exhausted all Apartments, Duquesne, PA; Project Number: approved capital advance funds prior to efforts to obtain additional funding. The 033–EE108/PA28–S011–001. initial closing. project is economically designed and is Nature of Requirement: Section 891.100(d) Granted By: John C. Weicher, Assistant comparable in cost to similar projects prohibits amendment of the amount of Secretary for Housing—Federal Housing developed in the area. Commissioner. approved capital advance funds prior to Contact: Willie Spearmon, Director, Office initial closing. Date Granted: July 16, 2003. Reason Waived: The sponsor exhausted all of Housing Assistance and Grant Granted By: John C. Weicher, Assistant Administration, Department of Housing and Secretary for Housing—Federal Housing efforts to obtain additional funding. The project is economically designed and is Urban Development, 451 Seventh Street, Commissioner. SW., Washington, DC 20410–8000, telephone Date Granted: July 15, 2003. comparable in cost to similar projects developed in the area. (202) 708–3000. Reason Waived: The sponsor exhausted all • efforts to obtain additional funding. The Contact: Willie Spearmon, Director, Office Regulation: 24 CFR 891.100(d). project is economically designed and is of Housing Assistance and Grant Project/Activity: Culpeper Elderly, comparable in cost to similar projects Administration, Department of Housing and Culpeper, VA; Project Number: 051–EE074/ VA36–S001–001. developed in the area. Urban Development, 451 Seventh Street, Nature of Requirement: Section 891.100(d) Contact: Willie Spearmon, Director, Office SW., Washington, DC 20410–8000, telephone prohibits amendment of the amount of of Housing Assistance and Grant (202) 708–3000. approved capital advance funds prior to Administration, Department of Housing and • Regulation: 24 CFR 891.100(d). initial closing. Urban Development, 451 Seventh Street, Project/Activity: Crossroad II, Providence, Granted By: John C. Weicher, Assistant SW., Washington, DC 20410–8000, telephone RI; Project Number: 016–HD031/RI43–Q001– Secretary for Housing—Federal Housing (202) 708–3000. 001. Nature of Requirement: Section 891.100(d) Commissioner. • Regulation: 24 CFR 891.100(d). prohibits amendment of the amount of Date Granted: July 17, 2003. Project/Activity: Astoria Village, Sylmar, approved capital advance funds prior to Reason Waived: The sponsor exhausted all CA; Project Number: 122–HD145/CA16– initial closing. efforts to obtain additional funding. The Q011–005. Granted By: John C. Weicher, Assistant project is economically designed and is Nature of Requirement: Section 891.100(d) Secretary for Housing—Federal Housing comparable in cost to similar projects prohibits amendment of the amount of Commissioner. developed in the area. approved capital advance funds prior to Date Granted: July 16, 2003. Contact: Willie Spearmon, Director, Office initial closing. Reason Waived: The sponsor exhausted all of Housing Assistance and Grant Granted By: John C. Weicher, Assistant efforts to obtain additional funding from Administration, Department of Housing and Secretary for Housing—Federal Housing other sources. The project is economically Urban Development, 451 Seventh Street, Commissioner. designed and is comparable in cost to similar SW., Washington, DC 20410–8000, telephone Date Granted: July 15, 2003. projects developed in the area. (202) 708–3000. Reason Waived: The sponsor exhausted all Contact: Willie Spearmon, Director, Office • Regulation: 24 CFR 891.100(d). efforts to obtain additional funding. The of Housing Assistance and Grant Project/Activity: Paumanack Village V, project is economically designed and is Administration, Department of Housing and Melville, NY; Project Number: 012–EE308/ comparable in cost to similar projects Urban Development, 451 Seventh Street, NY36–S011–002. developed in the area. SW., Washington, DC 20410–8000, telephone Nature of Requirement: Section 891.100(d) Contact: Willie Spearmon, Director, Office (202) 708–3000. prohibits amendment of the amount of of Housing Assistance and Grant • Regulation: 24 CFR 891.100(d). approved capital advance funds prior to Administration, Department of Housing and Project/Activity: Tartan Village, initial closing. Urban Development, 451 Seventh Street, Kilmarnock, VA; Project Number: 051– Granted By: John C. Weicher, Assistant SW., Washington, DC 20410–8000, telephone EE082/VA36–S011–005. Secretary for Housing—Federal Housing (202) 708–3000. Nature of Requirement: Section 891.100(d) Commissioner. • Regulation: 24 CFR 891.100(d). prohibits amendment of the amount of Date Granted: July 21, 2003.
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Reason Waived: The sponsor exhausted all Administration, Department of Housing and Project Number: 052–EE048/MD06–S021– efforts to obtain additional funding. The Urban Development, 451 Seventh Street, 006. project is economically designed and is SW., Washington, DC 20410–8000, telephone Nature of Requirement: Section 891.100(d) comparable in cost to similar projects (202) 708–3000. prohibits amendment of the amount of developed in the area. • Regulation: 24 CFR 891.100(d). approved capital advance funds prior to Contact: Willie Spearmon, Director, Office Project/Activity: Lutheran Social Services initial closing. of Housing Assistance and Grant of New England, Middletown, CT, Project Granted By: John C. Weicher, Assistant Administration, Department of Housing and Number: 017–EE053/CT26–S991–004. Secretary for Housing—Federal Housing Urban Development, 451 Seventh Street, Nature of Requirement: Section 891.100(d) Commissioner. SW., Washington, DC 20410–8000, telephone prohibits amendment of the amount of Date Granted: August 20, 2003. (202) 708–3000. approved capital advance funds prior to Reason Waived: The sponsor exhausted all • Regulation: 24 CFR 891.100(d). initial closing. efforts to obtain additional funding. The Project/Activity: Volunteers Of America Granted By: John C. Weicher, Assistant project is economically designed and is (VOA) Elderly, Louisville, KY; Project Secretary for Housing—Federal Housing comparable in cost to similar projects Number: 083–EE082/KY36–S011–008. Commissioner. developed in the area. Nature of Requirement: Section 891.100(d) Date Granted: August 12, 2003. Contact: Willie Spearmon, Director, Office prohibits amendment of the amount of Reason Waived: The sponsor exhausted all of Housing Assistance and Grant approved capital advance funds prior to efforts to obtain additional funding. The Administration, Department of Housing and initial closing. project is economically designed and unique Urban Development, 451 Seventh Street, Granted By: John C. Weicher, Assistant among 202 projects because this 202 project SW., Washington, DC 20410–8000, telephone Secretary for Housing—Federal Housing is part of a condominium development. (202) 708–3000. Commissioner. Contact: Willie Spearmon, Director, Office • Regulation: 24 CFR 891.100(d). Date Granted: July 28, 2003. of Housing Assistance and Grant Project/Activity: Mountain View Home, Reason Waived: The sponsor exhausted all Administration, Department of Housing and McConnellsburg, PA; Project Number: 033– efforts to obtain additional funding. The Urban Development, 451 Seventh Street, EE106/PA28–S001–004. project is economically designed and is SW., Washington, DC 20410–8000, telephone Nature of Requirement: Section 891.100(d) comparable in cost to similar projects (202) 708–3000. prohibits amendment of the amount of developed in the area. • Regulation: 24 CFR 891.100(d). approved capital advance funds prior to Contact: Willie Spearmon, Director, Office Project/Activity: Victory Gardens, New initial closing. of Housing Assistance and Grant Haven, CT; Project Number: 017–EE066/ Granted By: John C. Weicher, Assistant Administration, Department of Housing and CT26–S011–002. Secretary for Housing—Federal Housing Urban Development, 451 Seventh Street, Nature of Requirement: Section 891.100(d) Commissioner. SW., Washington, DC 20410–8000, telephone prohibits amendment of the amount of Date Granted: September 4, 2003. (202) 708–3000. approved capital advance funds prior to Reason Waived: The sponsor exhausted all • Regulation: 24 CFR 891.100(d). initial closing. efforts to obtain additional funding. The Project/Activity: Melvin T. Walls Manor, Granted By: John C. Weicher, Assistant project is economically designed and is Ypsilanti, MI; Project Number: 044–EE070/ Secretary for Housing—Federal Housing comparable in cost to similar projects MI28–S000–003. Commissioner. developed in the area. Nature of Requirement: Section 891.100(d) Date Granted: August 12, 2003. Contact: Willie Spearmon, Director, Office prohibits amendment of the amount of Reason Waived: The sponsor exhausted all of Housing Assistance and Grant approved capital advance funds prior to efforts to obtain additional funding. The Administration, Department of Housing and initial closing. project is economically designed and is Urban Development, 451 Seventh Street, Granted By: John C. Weicher, Assistant comparable in cost to similar projects SW., Washington, DC 20410–8000, telephone Secretary for Housing—Federal Housing developed in the area. (202) 708–3000. Commissioner. Contact: Willie Spearmon, Director, Office • Regulation: 24 CFR 891.100(d). Date Granted: August 6, 2003. of Housing Assistance and Grant Project/Activity: Pine Street Inn, Reason Waived: The sponsor exhausted all Administration, Department of Housing and Dorchester, MA; Project Number: 023–EE098/ efforts to obtain additional funding. The Urban Development, 451 Seventh Street, MA06–S981–003. project is economically designed and is SW., Washington, DC 20410–8000, telephone Nature of Requirement: Section 891.100(d) comparable in cost to similar projects (202) 708–3000. prohibits amendment of the amount of developed in the area. • Regulation: 24 CFR 891.100(d). approved capital advance funds prior to Contact: Willie Spearmon, Director, Office Project/Activity: Abilities of San Juan, initial closing. of Housing Assistance and Grant Melbourne, FL; Project Number: 067–HD088/ Granted By: John C. Weicher, Assistant Administration, Department of Housing and FL29–Q021–002. Secretary for Housing—Federal Housing Urban Development, 451 Seventh Street, Nature of Requirement: Section 891.100(d) Commissioner. SW., Washington, DC 20410–8000, telephone prohibits amendment of the amount of Date Granted: September 5, 2003. (202) 708–3000. approved capital advance funds prior to Reason Waived: The sponsor exhausted all • Regulation: 24 CFR 891.100(d). initial closing. efforts to obtain additional funding. The Project/Activity: Ada S. McKinley 4, Granted By: John C. Weicher, Assistant project is economically designed and is Chicago, IL; Project Number: 071–HD110/ Secretary for Housing—Federal Housing comparable in cost to similar projects IL06–Q981–003. Commissioner. developed in the area. Nature of Requirement: Section 891.100(d) Date Granted: August 19, 2003. Contact: Willie Spearmon, Director, Office prohibits amendment of the amount of Reason Waived: The sponsor exhausted all of Housing Assistance and Grant approved capital advance funds prior to efforts to obtain additional funding. The Administration, Department of Housing and initial closing. project is economically designed and is Urban Development, 451 Seventh Street, Granted By: John C. Weicher, Assistant comparable in cost to similar projects SW., Washington, DC 20410–8000, telephone Secretary for Housing—Federal Housing developed in the area. (202) 708–3000. Commissioner. Contact: Willie Spearmon, Director, Office • Regulation: 24 CFR 891.100(d). Date Granted: August 12, 2003. of Housing Assistance and Grant Project/Activity: The Salvation Army Reason Waived: The sponsor exhausted all Administration, Department of Housing and Evangeline Booth Garden Apartments, efforts to obtain additional funding. The Urban Development, 451 Seventh Street, Pasadena, TX; Project Number: 114–EE095/ project is economically designed and is SW., Washington, DC 20410–8000, telephone TX24–S011–008. comparable in cost to similar projects (202) 708–3000. Nature of Requirement: Section 891.100(d) developed in the area. • Regulation: 24 CFR 891.100(d). prohibits amendment of the amount of Contact: Willie Spearmon, Director, Office Project/Activity: Weinberg Apartments at approved capital advance funds prior to of Housing Assistance and Grant Owings Mills, Phase I, Owings Mills, MD; initial closing.
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Granted By: John C. Weicher, Assistant comparable in cost to similar projects SW., Washington, DC 20410–8000, telephone Secretary for Housing—Federal Housing developed in the area. (202) 708–3000. Commissioner. Contact: Willie Spearmon, Director, Office • Regulation: 24 CFR 891.100(d). Date Granted: September 5, 2003. of Housing Assistance and Grant Project/Activity: Gates Gardens Senior Reason Waived: The sponsor exhausted all Administration, Department of Housing and Housing, Brooklyn, NY; Project Number: efforts to obtain additional funding. The Urban Development, 451 Seventh Street, 012–EE312/NY36–S011–006. project is economically designed and is SW., Washington, DC 20410–8000, telephone Nature of Requirement: Section 891.100(d) comparable in cost to similar projects (202) 708–3000. prohibits amendment of the amount of developed in the area. • Regulation: 24 CFR 891.100(d). approved capital advance funds prior to Contact: Willie Spearmon, Director, Office Project/Activity: Creekside Gardens, Paso initial closing. of Housing Assistance and Grant Robles, CA; Project Number: 122–EE162/ Granted By: John C. Weicher, Assistant Administration, Department of Housing and CA16–S991–013. Secretary for Housing—Federal Housing Urban Development, 451 Seventh Street, Nature of Requirement: Section 891.100(d) Commissioner. SW., Washington, DC 20410–8000, telephone prohibits amendment of the amount of Date Granted: September 10, 2003. (202) 708–3000. Reason Waived: The sponsor exhausted all • approved capital advance funds prior to Regulation: 24 CFR 891.100(d). initial closing. efforts to obtain additional funding. The Project/Activity: Wofford Park, Hattiesburg, Granted By: John C. Weicher, Assistant project is economically designed and is MS; Project Number: 065–HD029/MS26– Secretary for Housing—Federal Housing comparable in cost to similar projects Q021–002. Commissioner. developed in the area. Nature of Requirement: Section 891.100(d) Date Granted: September 10, 2003. Contact: Willie Spearmon, Director, Office prohibits amendment of the amount of Reason Waived: The sponsor exhausted all of Housing Assistance and Grant approved capital advance funds prior to efforts to obtain additional funding. The Administration, Department of Housing and initial closing. project is economically designed and is Urban Development, 451 Seventh Street, Granted By: John C. Weicher, Assistant comparable in cost to similar projects SW., Washington, DC 20410–8000, telephone Secretary for Housing—Federal Housing developed in the area. (202) 708–3000. Commissioner. • Regulation: 24 CFR 891.100(d). Contact: Willie Spearmon, Director, Office Date Granted: September 9, 2003. Project/Activity: Scuffling Hill Road Group of Housing Assistance and Grant Reason Waived: The sponsor exhausted all Home, Rocky Mount, VA; Project Number: Administration, Department of Housing and efforts to obtain additional funding. The 051–HD099/VA36–Q011–002. Urban Development, 451 Seventh Street, project is economically designed and is Nature of Requirement: Section 891.100(d) SW., Washington, DC 20410–8000, telephone comparable in cost to similar projects prohibits amendment of the amount of (202) 708–3000. developed in the area. approved capital advance funds prior to • Contact: Willie Spearmon, Director, Office Regulation: 24 CFR 891.100(d). initial closing. of Housing Assistance and Grant Project/Activity: Congress Street Granted By: John C. Weicher, Assistant Administration, Department of Housing and Apartments, New Port Richey, FL; Project Secretary for Housing—Federal Housing Urban Development, 451 Seventh Street, Number: 067–HD077/FL29–Q001–001. Commissioner. SW., Washington, DC 20410–8000, telephone Nature of Requirement: Section 891.100(d) Date Granted: September 11, 2003. (202) 708–3000. prohibits amendment of the amount of Reason Waived: The sponsor exhausted all • Regulation: 24 CFR 891.100(d). approved capital advance funds prior to efforts to obtain additional funding. The Project/Activity: Timber Lawn Place, initial closing. project is economically designed and is Jackson, MS; Project Number: 065–EE034/ Granted By: John C. Weicher, Assistant comparable in cost to similar projects MS26–S011–003. Secretary for Housing—Federal Housing developed in the area. Nature of Requirement: Section 891.100(d) Commissioner. Contact: Willie Spearmon, Director, Office prohibits amendment of the amount of Date Granted: September 10, 2003. of Housing Assistance and Grant approved capital advance funds prior to Reason Waived: The sponsor exhausted all Administration, Department of Housing and initial closing. efforts to obtain additional funding. The Urban Development, 451 Seventh Street, Granted By: John C. Weicher, Assistant project is economically designed and is SW., Washington, DC 20410–8000, telephone Secretary for Housing—Federal Housing comparable in cost to similar projects (202) 708–3000. Commissioner. developed in the area. • Regulation: 24 CFR 891.100(d). Date Granted: September 9, 2003. Contact: Willie Spearmon, Director, Office Project/Activity: Belmeno Manor, Long Reason Waived: The sponsor exhausted all of Housing Assistance and Grant Beach, CA; Project Number: 122–HD146/ efforts to obtain additional funding. The Administration, Department of Housing and CA16–Q011–006. project is economically designed and is Urban Development, 451 Seventh Street, Nature of Requirement: Section 891.100(d) comparable in cost to similar projects SW., Washington, DC 20410–8000, telephone prohibits amendment of the amount of developed in the area. (202) 708–3000. approved capital advance funds prior to Contact: Willie Spearmon, Director, Office • Regulation: 24 CFR 891.100(d). initial closing. of Housing Assistance and Grant Project/Activity: Casimir House, Gardena, Granted By: John C. Weicher, Assistant Administration, Department of Housing and CA; Project Number: 122–HD142/CA16– Secretary for Housing—Federal Housing Urban Development, 451 Seventh Street, Q011–002. Commissioner. SW., Washington, DC 20410–8000, telephone Nature of Requirement: Section 891.100(d) Date Granted: September 12, 2003. (202) 708–3000. prohibits amendment of the amount of Reason Waived: The sponsor exhausted all • Regulation: 24 CFR 891.100(d). approved capital advance funds prior to efforts to obtain additional funding. The Project/Activity: Piedmont Drive Group initial closing. project is economically designed and is Home, Spotsylvania, VA; Project Number: Granted By: John C. Weicher, Assistant comparable in cost to similar projects 051–HD086/VA36–Q001–001. Secretary for Housing—Federal Housing developed in the area. Nature of Requirement: Section 891.100(d) Commissioner. Contact: Willie Spearmon, Director, Office prohibits amendment of the amount of Date Granted: September 10, 2003. of Housing Assistance and Grant approved capital advance funds prior to Reason Waived: The sponsor exhausted all Administration, Department of Housing and initial closing. efforts to obtain additional funding. The Urban Development, 451 Seventh Street, Granted By: John C. Weicher, Assistant project is economically designed and is SW., Washington, DC 20410–8000, telephone Secretary for Housing—Federal Housing comparable in cost to similar projects (202) 708–3000. Commissioner. developed in the area. • Regulation: 24 CFR 891.100(d). Date Granted: September 10, 2003. Contact: Willie Spearmon, Director, Office Project/Activity: National Church Reason Waived: The sponsor exhausted all of Housing Assistance and Grant Residence (NCR) of North Fairmount, efforts to obtain additional funding. The Administration, Department of Housing and Cincinnati, OH; Project Number: 046–EE056/ project is economically designed and is Urban Development, 451 Seventh Street, OH10–2001–004.
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Nature of Requirement: Section 891.100(d) Date Granted: September 12, 2003. Contact: Willie Spearmon, Director, Office prohibits amendment of the amount of Reason Waived: The sponsor exhausted all of Housing Assistance and Grant approved capital advance funds prior to efforts to obtain additional funding. The Administration, Department of Housing and initial closing. project is economically designed and is Urban Development, 451 Seventh Street, Granted By: John C. Weicher, Assistant comparable in cost to similar projects SW., Washington, DC 20410–8000, telephone Secretary for Housing—Federal Housing developed in the area. (202) 708–3000. Commissioner. Contact: Willie Spearmon, Director, Office • Regulation: 24 CFR 891.100(d). Date Granted: September 12, 2003. of Housing Assistance and Grant Project/Activity: Vermont Seniors, Los Reason Waived: The sponsor exhausted all Administration, Department of Housing and Angeles, CA; Project Number: 122–EE148/ efforts to obtain additional funding. The Urban Development, 451 Seventh Street, CA16–S981–017S. project is economically designed and is SW., Washington, DC 20410–8000, telephone Nature of Requirement: Section 891.100(d) comparable in cost to similar projects (202) 708–3000. prohibits amendment of the amount of developed in the area. • Regulation: 24 CFR 891.100(d). approved capital advance funds prior to Contact: Willie Spearmon, Director, Office Project/Activity: Reseda Horizon, initial closing. of Housing Assistance and Grant Granted By: John C. Weicher, Assistant Administration, Department of Housing and Northridge, CA; Project Number: 122– HD136/CA16–Q001–007. Secretary for Housing—Federal Housing Urban Development, 451 Seventh Street, Commissioner. SW., Washington, DC 20410–8000, telephone Nature of Requirement: Section 891.100(d) prohibits amendment of the amount of Date Granted: September 16, 2003. (202) 708–3000. Reason Waived: The sponsor exhausted all • approved capital advance funds prior to Regulation: 24 CFR 891.100(d). initial closing. efforts to obtain additional funding. The Project/Activity: St. Brendan Senior Granted By: John C. Weicher, Assistant project is economically designed and is Housing, Chicago, IL; Project Number: 071– Secretary for Housing—Federal Housing comparable in cost to similar projects EE159/IL06–S001–005. Commissioner. developed in the area. Nature of Requirement: Section 891.100(d) Date Granted: September 13, 2003. Contact: Willie Spearmon, Director, Office prohibits amendment of the amount of Reason Waived: The sponsor exhausted all of Housing Assistance and Grant approved capital advance funds prior to Administration, Department of Housing and efforts to obtain additional funding. The initial closing. Urban Development, 451 Seventh Street, project is economically designed and is Granted By: John C. Weicher, Assistant SW., Washington, DC 20410–8000, telephone comparable in cost to similar projects Secretary for Housing—Federal Housing (202) 708–3000. developed in the area. Commissioner. • Contact: Willie Spearmon, Director, Office Regulation: 24 CFR 891.100(d). Date Granted: September 12, 2003. of Housing Assistance and Grant Project/Activity: Berry Wood (also known Reason Waived: The sponsor exhausted all Administration, Department of Housing and as Deerfield Plaza), Deerfield Township, OH; efforts to obtain additional funding. The Urban Development, 451 Seventh Street, Project Number: 046–EE058/OH10–S011– project is economically designed and is SW., Washington, DC 20410–8000, telephone 002. comparable in cost to similar projects Nature of Requirement: Section 891.100(d) developed in the area. (202) 708–3000. • prohibits amendment of the amount of Contact: Willie Spearmon, Director, Office Regulation: 24 CFR 891.100(d). approved capital advance funds prior to of Housing Assistance and Grant Project/Activity: Bishop Goedert initial closing. Administration, Department of Housing and Residence, Hines, IL; Project Number: 071– Granted By: John C. Weicher, Assistant Urban Development, 451 Seventh Street, EE178/IL06–S021–006. Secretary for Housing—Federal Housing SW., Washington, DC 20410–8000, telephone Nature of Requirement: Section 891.100(d) Commissioner. (202) 708–3000. prohibits amendment of the amount of Date Granted: September 16, 2003. • Regulation: 24 CFR 891.100(d). approved capital advance funds prior to Reason Waived: The sponsor exhausted all Project/Activity: Calvary Senior Center, initial closing. efforts to obtain additional funding. The Springfield, IL; Project Number: 072–EE141/ Granted By: John C. Weicher, Assistant project is economically designed and is IL06–S011–003. Secretary for Housing—Federal Housing comparable in cost to similar projects Nature of Requirement: Section 891.100(d) Commissioner. developed in the area. prohibits amendment of the amount of Date Granted: September 16, 2003. Contact: Willie Spearmon, Director, Office approved capital advance funds prior to Reason Waived: The sponsor exhausted all of Housing Assistance and Grant initial closing. efforts to obtain additional funding. The Administration, Department of Housing and Granted By: John C. Weicher, Assistant project is economically designed and is Urban Development, 451 Seventh Street, Secretary for Housing—Federal Housing comparable in cost to similar projects SW., Washington, DC 20410–8000, telephone Commissioner. developed in the area. (202) 708–3000. Contact: Willie Spearmon, Director, Office Date Granted: September 12, 2003. • Regulation: 24 CFR 891.100(d). of Housing Assistance and Grant Reason Waived: The sponsor exhausted all Project/Activity: Villa at Marian Park, efforts to obtain additional funding. The Administration, Department of Housing and Akron, OH; Project Number: 042–EE112/ project is economically designed and is Urban Development, 451 Seventh Street, OH12–S991–005. comparable in cost to similar projects SW., Washington, DC 20410–8000, telephone Nature of Requirement: Section 891.100(d) developed in the area. (202) 708–3000. prohibits amendment of the amount of Contact: Willie Spearmon, Director, Office • Regulation: 24 CFR 891.100(d). approved capital advance funds prior to of Housing Assistance and Grant Project/Activity: Newell Retirement initial closing. Administration, Department of Housing and Apartments, San Antonio, TX; Project Granted By: John C. Weicher, Assistant Urban Development, 451 Seventh Street, Number: 115–EE062/TX59–S011–002. Secretary for Housing—Federal Housing SW., Washington, DC 20410–8000, telephone Nature of Requirement: Section 891.100(d) Commissioner. (202) 708–3000. prohibits amendment of the amount of Date Granted: September 17, 2003. • Regulation: 24 CFR 891.100(d). approved capital advance funds prior to Reason Waived: The sponsor exhausted all Project/Activity: Greenfield Manor, Los initial closing. efforts to obtain additional funding. The Angeles, CA; Project Number: 122–HD144/ Granted By: John C. Weicher, Assistant project is economically designed and is CA16–Q011–004. Secretary for Housing—Federal Housing comparable in cost to similar projects Nature of Requirement: Section 891.100(d) Commissioner. developed in the area. prohibits amendment of the amount of Date Granted: September 16, 2003. Contact: Willie Spearmon, Director, Office approved capital advance funds prior to Reason Waived: The sponsor exhausted all of Housing Assistance and Grant initial closing. efforts to obtain additional funding. The Administration, Department of Housing and Granted By: John C. Weicher, Assistant project is economically designed and is Urban Development, 451 Seventh Street, Secretary for Housing—Federal Housing comparable in cost to similar projects SW., Washington, DC 20410–8000, telephone Commissioner. developed in the area. (202) 708–3000.
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• Regulation: 24 CFR 891.100(d). approved capital advance funds prior to project is economically designed and is Project/Activity: Judson Village, initial closing. comparable in cost to similar projects Cincinnati, OH; Project Number: 046–HD024/ Granted By: John C. Weicher, Assistant developed in the area. OH10–Q011–001. Secretary for Housing—Federal Housing Contact: Willie Spearmon, Director, Office Nature of Requirement: Section 891.100(d) Commissioner. of Housing Assistance and Grant prohibits amendment of the amount of Date Granted: September 23, 2003. Administration, Department of Housing and approved capital advance funds prior to Reason Waived: The sponsor exhausted all Urban Development, 451 Seventh Street, initial closing. efforts to obtain additional funding. The SW., Washington, DC 20410–8000, telephone Granted By: John C. Weicher, Assistant project is economically designed and is (202) 708–3000. Secretary for Housing—Federal Housing comparable in cost to similar projects • Regulation: 24 CFR 891.100(d). Commissioner. developed in the area. Project/Activity: Goodson Manor, Date Granted: September 22, 2003. Contact: Willie Spearmon, Director, Office Farmville, VA; Project Number: 051–EE077/ Reason Waived: The sponsor exhausted all of Housing Assistance and Grant VA36–S001–004. efforts to obtain additional funding. The Administration, Department of Housing and Nature of Requirement: Section 891.100(d) project is economically designed and is Urban Development, 451 Seventh Street, prohibits amendment of the amount of comparable in cost to similar projects SW., Washington, DC 20410–8000, telephone approved capital advance funds prior to developed in the area. (202) 708–3000. initial closing. Contact: Willie Spearmon, Director, Office • Regulation: 24 CFR 891.100(d). Granted By: John C. Weicher, Assistant of Housing Assistance and Grant Project/Activity: Annie Mae’s Prayer Secretary for Housing—Federal Housing Administration, Department of Housing and Garden Apartments, Ville Platte, LA; Project Commissioner. Urban Development, 451 Seventh Street, Number: 064–HD069/LA48–Q021–002. Date Granted: September 26, 2003. SW., Washington, DC 20410–8000, telephone Nature of Requirement: Section 891.100(d) Reason Waived: The sponsor exhausted all (202) 708–3000. prohibits amendment of the amount of efforts to obtain additional funding. The • Regulation: 24 CFR 891.100(d). approved capital advance funds prior to project is economically designed and is Project/Activity: Mountain Valley Haven, initial closing. comparable in cost to similar projects Hayfork, CA; Project Number: 136–EE065/ Granted By: John C. Weicher, Assistant developed in the area. Secretary for Housing—Federal Housing CA30–S011–002. Contact: Willie Spearmon, Director, Office Commissioner. Nature of Requirement: Section 891.100(d) of Housing Assistance and Grant Date Granted: September 24, 2003. prohibits amendment of the amount of Administration, Department of Housing and Reason Waived: The sponsor exhausted all approved capital advance funds prior to Urban Development, 451 Seventh Street, efforts to obtain additional funding. The initial closing. SW., Washington, DC 20410–8000, telephone project is economically designed and is (202) 708–3000. Granted By: John C. Weicher, Assistant comparable in cost to similar projects • Regulation: 24 CFR 891.100(d). Secretary for Housing—Federal Housing developed in the area. Project/Activity: Laurel Creek, Cookeville, Commissioner. Contact: Willie Spearmon, Director, Office Date Granted: September 22, 2003. of Housing Assistance and Grant TN; Project Number: 086–EE039/TN43– Reason Waived: The sponsor exhausted all Administration, Department of Housing and S011–005. efforts to obtain additional funding. The Urban Development, 451 Seventh Street, Nature of Requirement: Section 891.100(d) project is economically designed and is SW., Washington, DC 20410–8000, telephone prohibits amendment of the amount of comparable in cost to similar projects (202) 708–3000. approved capital advance funds prior to developed in the area. • Regulation: 24 CFR 891.100(d). initial closing. Contact: Willie Spearmon, Director, Office Project/Activity: 646 South Pearl Street, Granted By: John C. Weicher, Assistant of Housing Assistance and Grant Albany, NY; Project Number: 014–HD107/ Secretary for Housing—Federal Housing Administration, Department of Housing and NY06–Q021–002. Commissioner. Urban Development, 451 Seventh Street, Nature of Requirement: Section 891.100(d) Date Granted: September 30, 2003. SW., Washington, DC 20410–8000, telephone prohibits amendment of the amount of Reason Waived: The sponsor exhausted all (202) 708–3000. approved capital advance funds prior to efforts to obtain additional funding. The project is economically designed and is • Regulation: 24 CFR 891.100(d). initial closing. comparable in cost to similar projects Project/Activity: Southampton Arch Group Granted By: John C. Weicher, Assistant developed in the area. Home, Portsmouth, VA; Project Number: Secretary for Housing—Federal Housing Contact: Willie Spearmon, Director, Office 051–HD090/VA36–Q001–005. Commissioner. of Housing Assistance and Grant Nature of Requirement: Section 891.100(d) Date Granted: September 25, 2003. Administration, Department of Housing and prohibits amendment of the amount of Reason Waived: The sponsor exhausted all Urban Development, 451 Seventh Street, approved capital advance funds prior to efforts to obtain additional funding. The SW., Washington, DC 20410–8000, telephone initial closing. project is economically designed and is comparable in cost to similar projects (202) 708–3000. Granted By: John C. Weicher, Assistant • Secretary for Housing—Federal Housing developed in the area. Regulation: 24 CFR 891.100(d) and 24 Commissioner. Contact: Willie Spearmon, Director, Office CFR 891.165. Date Granted: September 23, 2003. of Housing Assistance and Grant Project/Activity: Flury Place, Elkridge, MD; Reason Waived: The sponsor exhausted all Administration, Department of Housing and Project Number: 052–HD034/MD06–Q981– efforts to obtain additional funding. The Urban Development, 451 Seventh Street, 004. SW., Washington, DC 20410–8000, telephone project is economically designed and is Nature of Requirement: Section 891.100(d) (202) 708–3000. comparable in cost to similar projects prohibits amendment of the amount of • developed in the area. Regulation: 24 CFR 891.100(d). approved capital advance funds prior to Contact: Willie Spearmon, Director, Office Project/Activity: Mt. St. Mary’s, initial closing. Section 891.165 provides that of Housing Assistance and Grant Tonawanda, NY; Project Number: 014– the duration of the fund reservation of the capital advance is 18 months from the date Administration, Department of Housing and EE198/NY06–S001–004. of issuance with limited exceptions up to 24 Urban Development, 451 Seventh Street, Nature of Requirement: Section 891.100(d) months, as approved by HUD on a case-by- SW., Washington, DC 20410–8000, telephone prohibits amendment of the amount of case basis. (202) 708–3000. approved capital advance funds prior to initial closing. Granted By: John C. Weicher, Assistant • Regulation: 24 CFR 891.100(d). Granted By: John C. Weicher, Assistant Secretary for Housing—Federal Housing Project/Activity: Rainbow Village II, Secretary for Housing—Federal Housing Commissioner. Houston, TX; Project Number: 114–EE079/ Commissioner. Date Granted: July 7, 2003. TX24–S991–008. Date Granted: September 25, 2003. Reason Waived: The sponsor exhausted all Nature of Requirement: Section 891.100(d) Reason Waived: The sponsor exhausted all efforts to obtain additional funding. The prohibits amendment of the amount of efforts to obtain additional funding. The project is economically designed and is
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comparable in cost to similar projects • Regulation: 24 CFR 891.100(d) and 24 capital advance is 18 months from the date developed in the area. The project CFR 891.165. of issuance with limited exceptions up to 24 experienced delays due to the need to resolve Project/Activity: Belmont Boulevard II months, as approved by HUD on a case-by- problems regarding the sewer line connection Apartments, Bronx, NY; Project Number: case basis. and to determine if the noise level was 012–EE237/NY36–S971–024. Granted By: John C. Weicher, Assistant acceptable. Nature of Requirement: Section 891.100(d) Secretary for Housing—Federal Housing Contact: Willie Spearmon, Director, Office prohibits amendment of the amount of Commissioner. of Housing Assistance and Grant approved capital advance funds prior to Date Granted: August 12, 2003. Administration, Department of Housing and initial closing. Section 891.165 provides that Reason Waived: The sponsor exhausted all Urban Development, 451 Seventh Street, the duration of the fund reservation of the efforts to obtain additional funding. The SW., Washington, DC 20410–8000, telephone capital advance is 18 months from the date project is economically designed and is (202) 708–3000. of issuance with limited exceptions up to 24 comparable in cost to similar projects • Regulation: 24 CFR 891.100(d) and 24 months, as approved by HUD on a case-by- developed in the area. The project was CFR 891.165. case basis. delayed due to local residents’ objections to Project/Activity: Montbello Volunteers of Granted By: John C. Weicher, Assistant the project’s design. America (VOA) Elderly, Denver, CO; Project Secretary for Housing—Federal Housing Contact: Willie Spearmon, Director, Office Number: 101–EE039/CO99–S001–001. Commissioner. of Housing Assistance and Grant Nature of Requirement: Section 891.100(d) Date Granted: August 8, 2003. Administration, Department of Housing and prohibits amendment of the amount of Reason Waived: The sponsor exhausted all Urban Development, 451 Seventh Street, approved capital advance funds prior to efforts to obtain additional funding. The SW., Washington, DC 20410–8000, telephone initial closing. Section 891.165 provides that project is economically designed and is (202) 708–3000. the duration of the fund reservation of the comparable in cost to similar projects • Regulation: 24 CFR 891.100(d) and 24 capital advance is 18 months from the date developed in the area. The project incurred CFR 891.165. of issuance with limited exceptions up to 24 delays due to the need to resolve site Project/Activity: The Pavillion at months, as approved by HUD on a case-by- remediation issues. Immaculate Conception, Bronx, NY; Project case basis. Contact: Willie Spearmon, Director, Office Number: 012–EE247/NY36–S981–003. Granted By: John C. Weicher, Assistant of Housing Assistance and Grant Nature of Requirement: Section 891.100(d) Secretary for Housing—Federal Housing Administration, Department of Housing and prohibits amendment of the amount of Commissioner. Urban Development, 451 Seventh Street, approved capital advance funds prior to Date Granted: July 29, 2003. SW., Washington, DC 20410–8000, telephone initial closing. Section 891.165 provides that Reason Waived: The sponsor exhausted all (202) 708–3000. the duration of the fund reservation of the efforts to obtain additional funding. The • Regulation: 24 CFR 891.100(d) and 24 capital advance is 18 months from the date project is economically designed and is CFR 891.165. of issuance with limited exceptions up to 24 comparable in cost to similar projects Project/Activity: St. Josephs Memorial months, as approved by HUD on a case-by- developed in the area. Also, additional time Center (SJMC) Senior Housing, Yonkers, NY; case basis. was needed for HUD to process the firm Project Number: 012–EE265/NY36–S991– Granted By: John C. Weicher, Assistant commitment application in order for the 005. Secretary for Housing—Federal Housing project to reach initial closing. Nature of Requirement: Section 891.100(d) Commissioner. Contact: Willie Spearmon, Director, Office prohibits amendment of the amount of Date Granted: August 13, 2003. of Housing Assistance and Grant approved capital advance funds prior to Reason Waived: The sponsor exhausted all Administration, Department of Housing and initial closing. Section 891.165 provides that efforts to obtain additional funding. The Urban Development, 451 Seventh Street, the duration of the fund reservation of the project is economically designed and is SW., Washington, DC 20410–8000, telephone capital advance is 18 months from the date comparable in cost to similar projects (202) 708–3000. of issuance with limited exceptions up to 24 developed in the area. The project • Regulation: 24 CFR 891.100(d) and 24 months, as approved by HUD on a case-by- experienced delays when it encountered CFR 891.165. case basis. problems securing and maintaining a general Project/Activity: PSCH Ozone Park Granted By: John C. Weicher, Assistant contractor. Residence, Ozone Park, NY; Project Number: Secretary for Housing—Federal Housing Contact: Willie Spearmon, Director, Office 012–HD100/NY36–Q001–005. Commissioner. of Housing Assistance and Grant Nature of Requirement: Section 891.100(d) Date Granted: August 12, 2003. Administration, Department of Housing and prohibits amendment of the amount of Reason Waived: The sponsor exhausted all Urban Development, 451 Seventh Street, approved capital advance funds prior to efforts to obtain additional funding. The SW., Washington, DC 20410–8000, telephone initial closing. Section 891.165 provides that project is economically designed and is (202) 708–3000. the duration of the fund reservation of the comparable in cost to similar projects • Regulation: 24 CFR 891.100(d) and 24 capital advance is 18 months from the date developed in the area. The project was of issuance with limited exceptions up to 24 CFR 891.165. delayed due to a 3-year local approval Project/Activity: Frederick Court, Brewster, months, as approved by HUD on a case-by- process for compliance with the case basis. MA; Project Number: 023–EE121/MA06– requirements of the Advisory Council on S001–006. Granted By: John C. Weicher, Assistant Historic Preservation, rezoning, and site Secretary for Housing—Federal Housing Nature of Requirement: Section 891.100(d) preparation. prohibits amendment of the amount of Commissioner. Contact: Willie Spearmon, Director, Office Date Granted: August 6, 2003. approved capital advance funds prior to of Housing Assistance and Grant Reason Waived: The sponsor exhausted all initial closing. Section 891.165 provides that Administration, Department of Housing and efforts to obtain additional funding. The the duration of the fund reservation of the Urban Development, 451 Seventh Street, project is economically designed and is capital advance is 18 months from the date SW., Washington, DC 20410–8000, telephone comparable in cost to similar projects of issuance with limited exceptions up to 24 developed in the area. The project was (202) 708–3000. months, as approved by HUD on a case-by- delayed due to the sponsor’s inability to • Regulation: 24 CFR 891.100(d) and 24 case basis. obtain site control for the original site and CFR 891.165. Granted By: John C. Weicher, Assistant the difficulty encountered in securing a Project/Activity: Bolton Senior Housing, Secretary for Housing—Federal Housing replacement site. Bolton, MA; Project Number: 023–EE080/ Commissioner. Contact: Willie Spearmon, Director, Office MA06–S961–016. Date Granted: August 13, 2003. of Housing Assistance and Grant Nature of Requirement: Section 891.100(d) Reason Waived: The sponsor exhausted all Administration, Department of Housing and prohibits amendment of the amount of efforts to obtain additional funding. The Urban Development, 451 Seventh Street, approved capital advance funds prior to project is economically designed and is SW., Washington, DC 20410–8000, telephone initial closing. Section 891.165 provides that comparable in cost to similar projects (202) 708–3000. the duration of the fund reservation of the developed in the area. The project was
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delayed due to issues in approving the Project/Activity: Ozone Park Residence, reservation for the capital advance is 18 ground lease for the site. Ozone Park, NY; Project Number: 012– months from the date of issuance with Contact: Willie Spearmon, Director, Office HD100/NY36–Q001–005. limited exceptions up to 24 months, as of Housing Assistance and Grant Nature of Requirement: Section 891.120(b) approved by HUD on a case-by-case basis. Administration, Department of Housing and requires projects to comply with the Uniform Granted By: John C. Weicher, Assistant Urban Development, 451 Seventh Street, Federal Accessibility Standards, section 504 Secretary for Housing—Federal Housing SW., Washington, DC 20410–8000, telephone of the Rehabilitation Act of 1973, and HUD’s Commissioner. (202) 708–3000. regulations governing new construction of Date Granted: July 1, 2003. multifamily housing projects and the design Reason Waived: The sponsor had to change • Regulation: 24 CFR 891.100(d) and 24 and construction requirements of the Fair sites and needed time to prepare contract CFR 891.165. Housing Act. Section 891.310(b)(1) requires documents for the new site. Project/Activity: St. Francis Cabrini that all entrances, common areas, units to be Contact: Willie Spearmon, Director, Office Gardens, Coram, NY; Project Number: 012– occupied by resident staff, and amenities of Housing Assistance and Grant EE288/NY36–S001–003. must be readily accessible to and usable by Administration, Department of Housing and Nature of Requirement: Section 891.100(d) persons with disabilities. Urban Development, 451 Seventh Street, prohibits amendment of the amount of Granted By: John C. Weicher, Assistant SW., Washington, DC 20410–8000, telephone approved capital advance funds prior to Secretary for Housing—Federal Housing (202) 708–3000. initial closing. Section 891.165 provides that Commissioner. • Regulation: 24 CFR 891.165. the duration of the fund reservation of the Date Granted: August 19, 2003. Project/Activity: Myrtle Davis Senior capital advance is 18 months from the date Reason Waived: The sponsor indicated that Complex, Milwaukee, WI; Project Number: of issuance with limited exceptions up to 24 fewer than five percent of the individuals 075–EE095/WI39–S001–003. months, as approved by HUD on a case-by- that are served under their programs require Nature of Requirement: Section 891.165 case basis. accessible housing. The home is a two-story provides that the duration of the fund Granted By: John C. Weicher, Assistant residence and it would be financially reservation for the capital advance is 18 Secretary for Housing—Federal Housing infeasible to make the home fully accessible. months from the date of issuance with The sponsor already has two other sites that Commissioner. limited exceptions up to 24 months, as will be fully accessible, and there should be Date Granted: August 13, 2003. approved by HUD on a case-by-case basis. a sufficient number of accessible units for Reason Waived: The sponsor exhausted all Granted By: John C. Weicher, Assistant potential residents with physical disabilities. efforts to obtain additional funding. The Secretary for Housing—Federal Housing Contact: Willie Spearmon, Director, Office project is economically designed and is Commissioner. of Housing Assistance and Grant comparable in cost to similar projects Date Granted: July 2, 2003. Administration, Department of Housing and Reason Waived: Additional time was developed in the area. The project was Urban Development, 451 Seventh Street, needed for HUD to process the firm delayed due to the lengthy local approval SW., Washington, DC 20410–8000, telephone commitment application in order for the process for the establishment of an on-site (202) 708–3000. sewerage treatment plant. project to reach initial closing. • Regulation: 24 CFR 891.130(b). Contact: Willie Spearmon, Director, Office Contact: Willie Spearmon, Director, Office Project/Activity: Timber Hills Independent of Housing Assistance and Grant of Housing Assistance and Grant Living Complex of Tippah County, Ripley, Administration, Department of Housing and Administration, Department of Housing and MS, Project Number: 065–HD024/MS26– Urban Development, 451 Seventh Street, Urban Development, 451 Seventh Street, Q001–001; Bridgeway Apartments II, SW., Washington, DC 20410–8000, telephone SW., Washington, DC 20410–8000, telephone Picayune, MS, Project Number: 065–HD025/ (202) 708–3000. (202) 708–3000. MS26–Q001–002; Timber Hills Independent • • Regulation: 24 CFR 891.100(d) and 24 Living Complex of Tishomingo County, Luka, Regulation: 24 CFR 891.165. CFR 891.165. MS, Project Number: 065–HD026/MS26– Project/Activity: Las Golondrinas, San Jose, Project/Activity: Union City Senior Q011–001; Pine Hills Apartments, Gloster, CA; Project Number: 121–EE138/CA39– Housing, Union City, CA; Project Number: MS, Project Number: 065–HD027/MS26– S001–009. 121–EE136/CA39–S001–007. Q011–002. Nature of Requirement: Section 891.165 Nature of Requirement: Section 891.100(d) Nature of Requirement: Section 891.130(b) provides that the duration of the fund prohibits amendment of the amount of prohibits an identity of interest between the reservation for the capital advance is 18 approved capital advance funds prior to sponsor or owner (or borrower, as months from the date of issuance with initial closing. Section 891.165 provides that applicable). Section 891.130(b) also prohibits limited exceptions up to 24 months, as approved by HUD on a case-by-case basis. the duration of the fund reservation of the an identify of interest between the sponsor or Granted By: John C. Weicher, Assistant capital advance is 18 months from the date owner and any development team member or Secretary for Housing—Federal Housing of issuance with limited exceptions up to 24 among development team members until two Commissioner. months, as approved by HUD on a case-by- years after final closing Date Granted: July 3, 2003. case basis. Granted By: John C. Weicher, Assistant Reason Waived: The sponsor needed time Granted By: John C. Weicher, Assistant Secretary for Housing—Federal Housing Commissioner. to obtain additional funds. Additional time Secretary for Housing—Federal Housing was also needed to conduct extensive Commissioner. Date Granted: July 15, 2003. Reason Waived: The waiver was to permit reviews of the remediation of prior site Date Granted: September 24, 2003. the paralegal in the project’s law firm to serve contamination. Reason Waived: The sponsor exhausted all as a paid consultant for the projects because Contact: Willie Spearmon, Director, Office efforts to obtain additional funding. The the consultant for the projects died. In order of Housing Assistance and Grant project is economically designed and is not to delay the closing of these projects any Administration, Department of Housing and comparable in cost to similar projects further, the waiver was granted. Urban Development, 451 Seventh Street, developed in the area. Time was needed for Contact: Willie Spearmon, Director, Office SW., Washington, DC 20410–8000, telephone HUD to process the amended firm of Housing Assistance and Grant (202) 708–3000. commitment and to review the initial closing Administration, Department of Housing and • Regulation: 24 CFR 891.165. documents. Urban Development, 451 Seventh Street, Project/Activity: Stanton Accessible Contact: Willie Spearmon, Director, Office SW., Washington, DC 20410–8000, telephone Apartments, Stanton, CA; Project Number: of Housing Assistance and Grant (202) 708–3000. 143–HD008/CA43–Q981–002. Administration, Department of Housing and • Regulation: 24 CFR 891.165. Nature of Requirement: Section 891.165 Urban Development, 451 Seventh Street, Project/Activity: Reseda Horizon, provides that the duration of the fund SW., Washington, DC 20410–8000, telephone Northridge, CA; Project Number: 122– reservation for the capital advance is 18 (202) 708–3000. HD136/CA16–Q001–007. months from the date of issuance with • Regulation: 24 CFR 891.120(b) and 24 Nature of Requirement: Section 891.165 limited exceptions up to 24 months, as CFR 891.310(b)(1). provides that the duration of the fund approved by HUD on a case-by-case basis.
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Granted By: John C. Weicher, Assistant commitment application in order for the Contact: Willie Spearmon, Director, Office Secretary for Housing—Federal Housing project to reach initial closing. of Housing Assistance and Grant Commissioner. Contact: Willie Spearmon, Director, Office Administration, Department of Housing and Date Granted: July 7, 2003. of Housing Assistance and Grant Urban Development, 451 Seventh Street, Reason Waived: Additional time was Administration, Department of Housing and SW., Washington, DC 20410–8000, telephone needed for HUD to process the firm Urban Development, 451 Seventh Street, (202) 708–3000. commitment application in order for the SW., Washington, DC 20410–8000, telephone • Regulation: 24 CFR 891.165. project to reach initial closing. (202) 708–3000. Project/Activity: Hemet Ability First, Contact: Willie Spearmon, Director, Office • Regulation: 24 CFR 891.165. Hemet, CA; Project Number: 122–HD130/ of Housing Assistance and Grant Project/Activity: Holiday Heights CA16–Q001–001. Administration, Department of Housing and Volunteers Of America (VOA) Living Center, Nature of Requirement: Section 891.165 Urban Development, 451 Seventh Street, Bradenton, FL; Project Number: 067–HD079/ provides that the duration of the fund SW., Washington, DC 20410–8000, telephone FL29–Q001–004. reservation for the capital advance is 18 (202) 708–3000. Nature of Requirement: Section 891.165 months from the date of issuance with • Regulation: 24 CFR 891.165. provides that the duration of the fund limited exceptions up to 24 months, as Project/Activity: Order of Ahepa (AHEP) reservation for the capital advance is 18 approved by HUD on a case-by-case basis. 23–III Apartments, Montgomery, AL; Project months from the date of issuance with Granted By: John C. Weicher, Assistant Number: 062–EE046/AL09–S001–002. limited exceptions up to 24 months, as Secretary for Housing—Federal Housing Nature of Requirement: Section 891.165 approved by HUD on a case-by-case basis. Commissioner. provides that the duration of the fund Granted By: John C. Weicher, Assistant Date Granted: July 15, 2003. reservation for the capital advance is 18 Secretary for Housing—Federal Housing Reason Waived: The project experienced months from the date of issuance with Commissioner. significant delays due to a site change and limited exceptions up to 24 months, as Date Granted: July 9, 2003. the subsequent development of contract approved by HUD on a case-by-case basis. Reason Waived: More time was needed to documents for the new site. HUD needed Granted By: John C. Weicher, Assistant obtain additional funds and to prepare for additional time to process the firm Secretary for Housing—Federal Housing initial closing. commitment application in order for the Commissioner. Contact: Willie Spearmon, Director, Office project to reach initial closing. Date Granted: July 9, 2003. of Housing Assistance and Grant Contact: Willie Spearmon, Director, Office Reason Waived: Additional time was Administration, Department of Housing and of Housing Assistance and Grant needed to prepare for initial closing. Urban Development, 451 Seventh Street, Administration, Department of Housing and Contact: Willie Spearmon, Director, Office SW., Washington, DC 20410–8000, telephone Urban Development, 451 Seventh Street, of Housing Assistance and Grant (202) 708–3000. SW., Washington, DC 20410–8000, telephone Administration, Department of Housing and • Regulation: 24 CFR 891.165. (202) 708–3000. Urban Development, 451 Seventh Street, Project/Activity: National Church • Regulation: 24 CFR 891.165. SW., Washington, DC 20410–8000, telephone Residence (NCR) North Fairmount, Project/Activity: Hayworth Housing, Los (202) 708–3000. Cincinnati, OH; Project Number: 046–EE056/ Angeles, CA; Project Number: 122–HD118/ • Regulation: 24 CFR 891.165. OH10–S001–004. CA16–Q991–002. Project/Activity: Hillsborough County Nature of Requirement: Section 891.165 Nature of Requirement: Section 891.165 Volunteers Of America (VOA) Living Center provides that the duration of the fund provides that the duration of the fund III, Tampa, FL; Project Number: 067–HD080/ reservation for the capital advance is 18 reservation for the capital advance is 18 FL29–Q001–005. months from the date of issuance with months from the date of issuance with Nature of Requirement: Section 891.165 limited exceptions up to 24 months, as limited exceptions up to 24 months, as provides that the duration of the fund approved by HUD on a case-by-case basis. approved by HUD on a case-by-case basis. reservation for the capital advance is 18 Granted By: John C. Weicher, Assistant Granted By: John C. Weicher, Assistant months from the date of issuance with Secretary for Housing—Federal Housing Secretary for Housing—Federal Housing limited exceptions up to 24 months, as Commissioner. Commissioner. approved by HUD on a case-by-case basis. Date Granted: July 9, 2003. Date Granted: July 15, 2003. Granted By: John C. Weicher, Assistant Reason Waived: Additional time was Reason Waived: The project incurred Secretary for Housing—Federal Housing needed for HUD to prepare the firm delays while the owner resolved an issue Commissioner. commitment application in order for the after one of the sites was rejected. Date Granted: July 9, 2003. project to reach initial closing. Contact: Willie Spearmon, Director, Office Reason Waived: More time was needed to Contact: Willie Spearmon, Director, Office of Housing Assistance and Grant obtain additional funds and to prepare for of Housing Assistance and Grant Administration, Department of Housing and initial closing. Administration, Department of Housing and Urban Development, 451 Seventh Street, Contact: Willie Spearmon, Director, Office Urban Development, 451 Seventh Street, SW., Washington, DC 20410–8000, telephone of Housing Assistance and Grant SW., Washington, DC 20410–8000, telephone (202) 708–3000. Administration, Department of Housing and (202) 708–3000. • Regulation: 24 CFR 891.165. Urban Development, 451 Seventh Street, • Regulation: 24 CFR 891.165. Project/Activity: Melvin T. Walls Manor, SW., Washington, DC 20410–8000, telephone Project/Activity: South Daytona Good Ypsilanti Township, MI; Project Number: (202) 708–3000. Samaritan Housing, South Daytona Beach, 044–EE070/MI28–S000–003. • Regulation: 24 CFR 891.165. FL; Project Number: 067–EE111/FL29–S001– Nature of Requirement: Section 891.165 Project/Activity: Awakenings Village 011. provides that the duration of the fund Apartments, Whittier, CA; Project Number: Nature of Requirement: Section 891.165 reservation for the capital advance is 18 122–HD140/CA16–Q001–011. provides that the duration of the fund months from the date of issuance with Nature of Requirement: Section 891.165 reservation for the capital advance is 18 limited exceptions up to 24 months, as provides that the duration of the fund months from the date of issuance with approved by HUD on a case-by-case basis. reservation for the capital advance is 18 limited exceptions up to 24 months, as Granted By: John C. Weicher, Assistant months from the date of issuance with approved by HUD on a case-by-case basis. Secretary for Housing—Federal Housing limited exceptions up to 24 months, as Granted By: John C. Weicher, Assistant Commissioner. approved by HUD on a case-by-case basis. Secretary for Housing—Federal Housing Date Granted: July 15, 2003. Granted By: John C. Weicher, Assistant Commissioner. Reason Waived: More time was needed for Secretary for Housing—Federal Housing Date Granted: July 11, 2003. the sponsor to acquire additional funding Commissioner. Reason Waived: Additional time was and to redesign portions of the project. Date Granted: July 9, 2003. needed for HUD to process the firm Contact: Willie Spearmon, Director, Office Reason Waived: Additional time was commitment application in order for the of Housing Assistance and Grant needed for HUD to process the firm project to reach initial closing. Administration, Department of Housing and
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Urban Development, 451 Seventh Street, Project/Activity: Harvard Square, Irvin, CA; limited exceptions up to 24 months, as SW., Washington, DC 20410–8000, telephone Project Number: 143–HD011/CA43–Q001– approved by HUD on a case-by-case basis. (202) 708–3000. 001. Granted By: John C. Weicher, Assistant • Regulation: 24 CFR 891.165. Nature of Requirement: Section 891.165 Secretary for Housing—Federal Housing Project/Activity: Accessible Space, provides that the duration of the fund Commissioner. Incorporated, Birmingham, AL; Project reservation for the capital advance is 18 Date Granted: July 16, 2003. Number: 062–HD041/AL09–Q981–004. months from the date of issuance with Reason Waived: Additional time was Nature of Requirement: Section 891.165 limited exceptions up to 24 months, as needed for the owner to obtain the required provides that the duration of the fund approved by HUD on a case-by-case basis. tax exemption ruling from the Internal reservation for the capital advance is 18 Granted By: John C. Weicher, Assistant Revenue Service. months from the date of issuance with Secretary for Housing—Federal Housing Contact: Willie Spearmon, Director, Office limited exceptions up to 24 months, as Commissioner. of Housing Assistance and Grant approved by HUD on a case-by-case basis. Date Granted: July 15, 2003. Administration, Department of Housing and Granted By: John C. Weicher, Assistant Reason Waived: Additional time was Urban Development, 451 Seventh Street, Secretary for Housing—Federal Housing needed for the sponsor to prepare for initial SW., Washington, DC 20410–8000, telephone Commissioner. closing. (202) 708–3000. Date Granted: July 15, 2003. Contact: Willie Spearmon, Director, Office • Regulation: 24 CFR 891.165. Reason Waived: The sponsor experienced of Housing Assistance and Grant Project/Activity: McTaggert Court I, Stow, lengthy delays due to the need to resolve Administration, Department of Housing and OH; Project Number: 042–HD089/OH12– project cost issues. Urban Development, 451 Seventh Street, Q001–003. Contact: Willie Spearmon, Director, Office SW., Washington, DC 20410–8000, telephone Nature of Requirement: Section 891.165 of Housing Assistance and Grant (202) 708–3000. provides that the duration of the fund Administration, Department of Housing and • Regulation: 24 CFR 891.165. reservation for the capital advance is 18 Urban Development, 451 Seventh Street, Project/Activity: Legion Woods months from the date of issuance with SW., Washington, DC 20410–8000, telephone Apartments, New Haven, CT; Project limited exceptions up to 24 months, as (202) 708–3000. Number: 017–HD028/CT26–Q001–004. approved by HUD on a case-by-case basis. Granted By: John C. Weicher, Assistant • Regulation: 24 CFR 891.165. Nature of Requirement: Section 891.165 Secretary for Housing—Federal Housing Project/Activity: Washington Park Elderly, provides that the duration of the fund Commissioner. Chicago, IL; Project Number: 071–EE158/ reservation for the capital advance is 18 Date Granted: July 21, 2003. IL06–S001–004. months from the date of issuance with limited exceptions up to 24 months, as Reason Waived: Due to local opposition Nature of Requirement: Section 891.165 approved by HUD on a case-by-case basis. against several different sites identified for provides that the duration of the fund Granted By: John C. Weicher, Assistant the project, the sponsor needed additional reservation for the capital advance is 18 Secretary for Housing—Federal Housing time to identify sites that would meet local months from the date of issuance with Commissioner. zoning requirements. limited exceptions up to 24 months, as Date Granted: July 15, 2003. Contact: Willie Spearmon, Director, Office approved by HUD on a case-by-case basis. Reason Waived: More time was needed to of Housing Assistance and Grant Granted By: John C. Weicher, Assistant obtain additional funds and to select a Administration, Department of Housing and Secretary for Housing—Federal Housing general contractor. Urban Development, 451 Seventh Street, Commissioner. Contact: Willie Spearmon, Director, Office SW., Washington, DC 20410–8000, telephone Date Granted: July 15, 2003. of Housing Assistance and Grant (202) 708–3000. Reason Waived: Additional time was Administration, Department of Housing and • needed for HUD to process the firm Regulation: 24 CFR 891.165. Urban Development, 451 Seventh Street, Project/Activity: Carrie P. Meek Manor, commitment application in order for the SW., Washington, DC 20410–8000, telephone project to reach initial closing. Miami, FL; Project Number: 066–EE071/ (202) 708–3000. FL29–S991–016. Contact: Willie Spearmon, Director, Office • Regulation: 24 CFR 891.165. of Housing Assistance and Grant Nature of Requirement: Section 891.165 Project/Activity: JoMar of Zion, Oshkosh, provides that the duration of the fund Administration, Department of Housing and WI; Project Number: 075–EE096/WI39–S001– reservation for the capital advance is 18 Urban Development, 451 Seventh Street, 004. months from the date of issuance with SW., Washington, DC 20410–8000, telephone Nature of Requirement: Section 891.165 limited exceptions up to 24 months, as (202) 708–3000. provides that the duration of the fund approved by HUD on a case-by-case basis. • Regulation: 24 CFR 891.165. reservation for the capital advance is 18 Granted By: John C. Weicher, Assistant Project/Activity: Chandler Arms II, months from the date of issuance with Secretary for Housing—Federal Housing Columbus, OH; Project Number: 043–EE071/ limited exceptions up to 24 months, as Commissioner. OH16–S001–003. approved by HUD on a case-by-case basis. Date Granted: July 21, 2003. Nature of Requirement: Section 891.165 Granted By: John C. Weicher, Assistant Reason Waived: The project experienced provides that the duration of the fund Secretary for Housing—Federal Housing delays due to site control problems. reservation for the capital advance is 18 Commissioner. Additional time was needed to correct months from the date of issuance with Date Granted: July 16, 2003. deficiencies in the firm commitment limited exceptions up to 24 months, as Reason Waived: Additional time was application. approved by HUD on a case-by-case basis. needed for the owner to prepare and for HUD Contact: Willie Spearmon, Director, Office Granted By: John C. Weicher, Assistant to review the initial closing documents. of Housing Assistance and Grant Secretary for Housing—Federal Housing Contact: Willie Spearmon, Director, Office Administration, Department of Housing and Commissioner. of Housing Assistance and Grant Urban Development, 451 Seventh Street, Date Granted: July 15, 2003. Administration, Department of Housing and SW., Washington, DC 20410–8000, telephone Reason Waived: Additional time was Urban Development, 451 Seventh Street, (202) 708–3000. needed for the city to approve a zoning SW., Washington, DC 20410–8000, telephone • Regulation: 24 CFR 891.165. variance and for HUD to process and issue (202) 708–3000. Project/Activity: Providence St. Elizabeth the firm commitment. • Regulation: 24 CFR 891.165. House, Seattle, WA; Project Number: 127– Contact: Willie Spearmon, Director, Office Project/Activity: Rotary Village II, Del Rio, EE032/WA19–S011–003. of Housing Assistance and Grant TX; Project Number: 115–EE057/TX59– Nature Of Requirement: Section 891.165 Administration, Department of Housing and S001–001. provides that the duration of the fund Urban Development, 451 Seventh Street, Nature of Requirement: Section 891.165 reservation for the capital advance is 18 SW., Washington, DC 20410–8000, telephone provides that the duration of the fund months from the date of issuance with (202) 708–3000. reservation for the capital advance is 18 limited exceptions up to 24 months, as • Regulation: 24 CFR 891.165. months from the date of issuance with approved by HUD on a case-by-case basis.
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Granted By: John C. Weicher, Assistant Granted By: John C. Weicher, Assistant Date Granted: August 6, 2003. Secretary for Housing—Federal Housing Secretary for Housing—Federal Housing Reason Waived: The project was delayed Commissioner. Commissioner. due to third party opposition. Date Granted: July 21, 2003. Date Granted: July 31, 2003. Contact: Willie Spearmon, Director, Office Reason Waived: The project is part of a Reason Waived: HUD needed additional of Housing Assistance and Grant HOPE VI redevelopment of a public housing time to process the firm commitment Administration, Department of Housing and site that had been delayed due to third-party application and for the project to reach initial Urban Development, 451 Seventh Street, opposition and the need to resolve closing. SW., Washington, DC 20410–8000, telephone environmental site issues. Additional time Contact: Willie Spearmon, Director, Office (202) 708–3000. was needed to finalize the HOPE VI of Housing Assistance and Grant • Regulation: 24 CFR 891.165. redevelopment plans to permit construction Administration, Department of Housing and Project/Activity: North Capitol at of the project. Urban Development, 451 Seventh Street, Plymouth, Washington, DC; Project Number: Contact: Willie Spearmon, Director, Office SW., Washington, DC 20410–8000, telephone 000–EE053/DC39–S001–001. of Housing Assistance and Grant (202) 708–3000. Nature of Requirement: Section 891.165 Administration, Department of Housing and • Regulation: 24 CFR 891.165. provides that the duration of the fund Urban Development, 451 Seventh Street, Project/Activity: Spruce Landing, Kansas reservation for the capital advance is 18 SW., Washington, DC 20410–8000, telephone City, MO; Project Number: 084–HD036/ months from the date of issuance with (202) 708–3000. MO16–Q001–001. limited exceptions up to 24 months, as • Regulation: 24 CFR 891.165. Nature of Requirement: Section 891.165 approved by HUD on a case-by-case basis. Project/Activity: White Cone Senior provides that the duration of the fund Granted By: John C. Weicher, Assistant Apartments, White Cone, AZ; Project reservation for the capital advance is 18 Secretary for Housing—Federal Housing Number: 123–EE077/AZ20–S001–004. months from the date of issuance with Commissioner. Nature of Requirement: Section 891.165 limited exceptions up to 24 months, as Date Granted: August 12, 2003. provides that the duration of the fund approved by HUD on a case-by-case basis. Reason Waived: Additional time was reservation for the capital advance is 18 Granted By: John C. Weicher, Assistant needed for the sponsor to obtain a building months from the date of issuance with Secretary for Housing—Federal Housing permit. limited exceptions up to 24 months, as Commissioner. Contact: Willie Spearmon, Director, Office approved by HUD on a case-by-case basis. Date Granted: July 31, 2003. of Housing Assistance and Grant Granted By: John C. Weicher, Assistant Reason Waived: Delays were experienced Administration, Department of Housing and Secretary for Housing—Federal Housing by the project due to difficulty in locating Urban Development, 451 Seventh Street, Commissioner. and negotiating a suitable site and an SW., Washington, DC 20410–8000, telephone Date Granted: July 23, 2003. unexpected requirement by the city to (202) 708–3000. Reason Waived: The sponsor needed time complete a drainage study. • Regulation: 24 CFR 891.165. to obtain additional funding. The sponsor Contact: Willie Spearmon, Director, Office Project/Activity: Loretto Heritage also had problems securing an architect and of Housing Assistance and Grant Apartments, Syracuse, NY; Project Number: contractor with bids within the project costs. Administration, Department of Housing and 014–HD084/NY06–Q991–001. Contact: Willie Spearmon, Director, Office Urban Development, 451 Seventh Street, Nature of Requirement: Section 891.165 of Housing Assistance and Grant SW., Washington, DC 20410–8000, telephone provides that the duration of the fund Administration, Department of Housing and (202) 708–3000. reservation for the capital advance is 18 Urban Development, 451 Seventh Street, • Regulation: 24 CFR 891.165. months from the date of issuance with SW., Washington, DC 20410–8000, telephone Project/Activity: Ridgeview Terrace II, limited exceptions up to 24 months, as (202) 708–3000. Ashtabula Township, OH; Project Number: approved by HUD on a case-by-case basis. • Regulation: 24 CFR 891.165. 042–HD084/OH12–Q991–005. Granted By: John C. Weicher, Assistant Project/Activity: Mechanic Street Nature of Requirement: Section 891.165 Secretary for Housing—Federal Housing Apartments, Marlboro, MA; Project Number: provides that the duration of the fund Commissioner. 023–HD131/MA06–Q971–012. reservation for the capital advance is 18 Date Granted: August 13, 2003. Nature of Requirement: Section 891.165 months from the date of issuance with Reason Waived: The sponsor needed provides that the duration of the fund limited exceptions up to 24 months, as additional time to locate an alternate site and reservation for the capital advance is 18 approved by HUD on a case-by-case basis. to prepare the firm commitment documents. months from the date of issuance with Granted By: John C. Weicher, Assistant Contact: Willie Spearmon, Director, Office limited exceptions up to 24 months, as Secretary for Housing—Federal Housing of Housing Assistance and Grant approved by HUD on a case-by-case basis. Commissioner. Administration, Department of Housing and Granted By: John C. Weicher, Assistant Date Granted: August 5, 2003. Urban Development, 451 Seventh Street, Secretary for Housing—Federal Housing Reason Waived: Due to local opposition to SW., Washington, DC 20410–8000, telephone Commissioner. the project, the sponsor had difficulty (202) 708–3000. Date Granted: July 24, 2003. obtaining necessary approval from the local • Regulation: 24 CFR 891.165. Reason Waived: Additional time was authorities to proceed with the project. Project/Activity: Genesee Housing, Seattle, needed to review the initial closing Contact: Willie Spearmon, Director, Office WA; Project Number: 127–HD028/WA19– documents and for the project to reach initial of Housing Assistance and Grant Q011–001. closing. Administration, Department of Housing and Nature of Requirement: Section 891.165 Contact: Willie Spearmon, Director, Office Urban Development, 451 Seventh Street, provides that the duration of the fund of Housing Assistance and Grant SW., Washington, DC 20410–8000, telephone reservation for the capital advance is 18 Administration, Department of Housing and (202) 708–3000. months from the date of issuance with Urban Development, 451 Seventh Street, • Regulation: 24 CFR 891.165. limited exceptions up to 24 months, as SW., Washington, DC 20410–8000, telephone Project/Activity: Congress Street approved by HUD on a case-by-case basis. (202) 708–3000. Apartments, New Port Richey, FL; Project Granted By: John C. Weicher, Assistant • Regulation: 24 CFR 891.165. Number: 067–HD077/FL29–Q001–001. Secretary for Housing—Federal Housing Project/Activity: Villa Seton, Port St. Lucie, Nature of Requirement: Section 891.165 Commissioner. FL; Project Number: 067–EE107/FL29–S001– provides that the duration of the fund Date Granted: September 4, 2003. 005. reservation for the capital advance is 18 Reason Waived: Delay of the project was Nature of Requirement: Section 891.165 months from the date of issuance with due to third party opposition regarding the provides that the duration of the fund limited exceptions up to 24 months, as demolition of another project. reservation for the capital advance is 18 approved by HUD on a case-by-case basis. Contact: Willie Spearmon, Director, Office months from the date of issuance with Granted By: John C. Weicher, Assistant of Housing Assistance and Grant limited exceptions up to 24 months, as Secretary for Housing—Federal Housing Administration, Department of Housing and approved by HUD on a case-by-case basis. Commissioner. Urban Development, 451 Seventh Street,
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SW., Washington, DC 20410–8000, telephone Project/Activity: Providence Gamelin Nature of Requirement: Section 891.165 (202) 708–3000. House Association, Seattle, WA; Project provides that the duration of the fund • Regulation: 24 CFR 891.165. Number: 127–EE028/WA19–S001–002. reservation for the capital advance is 18 Project/Activity: National Church Nature of Requirement: Section 891.165 months from the date of issuance with Residence (NCR) of North Fairmount, provides that the duration of the fund limited exceptions up to 24 months, as Cincinnati, OH; Project Number: 046–EE056/ reservation for the capital advance is 18 approved by HUD on a case-by-case basis. OH10–S001–004. months from the date of issuance with Granted By: John C. Weicher, Assistant Nature of Requirement: Section 891.165 limited exceptions up to 24 months, as Secretary for Housing—Federal Housing provides that the duration of the fund approved by HUD on a case-by-case basis. Commissioner. reservation for the capital advance is 18 Granted By: John C. Weicher, Assistant Date Granted: September 30, 2003. months from the date of issuance with Secretary for Housing—Federal Housing Reason Waived: Additional time was limited exceptions up to 24 months, as Commissioner. needed for the firm commitment application approved by HUD on a case-by-case basis. Date Granted: September 23, 2003. to be submitted and for HUD to review the Granted By: John C. Weicher, Assistant Reason Waived: Additional time was partial release of security from the adjacent Secretary for Housing—Federal Housing needed to resolve a legal dispute among the Section 811 project. Commissioner. Seattle Housing Authority, the landowner, Contact: Willie Spearmon, Director, Office Date Granted: September 12, 2003. and the Seattle School District. of Housing Assistance and Grant Reason Waived: The project was delayed Contact: Willie Spearmon, Director, Office Administration, Department of Housing and due to civil engineering revisions that were of Housing Assistance and Grant Urban Development, 451 Seventh Street, necessary as a result of the city’s and EPA’s Administration, Department of Housing and SW., Washington, DC 20410–8000, telephone requirements. Urban Development, 451 Seventh Street, (202) 708–3000. Contact: Willie Spearmon, Director, Office SW., Washington, DC 20410–8000, telephone • Regulation: 24 CFR 891.165. of Housing Assistance and Grant (202) 708–3000. Project/Activity: Hall Commons, • Administration, Department of Housing and Regulation: 24 CFR 891.165. Bridgeport, CT; Project Number: 017–EE063/ Urban Development, 451 Seventh Street, Project/Activity: Flury Place, Elkridge, MD, CT26–S001–006. SW., Washington, DC 20410–8000, telephone Project Number: 052–HD034/MD06–Q981– Nature of Requirement: Section 891.165 (202) 708–3000. 003. provides that the duration of the fund Nature of Requirement: Section 891.165 reservation for the capital advance is 18 • Regulation: 24 CFR 891.165. provides that the duration of the fund months from the date of issuance with Project/Activity: Villa at Marian Park, reservation for the capital advance is 18 limited exceptions up to 24 months, as Akron, OH; Project Number: 042–EE112/ months from the date of issuance with approved by HUD on a case-by-case basis. OH12–S991–005. limited exceptions up to 24 months, as Granted By: John C. Weicher, Assistant Nature of Requirement: Section 891.165 approved by HUD on a case-by-case basis. Secretary for Housing—Federal Housing provides that the duration of the fund Granted By: John C. Weicher, Assistant Commissioner. reservation for the capital advance is 18 Secretary for Housing—Federal Housing Date Granted: September 30, 2003. months from the date of issuance with Commissioner. Reason Waived: Additional time was limited exceptions up to 24 months, as Date Granted: September 23, 2003. needed for the city to complete the clean-up approved by HUD on a case-by-case basis. Reason Waived: Additional time was of the oil contamination on the site. Granted By: John C. Weicher, Assistant needed for the project to reach initial closing. Contact: Willie Spearmon, Director, Office Secretary for Housing—Federal Housing The project incurred delays in obtaining the of Housing Assistance and Grant Commissioner. necessary building permit from Howard Administration, Department of Housing and Date Granted: September 17, 2003. County. Urban Development, 451 Seventh Street, Reason Waived: The project was delayed Contact: Willie Spearmon, Director, Office SW., Washington, DC 20410–8000, telephone because of local opposition. of Housing Assistance and Grant (202) 708–3000. Contact: Willie Spearmon, Director, Office Administration, Department of Housing and • Regulation: 24 CFR 891.205. of Housing Assistance and Grant Urban Development, 451 Seventh Street, Project/Activity: Timber Lawn Place, Administration, Department of Housing and SW., Washington, DC 20410–8000, telephone Jackson, MS; Project Number: 026–EE034/ Urban Development, 451 Seventh Street, (202) 708–3000. MS26–S011–003. SW., Washington, DC 20410–8000, telephone • Regulation: 24 CFR 891.165. Nature of Requirement: Section 891.205 (202) 708–3000. Project/Activity: Ada S. McKinley IV, requires Section 202 project owners to have • Regulation: 24 CFR 891.165. Chicago, IL; Project Number: 071–HD110/ tax-exempt status under Section 501(c)(3) or Project/Activity: West Kingsbridge Senior IL06–Q981–003. (c)(4) of the Internal Revenue Code prior to Housing, Bronx, NY; Project Number: 012– Nature of Requirement: Section 891.165 initial closing. EE212/NY36–S961–030. provides that the duration of the fund Granted By: John C. Weicher, Assistant Nature of Requirement: Section 891.165 reservation for the capital advance is 18 Secretary for Housing—Federal Housing provides that the duration of the fund months from the date of issuance with Commissioner. reservation for the capital advance is 18 limited exceptions up to 24 months, as Date Granted: September 24, 2003. months from the date of issuance with approved by HUD on a case-by-case basis. Reason Waived: The Internal Revenue limited exceptions up to 24 months, as Granted By: John C. Weicher, Assistant Services was expected to issue the required approved by HUD on a case-by-case basis. Secretary for Housing—Federal Housing tax-exemption ruling soon. Granted By: John C. Weicher, Assistant Commissioner. Contact: Willie Spearmon, Director, Office Secretary for Housing—Federal Housing Date Granted: September 29, 2003. of Housing Assistance and Grant Commissioner. Reason Waived: The sponsor needed Administration, Department of Housing and Date Granted: September 22, 2003. additional time to obtain the building Urban Development, 451 Seventh Street, Reason Waived: Additional time was permits from the city of Chicago. SW., Washington, DC 20410–8000, telephone needed so the owner could complete site Contact: Willie Spearmon, Director, Office (202) 708–3000. remediation and submit the firm of Housing Assistance and Grant • Regulation: 24 CFR 891.205. commitment application. Administration, Department of Housing and Project/Activity: Gates Gardens, Brooklyn, Contact: Willie Spearmon, Director, Office Urban Development, 451 Seventh Street, NY; Project Number: 012–EE312/NY36– of Housing Assistance and Grant SW., Washington, DC 20410–8000, telephone S011–006. Administration, Department of Housing and (202) 708–3000. Nature of Requirement: Section 891.205 Urban Development, 451 Seventh Street, • Regulation: 24 CFR 891.165. requires Section 202 project owners to have SW., Washington, DC 20410–8000, telephone Project/Activity: Park View Apartments, tax-exempt status under Section 501(c)(3) or (202) 708–3000. Fort Myers, FL; Project Number: 066–EE082/ (c)(4) of the Internal Revenue Code prior to • Regulation: 24 CFR 891.165. FL29–S011–044. initial closing.
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Granted By: John C. Weicher, Assistant 62 years. The granting of this waiver Reason Waived: The Fort Worth Secretary for Housing—Federal Housing provided accessible housing for these Multifamily Hub requested permission to Commissioner. applicants and allowed the owner flexibility waive the age and income requirements for Date Granted: September 24, 2003. to rent its vacant units and achieve full this project. The property was experiencing Reason Waived: The Internal Revenue occupancy so the project would not fail. The difficulty renting up and maintaining Service was expected to issue the required waiver is effective for one year after the date sustaining occupancy. The owner needed tax-exemption ruling within six months of of approval. flexibility to rent unoccupied units to the initial closing of the project. Contact: Beverly J. Miller, Director, Office alleviate the current financial problems at the Contact: Willie Spearmon, Director, Office of Asset Management, Department of project. This waiver allowed the property to of Housing Assistance and Grant Housing and Urban Development, 451 admit applicants who did not meet the Administration, Department of Housing and Seventh Street, SW., Room 6160, definition of very low-income elderly Urban Development, 451 Seventh Street, Washington, DC 20410–7000, telephone (202) persons. The property was allowed to rent to SW., Washington, DC 20410–8000, telephone 708–3730. low-income families who were not elderly (202) 708–3000. • Regulation: 24 CFR 891.410(c). but were between the ages of 50 and 62 years. • Regulation: 24 CFR 891.310(b)(1) and Project/Activity: Casa Retirement Center, These efforts would arrest the current (b)(2). Casa, AR; Project Number: 082–EE016. financial drain and attempt to prevent Project/Activity: Share X, East Patchogue, Nature of Requirement: Section 891.410 foreclosure of the property. The waiver is in NY; Project Number: 012–HD108/NY36– relates to admission of families to projects for effect for one year from the date of approval. Q011–005. elderly or handicapped families that received Contact: Beverly J. Miller, Director, Office Nature of Requirement: Section reservations under Section 202 of the of Asset Management, Department of 891.310(b)(1) requires that all entrances, Housing Act of 1959 and housing assistance Housing and Urban Development, 451 common areas, units to be occupied by under Section 8 of the U.S. Housing Act of Seventh Street, SW., Room 6160, resident staff, and amenities must be readily 1937. Section 891.410(c) limits occupancy to Washington, DC 20410–7000, telephone (202) accessible to and usable by persons with very low-income elderly persons. To qualify, 708–3730. disabilities. Section 891.310(b)(2) requires households must include at least one person • Regulation: 24 CFR 891.410(c). that in projects for chronically mentally ill who is at least 62 years of age at the time of Project/Activity: The Maples II, Hillsboro, individuals, a minimum of 10 percent of all initial occupancy. OR; Project Number: 126–EE030. dwelling units in an independent living Granted by: John C. Weicher, Assistant Nature of Requirement: Section 891.410 facility (or 10 percent of all bedrooms and Secretary for Housing—Federal Housing relates to admission of families to projects for bathrooms in a group home, but a least one Commissioner. elderly or handicapped families that received of each such space) must be designed to be Date Granted: July 18, 2003. reservations under Section 202 of the accessible or adaptable for persons with Reason Waived: The Fort Worth Housing Act of 1959 and housing assistance disabilities. Multifamily Hub requested permission for a under Section 8 of the U.S. Housing Act of Granted By: John C. Weicher, Assistant waiver of the age requirement and a 1937. Section 891.410(c) limits occupancy to Secretary for Housing—Federal Housing reduction of the income requirement from very low-income elderly persons. To qualify, Commissioner. very low-income to low income. Despite households must include a minimum of one Date Granted: September 24, 2003. active marketing through media such as person who is at least 62 years of age at the Reason Waived: The project consists of the newspapers, churches, flyers, and referral to time of initial occupancy. rehabilitation of four group homes for housing authorities, units remained vacant. Granted by: John C. Weicher, Assistant independent living for the chronically This waiver allowed the property to be Secretary for Housing—Federal Housing mentally ill, each serving three residents. rented to non-elderly persons between the Commissioner. One home will be fully accessible. The ages of 55 and 62 years and allowed Date Granted: August 20, 2003. sponsor indicated that, of the 300 individuals applicants to meet the low-income eligibility Reason Waived: The Northwest/Alaska they served at over 150 sites, few residents requirements. This, in turn, allowed the Multifamily Hub requested permission to required the use of accessible housing. owner additional flexibility in its attempt to waive the age requirements of the subject Contact: Willie Spearmon, Director, Office rent these vacant units and perhaps start a property. The owner/managing agent of the of Housing Assistance and Grant waiting list. In addition, these waivers did subject project had requested a waiver of the Administration, Department of Housing and not deprive any currently eligible person of elderly requirements, because the property Urban Development, 451 Seventh Street, affordable rental housing. This waiver was manager was unfamiliar with the admission SW., Washington, DC 20410–8000, telephone granted for one year from the date of requirements for the Section 202 Housing for (202) 708–3000. approval. the Elderly program, admitted seven • Regulation: 24 CFR 891.410(c). Contact: Beverly J. Miller, Director, Office ineligible handicapped residents, and signed Project/Activity: Donald Sykes Villa, of Asset Management, Department of leases with two additional ineligible Stratford, WI; Project Number: 075–EE079– Housing and Urban Development, 451 handicapped families. The owner/managing NP/WAH. Seventh Street, SW., Room 6160, agent had requested permission to continue Nature of Requirement: Section 891.410 Washington, DC 20410–7000, telephone (202) to provide housing to the nine ineligible relates to admission of families to projects for 708–3730. residents or families. The owner/managing elderly or handicapped families that received • Regulation: 24 CFR 891.410(c). agent of this property may continue to house reservations under Section 202 of the Project/Activity: John Davis Manor the nine ineligible handicapped residents. Housing Act of 1959 and housing assistance Apartments, Patterson, AR; Project Number: Upon relocation of any ineligible resident or under Section 8 of the U.S. Housing Act of 082–EE096. family, the owner must accept only eligible 1937. Section 891.410(c) limits occupancy to Nature of Requirement: Section 891.410 applicants. This waiver is effective for one very low-income elderly persons. To qualify, relates to admission of families to projects for year from date of approval. households must include a minimum of one elderly or handicapped families that received Contact: Beverly J. Miller, Director, Office person who is at least 62 years of age at the reservations under Section 202 of the of Asset Management, Department of time of initial occupancy. Housing Act of 1959 and housing assistance Housing and Urban Development, 451 Granted by: John C. Weicher, Assistant under Section 8 of the U.S. Housing Act of Seventh Street, SW., Room 6160, Secretary for Housing—Federal Housing 1937. Section 891.410(c) limits occupancy to Washington, DC 20410–7000, telephone (202) Commissioner. very low-income elderly persons. To qualify, 708–3730. Date Granted: July 16, 2003. households must include a minimum of one Reason Waived: The Milwaukee person who is at least 62 years of age at the III. Regulatory Waivers Granted By the Multifamily Program Center requested time of initial occupancy. Office of Public and Indian Housing permission to waive the age requirements Granted by: John C. Weicher, Assistant For further information about the following applicable to the subject property, enabling Secretary for Housing—Federal Housing regulatory waivers, please see the name of the owner/managing agent to rent to non- Commissioner. the contact person that immediately follows elderly applicants between the ages of 55 and Date Granted: July 21, 2003. the description of the waiver granted.
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• Regulation: 24 CFR 761.30 Reason Waived: The housing authority MA. The BHA requested a waiver to permit Project/Activity: Request submitted by the requested a waiver of the regulation in order a selection preference for homeless persons Reno Sparks Indian Colony (RSIC), located in to use RHF funds for homeownership who have a serious and persistent mental Reno, Nevada, for a one-year extension of its activities, as provided in section 9(d)(1)(J) of illness that is severe enough to interfere with Fiscal Year (FY) 2000 Indian Housing Drug the U.S. Housing Act of 1937. The use of RHF one or more activities of daily living. Elimination Program (IHDEP) Grant. funds for homeownership activities is Nature of Requirement: The regulation at Nature of Requirement: The regulations at permitted by statute and consistent with 24 CFR 982.207(b)(3) States that a housing 24 CFR 761.30 allow the area Office of Native HUD’s mission. agency may adopt a preference for admission American Programs (ONAP) to grant a six- Contact: William C. Thorson, Director, of families that include a person with month extension beyond the original grant Office of Capital Improvements, Office of disabilities, but may not adopt a preference period, if the request is submitted prior to the Public and Indian Housing, Department of for persons with a specific disability. The termination of the grant. However, only Housing and Urban Development, 451 regulation at 24 CFR 983.203(a)(3) prohibits through a waiver of the regulatory Seventh Street, SW., Room 4210, site-specific waiting lists under the project- requirement may extensions of time beyond Washington, DC 20410–5000, telephone (202) based assistance (PBA) program. the regulatory six-month period be granted. 708–1640. Granted By: Michael Liu, Assistant Granted By: Michael Liu, Assistant • Regulation: 24 CFR 941.102(a)(2). Secretary for Public and Indian Housing. Secretary for Public and Indian Housing. Project/Activity: Wilmington (Delaware) Date Granted: September 26, 2003. Date Granted: July 7, 2003. Housing Authority. Reason Waived: The BHA demonstrated Reason Waived: The RSIC experienced Nature of Requirement: A public housing that separate housing and services provided delays related to winter storms. In addition, agency (PHA) may develop new public at the Dartmouth Hotel would enable the Section 6 of Executive Order 13175, housing by using the turnkey method. target population to have the same ‘‘Executive Order on Consultation and Developers must provide the site, design, and opportunity as others to enjoy the benefits of Cooperation with Tribal Governments,’’ of program financing. The PHA pays the secure affordable housing. Without units November 6, 2000, requires HUD to consider turnkey developer upon completion of designated for the target population, they applications for regulatory waivers with a construction and acceptance. would not be able to maintain their position general view of increasing opportunities for Granted By: Michael Liu, Assistant on the BHA’s tenant-based or project-based utilizing flexible policy approaches. Secretary for Public and Indian Housing. waiting list due to not having a fixed address, Contact: Deborah Lalancette, Director, Date Granted: July 14, 2003. not understanding materials sent to them, Grants Management, Denver Program ONAP, Reason Waived: The PHA would be able to and frequent hospitalizations. The target Department of Housing and Urban achieve substantial cost savings by using an population would also not be successful in Development, 1999 Broadway, Suite 3390, existing site and providing direct funding to the housing search process, even if a voucher Denver, CO 80202–5733, telephone (303) the contractor during construction. were issued, due to the stigma associated 675–1625. Contact: William C. Thorson, Director, with mental illness, lack of landlord • Regulation: 24 CFR 761.30 Office of Capital Improvements, Office of references, and bad credit. To ensure that the Project/Activity: Request submitted by the Public and Indian Housing, Department of target population would be housed at the Calista Corporation, located in Anchorage, Housing and Urban Development, 451 Dartmouth Hotel, for which its occupancy Alaska, for an additional time extension of its Seventh Street, SW., Room 4210, was intended, the BHA must maintain a PBA FY 2000 IHDEP Grant. Washington, DC 20410–5000, telephone (202) site-specific waiting list for this project. 708–1640. Nature of Requirement: The regulations at • Contact: Gerald Benoit, Director, Housing 24 CFR 761.30 allow the area ONAP to grant Regulation: 24 CFR 941.606(n)(1)(ii)(B). Voucher Management and Operations a six-month extension beyond the original Project/Activity: Metropolitan Gardens Division, Office of Public Housing and HOPE VI Project AL09URD001I197, grant period if the request is submitted prior Voucher Programs, Office of Public and Birmingham, AL. to the termination of the grant. However, Indian Housing, Department of Housing and Nature of Requirement: The provision only through a waiver of the regulatory Urban Development, 451 Seventh Street, requires that, if the partner or owner entity requirement may extensions of time beyond SW., Room 4210, Washington, DC 20410– (or any other entity with an identity of the regulatory six-month period be granted. 5000, telephone (202) 708–0477. interest with such parties) wants to serve as • Granted By: Michael Liu, Assistant a general contractor for the project or Regulation: 24 CFR 982.505(d). Secretary for Public and Indian Housing. development, it may award itself the Project/Activity: Housing Authority of Date Granted: July 16, 2003. construction contract only if it can Washington County (HAWC), Hillsboro, OR. Reason Waived: The Program Director for demonstrate to HUD’s satisfaction that its bid The HAWC requested an exception payment the grant resigned early in 2003, is the lowest submitted in response to a standard that exceeded 120 percent of the fair complicating coordination of grant activities. public request for bids. market rent as a reasonable accommodation In addition, the Calista Elders Council, the for a housing choice voucher participant who Granted By: Michael Liu, Assistant grant subrecipient, experienced delays in was elderly and nearly blind. Secretary for Public and Indian Housing. project implementation due to a move from Nature of Requirement: 24 CFR 982.505(d) Date Granted: September 3, 2003. Anchorage to Bethel and difficulties in hiring Reason Waived: The waiver was approved allows a PHA to approve a higher payment a project coordinator. in order for Integral/Doster Metropolitan within the basic range for a family that Contact: Deborah Lalancette, Director, Gardens Construction LLC to complete Phase includes a person with disabilities as a Grants Management, Denver Program ONAP, I of the Metropolitan Gardens project. The reasonable accommodation in accordance Department of Housing and Urban construction cost provided by Integral/Doster with 24 CFR part 8. Development, 1999 Broadway, Suite 3390, is $14,263,429, which is $59,963 lower than Granted By: Michael Liu, Assistant Denver, CO 80202, telephone (303) 675– the independent estimator’s cost estimate of Secretary for Public and Indian Housing. 1625. $14,323,392, therefore satisfying HUD’s Date Granted: August 19, 2003. • Regulation: 24 CFR 905.10. condition that the construction contract be Reason Waived: Approval of the waiver Project/Activity: City of Columbia less than or equal to the independent cost was granted to allow the participant to (Missouri) Housing Authority. estimate. continue to lease the space for her Nature of Requirement: Section 905.10 Contact: Milan Ozdinec, Deputy Assistant manufactured home near her son who requires replacement housing factor (RHF) Secretary, Office of Public Housing assisted her with daily living activities. funds to be used to provide public housing Investments, Department of Housing and Contact: Gerald Benoit, Director, Housing rental replacement housing. The regulation Urban Development, 451 Seventh Street, Voucher Management and Operations limits RHF funds to rental replacement SW., Washington, DC 20410–5000, telephone Division, Office of Public Housing and housing and does not include (202) 401–8812. Voucher Programs, Office of Public and homeownership housing. • Regulation: 24 CFR 982.207(b)(3) and Indian Housing, Department of Housing and Granted By: Michael Liu, Assistant 983.203(a)(3). Urban Development, 451 Seventh Street, Secretary for Public and Indian Housing. Project/Activity: Dartmouth Hotel project, SW., Room 4210, Washington, DC 20410– Date Granted: August 12, 2003. Boston Housing Authority (BHA), Boston, 5000, telephone (202) 708–0477.
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• Regulation: 24 CFR 982.505(d). reasonable accommodation in accordance Indian Housing, Department of Housing and Project/Activity: Arlington County with 24 CFR part 8. Urban Development, 451 Seventh Street, Department of Human Services (ACDHS), Granted By: Michael Liu, Assistant SW., Room 4210, Washington, DC 20410– Arlington, VA. The ACDHS requested an Secretary for Public and Indian Housing. 5000, telephone (202) 708–0477. exception payment standard that exceeded Date Granted: July 18, 2003. • Regulation: Section II, subpart E, of the 120 percent of the fair market rent as a Reason Waived: Approval of the waiver January 16, 2001, Federal Register notice, reasonable accommodation for a housing was granted to allow a housing choice Revisions to PHA Project-Based Assistance choice voucher participant who suffered voucher participant to lease her current unit (PBA) Program; Initial Guidance. from multiple medical conditions. with the necessary services. The building has Project/Activity: Miami-Dade Housing Nature of Requirement: 24 CFR 982.505(d) an elevator, which is essential because she Agency (MDHA), Miami, FL. The MDHA allows a PHA to approve a higher payment cannot negotiate stairs. Also, she is familiar requested exceptions to the initial guidance within the basic range for a family that with the area in which she lives. to permit it to attach PBA to the following includes a person with disabilities as a Contact: Gerald Benoit, Director, Housing projects in census tracts with high poverty reasonable accommodation in accordance Voucher Management and Operations rates: Tequesta Knoll Apartments, Florida with 24 CFR part 8. Division, Office of Public Housing and City Apartments, Villages of Naranja, Park Granted By: Michael Liu, Assistant Voucher Programs, Office of Public and City Apartments, and Miami River Secretary for Public and Indian Housing. Indian Housing, Department of Housing and Apartments. Date Granted: August 18, 2003. Urban Development, 451 Seventh Street, Nature of Requirement: Section II, subpart Reason Waived: Approval of the waiver SW., Room 4210, Washington, DC 20410– E, of the initial guidance requires that in was granted to allow the participant to locate 5000, telephone (202) 708–0477. order to meet the Department’s goal of suitable housing to enable her to maintain • Regulation: 24 CFR 982.505(D). deconcentration and expanding housing and her health and live independently. Project/Activity: Housing Authority of the economic opportunities, the projects must be Contact: Gerald Benoit, Director, Housing City of Los Angeles (HACLA), Los Angeles, in census tracts with poverty rates of less Voucher Management and Operations CA. The HACLA requested an exception than 20 percent. Division, Office of Public Housing and payment standard that exceeded 120 percent Granted By: Michael Liu, Assistant Voucher Programs, Office of Public and of the fair market rent as a reasonable Secretary for Public and Indian Housing. Indian Housing, Department of Housing and accommodation for two families participating Date Granted: July 7, 2003. Urban Development, 451 Seventh Street, in the housing choice voucher program. Reason Waived: Approval of the exception SW., Room 4210, Washington, DC 20410– Nature of Requirement: 24 CFR 982.505(d) for deconcentration was granted for Tequesta 5000, telephone (202) 708–0477. allows a PHA to approve a higher payment Knoll Apartments, Florida City Apartments, • Regulation: 24 CFR 982.505(d). within the basic range for a family that and Miami River Apartments, since the Project/Activity: King County Housing includes a person with disabilities as a projects were located in a HUD-designated Authority (KCHA), Seattle, WA. The KCHA reasonable accommodation in accordance Empowerment Zone, the purpose of which is requested an exception payment standard with 24 CFR part 8. to open new businesses and create jobs, that exceeded 120 percent of the fair market Granted By: Michael Liu, Assistant housing, and new educational and healthcare rent as a reasonable accommodation for a Secretary for Public and Indian Housing. opportunities for thousands of Americans. housing choice voucher participant who has Date Granted: July 18, 2003. Approval was granted for Villages of developmental disabilities. Reason Waived: Approval of the waiver Naranja, since 439 private market-rate single- Nature of Requirement: 24 CFR 982.505(d) was granted to allow the families to lease family homes would be developed in the allows a PHA to approve a higher payment their current units because it would allow census tract. In addition, boat building and within the basic range for a family that them to maintain their health and live general construction companies have either opened new businesses or relocated to the includes a person with disabilities as a independently. area, thus expanding economic reasonable accommodation in accordance Contact: Gerald Benoit, Director, Housing opportunities. with 24 CFR part 8. Voucher Management and Operations Approval was granted for Park City Granted By: Michael Liu, Assistant Division, Office of Public Housing and Apartments, since Safire Aircraft Company Secretary for Public and Indian Housing. Voucher Programs, Office of Public and would be opening its headquarters at the Date Granted: July 21, 2003. Indian Housing, Department of Housing and Opa-locka Airport, which is within five miles Reason Waived: Approval of the waiver Urban Development, 451 Seventh Street, of the project, thereby creating over 1,000 was granted to allow a housing choice SW., Room 4210, Washington, DC 20410– jobs over the next three years. voucher participant to continue to lease the 5000, telephone (202) 708–0477. Contact: Gerald Benoit, Director, Housing manufactured home lot space where he then • Regulation: 24 CFR 982.505(d). Voucher Management and Operations lived and received supportive services and Project/Activity: Boston Housing Authority Division, Office of Public Housing and training in life skills. Any disruption in his (BHA), Boston, MA. The BHA requested an Voucher Programs, Office of Public and daily routine would have caused a hardship exception payment standard that exceeded Indian Housing, Department of Housing and on the participant. 120 percent of the fair market rent as a Urban Development, 451 Seventh Street, Contact: Gerald Benoit, Director, Housing reasonable accommodation for a housing SW., Room 4210, Washington, DC 20410– Voucher Management and Operations choice voucher participant who was 5000, telephone (202) 708–0477. Division, Office of Public Housing and quadriplegic and suffered from increased • Voucher Programs, Office of Public and Regulation: Section II, subpart E, of the autonomic dysreflexia. January 16, 2001, Federal Register notice, Indian Housing, Department of Housing and Nature of Requirement: 24 CFR 982.505(d) Urban Development, 451 Seventh Street, Revisions to PHA Project-Based Assistance allows a PHA to approve a higher payment (PBA) Program; Initial Guidance. SW., Room 4210, Washington, DC 20410– within the basic range for a family that Project/Activity: Indianapolis Housing 5000, telephone (202) 708–0477. includes a person with disabilities as a Authority (IHA), Indianapolis, IN. The IHA • Regulation: 24 CFR 982.505(d). reasonable accommodation in accordance requested an exception to the initial guidance Project/Activity: Housing Authority of the with 24 CFR part 8. to permit it to attach PBA to Mozel Saunders, City of Los Angeles (HACLA), Los Angeles, Granted By: Michael Liu, Assistant a project located in a census tract with a CA. The HACLA requested an exception Secretary for Public and Indian Housing. poverty rate of 34.1 percent. payment standard that exceeded 120 percent Date Granted: July 17, 2003. Nature of Requirement: Section II, subpart of the fair market rent as a reasonable Reason Waived: Approval of the waiver E, of the initial guidance requires that in accommodation for a housing choice voucher was granted to allow the participant to locate order to meet the Department’s goal of participant that had congenital glaucoma and suitable housing to enable him to live deconcentration and expanding housing and severe trauma to her left eye. independently. economic opportunities, the projects must be Nature of Requirement: 24 CFR 982.505(d) Contact: Gerald Benoit, Director, Housing in census tracts with poverty rates of less allows a PHA to approve a higher payment Voucher Management and Operations than 20 percent. within the basic range for a family that Division, Office of Public Housing and Granted By: Michael Liu, Assistant includes a person with disabilities as a Voucher Programs, Office of Public and Secretary for Public and Indian Housing.
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Date Granted: July 15, 2003. Nature of Requirement: Section II subpart Contact: Gerald Benoit, Director, Housing Reason Waived: Approval of the exception E of the Initial Guidance requires that all new Voucher Management and Operations for deconcentration was granted, since (1) 34 PBA agreements or housing assistance Division, Office of Public Housing and units would be demolished and another 45 payments (HAP) contracts be for units in Voucher Programs, Office of Public and units were proposed for demolition where census tracts with poverty rates of less than Indian Housing, Department of Housing and none had been proposed before, (2) only 25 20 percent, unless HUD specifically approves Urban Development, 451 Seventh Street, percent of the units would have PBA an exception. SW., Room 4210, Washington, DC 20410– attached, and (3) the remaining 75 percent of Granted By: Michael Liu, Assistant 5000, telephone (202) 708–0477. the units would be rented at market rate Secretary for Public and Indian Housing. • Regulation: Section II, subpart E, of the rents. The net reduction of low-income Date Granted: September 12, 2003. January 16, 2001, Federal Register notice, housing units in the census tract combined Reason Waived: Club Nova Apartments is Revisions to PHA Project-Based Assistance with an increase in the percentage of market located in census tract 107.3 with a poverty (PBA) Program; Initial Guidance. rate units in the project is consistent with the rate of 23.3 percent. Census tract 107.3 is Project/Activity: Housing Authority of the goal of deconcentrating poverty. adjacent to the University of North Carolina City of Atlanta (HACA), Atlanta, GA. The Contact: Gerald Benoit, Director, Housing at Chapel Hill and, according to Club Nova HACA requested exceptions to the initial Voucher Management and Operations Apartments LLC, had a disproportionately guidance to permit it to attach PBA to the Division, Office of Public Housing and high population of university students, both following projects in census tracts with high Voucher Programs, Office of Public and undergraduate and graduate. The low income poverty: Atlanta Station, Columbia Highlands Indian Housing, Department of Housing and of these residents during their period of Senior Residence, Columbia at Sylvan Hills, Urban Development, 451 Seventh Street, higher education distorted the incidence of Northside Village Apartments, Renaissance at SW., Room 4210, Washington, DC 20410– poverty that showed up in this census tract. Kings, and Terrace at Cornerstone. 5000, telephone (202) 708–0477. Club Nova Apartments LLC believed that a Nature of Requirement: Section II, subpart • Regulation: Section II, subpart E, of the significant amount of these students were E, of the initial guidance requires that in January 16, 2001, Federal Register notice, included in the number reporting income order to meet the Department’s goal of Revisions to PHA Project-Based Assistance below the poverty level and, since students deconcentration and expanding housing and (PBA) Program; Initial Guidance. were transient in their geography and their economic opportunities, the projects must be Project/Activity: Massachusetts Department economic status, should not be included in in census tracts with poverty rates of less of Housing and Community Development the poverty rate calculation. Excluding 1,154 than 20 percent. (MDHCD), Boston, MA. The MDHCD students from the 1,184 individuals reporting Granted By: Michael Liu, Assistant requested an exception to the initial guidance income below the poverty level brought Secretary for Public and Indian Housing. to permit it to attach PBA to Casa Maribel, down the poverty rate to less than 1 percent. Date Granted: September 25, 2003. a project located in a census tract in the City Since the adjusted poverty rate in census Reason Waived: Approval of the exception of Chelsea. tract 107.3 would be below 20 percent, an to deconcentration was granted for Atlanta Nature of Requirement: Section II, subpart exception was granted. Station, since it will be located in the Village E, of the initial guidance requires that in Contact: Gerald Benoit, Director, Housing section of the Atlantic Station Brownfield order to meet the Department’s goal of Voucher Management and Operations redevelopment site. The entire project is a deconcentration and expanding housing and Division, Office of Public Housing and 140-acre environmental development of the economic opportunities, the projects must be Voucher Programs, Office of Public and former Atlantic Steel Mill in midtown in census tracts with poverty rates of less Indian Housing, Department of Housing and Atlanta. Upon completion, the new than 20 percent. Urban Development, 451 Seventh Street, community will include 12 million square Granted By: Michael Liu, Assistant SW., Room 4210, Washington, DC 20410– feet of retail, office, residential, and hotel Secretary for Public and Indian Housing. 5000, telephone (202) 708–0477. space, as well as 11 acres of public parks. It Date Granted: July 15, 2003. • Regulation: Section II, subpart E, of the is anticipated that there will be between Reason Waived: Approval of the exception January 16, 2001, Federal Register notice, 3,000 and 5,000 new residential units for for deconcentration was necessary, since the Revisions to PHA Project-Based Assistance both rental and homeownership. 1990 census poverty rate was 25 percent. In (PBA) Program; Initial Guidance. Approval was granted for Columbia addition to the fact that the poverty rate had Project/Activity: Chicago Housing Highlands Senior Residence, since this declined almost four percentage points since Authority (CHA), Chicago, IL. The CHA project is an integral part of the larger West the last census, housing prices had increased requested an exception to the initial guidance Highlands at Heman E. Perry Boulevard 57 percent in the preceding two years, and to permit it to attach PBA to Evergreen community revitalization, an HACA HOPE VI rental costs had increased as well. Economic Towers II Senior Housing Development. project. The purpose of the HOPE VI program development and job creation was Nature of Requirement: Section II, subpart is to transform public housing which demonstrated in the relocation or expansion E, of the initial guidance requires that in includes changing the physical shape of of three companies. order to meet the Department’s goal of public housing; establishing positive Contact: Gerald Benoit, Director, Housing deconcentration and expanding housing and incentives for resident self-sufficiency and Voucher Management and Operations economic opportunities, the projects must be comprehensive services that empower Division, Office of Public Housing and in census tracts with poverty rates of less residents; lessening concentrations of poverty Voucher Programs, Office of Public and than 20 percent. by placing public housing in non-poverty Indian Housing, Department of Housing and Granted By: Michael Liu, Assistant neighborhoods and promoting mixed-income Urban Development, 451 Seventh Street, Secretary for Public and Indian Housing. communities; and forging partnerships with SW., Room 4210, Washington, DC 20410– Date Granted: September 22, 2003. other agencies, local governments, nonprofit 5000, telephone (202) 708–0477. Reason Waived: Approval of the exception organizations, and private businesses to • Regulation: Section II, subpart E, of the for deconcentration was granted, since leverage support and resources. Toward that January 16, 2001, Federal Register notice, census data updated in 2003 indicated that end, 1,072 public housing units have been Revisions to PHA Project-Based Assistance the poverty level of the census tract had demolished and will be replaced with 556 (PBA) Program; Initial Guidance. decreased due to private market activity and public housing units, 212 low-income Project/Activity: Orange County commercial development. In addition, the housing tax credit units, 632 market rate Department of Housing and Community 134 units in the Cabrini Green building that units, 40 affordable homeownership units, Development (OCDHCD), Carrboro, NC. The was in the same census tract would be and 210 market rate homeownership units. OCDHCD was seeking an exception to the demolished in 2005, further reducing the Approval was granted for Columbia at initial guidance to attach PBA to Club Nova number of low-income families in the census Sylvan Hills, since the project is located in Apartments for extremely low-income tract. There would not be one-for-one one of the fastest growing areas in the city of persons with disabilities. According to the replacement of the demolished public Atlanta with sales prices of single-family documentation provided by Club Nova housing units, and any new public housing homes more than doubling in the past five Apartments LLC, it does not intend to target units would be placed within mixed income years. The project will be the first phase of a specific disability. developments. a transit-orientated development at the
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Lakewood-Ft. McPherson Metropolitan Approval was granted for Renaissance at The project will feature apartments above Atlanta Rapid Transportation Authority Kings Ridge, since six hundred substandard retail that should provide economic (MARTA site). Pedestrian access will be apartments that housed low-income families opportunities for the resident families. There provided from the development to the were demolished several years ago in the are future development plans for the MARTA station. Further development Kings Ridge Development area. Information community that will allow for both retail and around the project will consist of an office was not available regarding the exact income and retail building adjacent to the site. mix of the families that occupied these housing development. Approval was granted for Northside Village demolished units. However, they will be Contact: Gerald Benoit, Director, Housing Apartments, since the development is part of replaced with approximately 300 to 400 Voucher Management and Operations Phase I of the redevelopment effort in this rental and homeownership units, of which Division, Office of Public Housing and area of Atlanta. Phase I will include Renaissance at Kings Ridge is a part. The Voucher Programs, Office of Public and approximately 4,000 square feet of retail only low-income component of the 300 to Indian Housing, Department of Housing and space on Northside Drive thereby providing 400 replacement housing units will be the 48 Urban Development, 451 Seventh Street, new economic opportunities. Future PBA units. SW., Room 4210, Washington, DC 20410– development plans within a half-mile of Approval was granted for Terrace at 5000, telephone (202) 708–0477. Northside Village include the Georgia Cornerstone, since the development will be Aquarium and Centennial Olympic Park, a located in the West End neighborhood, [FR Doc. 04–5316 Filed 3–10–04; 8:45 am] 500-unit condominium housing which is located two miles southwest of BILLING CODE 4210–32–P development. Atlanta’s downtown central business district.
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Part III
Federal Election Commission 11 CFR Parts 100, 102, 104, 106, and 114 Political Committee Status; Proposed Rule
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FEDERAL ELECTION COMMISSION Election Commission, 999 E Street, which is the nomination or election of NW., Washington, DC 20463. The a candidate,’’ and does not ‘‘reach 11 CFR Parts 100, 102, 104, 106, and Commission will post public comments groups engaged purely in issue 114 on its Web site. The hearing will be held discussion.’’ Buckley v. Valeo, 424 U.S. in the Commission’s ninth floor meeting 1, 79 (1976) (emphasis added). The [Notice 2004–6] room, 999 E Street, NW., Washington, Supreme Court has reaffirmed the Political Committee Status DC. applicability of the ‘‘major purpose’’ test in subsequent opinions. See FEC v. FOR FURTHER INFORMATION CONTACT: Ms. AGENCY: Federal Election Commission. Mai T. Dinh, Acting Assistant General Massachusetts Citizens for Life, Inc., 479 ACTION: Notice of proposed rulemaking. Counsel, Mr. J. Duane Pugh Jr., Senior U.S. 238 (1986)(‘‘MCFL’’). Therefore, the definition of ‘‘political committee’’ Attorney, or Mr. Daniel E. Pollner, SUMMARY: The Federal Election arguably should have two elements: Attorney, 999 E Street, NW., Commission is seeking comment on First, the $1,000 contribution or Washington, DC 20463, (202) 694–1650 whether to amend the definition of expenditure threshold;1 and second, the or (800) 424–9530. ‘‘political committee’’ applicable to major purpose test for organizations not nonconnected committees. The SUPPLEMENTARY INFORMATION: controlled by Federal candidates. Commission is also considering I. Introduction The FECA generally defines amending its current regulations to ‘‘expenditures’’ as ‘‘(i) any purchase, address when disbursements for certain The Bipartisan Campaign Reform Act payment, distribution, loan advance, election activity should be treated as of 2002 (‘‘BCRA’’), which amended the deposit, or gift of money or anything of ‘‘expenditures.’’ Related amendments to Federal Election Campaign Act (‘‘FECA’’ value, made by any person for the the allocation regulations for or ‘‘the Act’’), was signed into law on purpose of influencing any election for nonconnected committees and separate March 27, 2002. The Supreme Court Federal office; and (ii) a written segregated funds are also under upheld most of BCRA in McConnell v. contract, promise, or agreement to make consideration to determine whether FEC, 540 U.S. —, 124 S. Ct. 619 (2003). an expenditure.’’ 2 U.S.C. 431(9)(A). McConnell recognized that regulation those regulations need further The definition also includes a lengthy of certain activities that affect Federal refinement. While the Commission list of exceptions. 2 U.S.C. 431(9)(B). elections is a valid measure to prevent requests comments on proposed Commission regulations at 11 CFR part circumvention of FECA’s contribution changes to its rules, it has made no final 100, subparts D and E implement this limitations and prohibitions. decisions on any of the proposed statutory definition. Since the Consequently, the Commission is revisions in this notice. Further enactment of the FECA, there have been undertaking this rulemaking to revisit information is provided in the debates about whether certain activities, the issue of whether the current supplementary information that follows. not specifically mentioned in the definition of ‘‘political committee’’ statutory or regulatory definitions, were DATES: The Commission will hold a adequately encompasses all hearing on these proposed rules on expenditures. BCRA did not amend the organizations that should be considered definition of expenditure, but instead April 14 and 15, 2004, at 10 a.m. political committees subject to the Commenters wishing to testify at the categorized certain election-related limitations, prohibitions and reporting activities into new statutory definitions. hearing must submit their request to requirements of FECA. testify along with their written or McConnell shed light on what the FECA, and the Commission’s Supreme Court considered to be electronic comments by April 5, 2004. regulations, with certain exceptions, Commenters who do not wish to testify activities that could affect Federal define a political committee as ‘‘any elections. See McConnell, 124 S. Ct. at must submit their written or electronic committee, club, association, or other comments by April 9, 2004. 673–675 and 696–697 (upholding group of persons which receives BCRA’s provisions concerning Federal ADDRESSES: All comments should be contributions aggregating in excess of election activity and electioneering addressed to Ms. Mai T. Dinh, Acting $1,000 in a calendar year or which communications). Assistant General Counsel, and must be makes expenditures aggregating in This notice of proposed rulemaking submitted in either electronic or written excess of $1,000 during a calendar (‘‘NPRM’’) explores whether and how form. Commenters are strongly year.’’ 2 U.S.C. 431(4)(A); 11 CFR the Commission should amend its encouraged to submit comments 100.5(a). FECA subjects political regulations defining whether an entity is electronically to ensure timely receipt committees to certain registration and a nonconnected political committee 2 and consideration. Electronic mail reporting requirements, as well as and what constitutes an ‘‘expenditure’’ comments should be sent to limitations and prohibitions on the under 11 CFR 100.5(a) or 11 CFR part [email protected] and contributions they receive and make, 100, subparts D and E. With respect to must include the full name, electronic that do not apply to organizations that the second element of the definition of mail address and postal service address are not political committees. See, e.g., 2 ‘‘political committee,’’ the of the commenter. Electronic mail U.S.C. 432, 433, 441a, 441b; 11 CFR part Commission’s regulations do not comments that do not contain the full 102. expressly incorporate the ‘‘major name, electronic mail address and While the statutory and regulatory purpose’’ test into 11 CFR 100.5(a). postal service address of the commenter definitions of ‘‘political committee’’ set However, the Commission does apply will not be considered. If the electronic forth above depend solely on the dollar the ‘‘major purpose’’ test when assessing mail comments include an attachment, amount of annual contributions the attachment must be in the Adobe received and expenditures made, the 1 This threshold, however, does not apply to Acrobat (.pdf) or Microsoft Word (.doc) Supreme Court, in Buckley v. Valeo, separate segregated funds and state or local party format. Faxed comments should be sent explained that to fulfill the purposes of committees. See 2 U.S.C. 431(4)(B) and (C) and 11 to (202) 219–3923, with printed copy FECA, the definition of political CFR 100.5(b) and (c). 2 The Commission is not proposing to change the follow-up to ensure legibility. Written committee ‘‘need only encompass definition of ‘‘political committee’’ applicable to comments and printed copies of faxed organizations that are under the control party committees, Federal candidates’ authorized comments should be sent to the Federal of a candidate or the major purpose of committees or separate segregated funds.
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whether an organization is a political A. McConnell v. FEC, 540 U.S. —, 124 Federal election activities as committee. See, e.g., Advisory Opinions S. Ct. 619 (2003). ‘‘electioneering,’’ and found BCRA’s (‘‘AOs’’) 1994–25 and 1995–11. In this The Supreme Court clarified in definition of Federal election activities NPRM, the Commission is seeking McConnell that Buckley’s ‘‘express to be ‘‘narrowly focused’’ on ‘‘those comment on whether to amend its advocacy’’ test is not a constitutional contributions to state and local parties regulations to incorporate the major barrier in determining whether an that can be used to benefit federal purpose test into the regulatory expenditure is ‘‘for the purpose of candidates directly.’’ McConnell, 124 definition of ‘‘political committee’’ in 11 influencing any Federal election.’’ S.Ct. at 671 and 674. Considering the first two types of CFR 100.5(a). Furthermore, the McConnell, 124 S.Ct. at 688–89. The Federal election activities, which Commission seeks comment on whether Supreme Court explained: ‘‘In narrowly reading the FECA provisions in Buckley include certain voter registration, voter the effective date for any final rules that identification, GOTV and generic the Commission may adopt should be to avoid problems of vagueness and overbreadth, we nowhere suggested that campaign activities, the Supreme Court delayed until after the next general determined that all of these activities election and whether there is a legal a statute that was neither vague nor overbroad would be required to toe the ‘‘confer substantial benefits on federal basis for delaying the effective date. The candidates.’’ McConnell, 124 S.Ct. at Commission also seeks comment on same express advocacy line.’’ McConnell, 124 S.Ct. at 688. 675. The Supreme Court also stated that whether changing the definition of basic With this understanding of express ‘‘federal candidates reap substantial terms such as ‘‘political committee,’’ advocacy, the Supreme Court found rewards from any efforts that increase ‘‘expenditure,’’ and ‘‘contribution,’’ in constitutional Congress’ regulation of the number of like-minded registered the middle of an election year would two types of activities addressed in voters who actually go to the polls.’’ Id., cause undue disruption to the regulated BCRA: ‘‘Federal election activity,’’ as 124 S.Ct. at 674. McConnell described community.3 defined in 2 U.S.C. 431(20), and the factual record as ‘‘show[ing] that many of the targeted tax-exempt II. Expenditures ‘‘electioneering communication,’’ as defined in 2 U.S.C. 434(f)(3)(A)(i). organizations engage in sophisticated and effective electioneering activities for In Buckley, 424 U.S. at 62–63, the McConnell, 124 S.Ct. at 670–77 and the purpose of influencing elections, Supreme Court first examined FECA’s 685–99. In upholding BCRA’s amendments to FECA, the Supreme including waging broadcast campaigns definitions of ‘‘expenditure’’ and promoting or attacking particular ‘‘contribution’’ and their operative Court discussed the effects that Federal election activities and electioneering candidates and conducting large scale phrase, which is ‘‘for the purpose of voter registration and GOTV.’’ Id., 124 influencing any election for Federal communications have on Federal elections. S.Ct. at 678 n.68. Like the first two office.’’ See 2 U.S.C. 431(8) and (9). The types, public communications that Supreme Court found that the ambiguity 1. Federal Election Activities promote, support, attack, or oppose a of this phrase posed constitutional As the Supreme Court observed in clearly identified Federal candidate, problems as applied to expenditures McConnell, ‘‘[t]he core of [section ‘‘also undoubtedly have a dramatic made by individuals other than 441i(b)] is a straightforward effect on Federal elections. Such ads candidates and organizations other than contribution regulation: It prevents were a prime motivating force behind political committees. Buckley, 424 U.S. donors from contributing nonfederal BCRA’s passage * * *. [A]ny public at 77. To avoid the vagueness and funds to state and local party communication that promotes or attacks potential overbreadth of the statutory committees to help finance ‘‘Federal a clearly identified federal candidate definition, Buckley adopted a narrowing election activity.’’’ 124 S.Ct. at 671.5 directly affects the election in which he construction so that FECA’s definition The Supreme Court noted that this is participating.’’ Id., 124 S.Ct. at 675. of ‘‘expenditure’’ reached ‘‘only funds regulation arises out of Congressional Because the fourth type of Federal used for communications that expressly recognition of ‘‘the close ties between election activities applies on its face advocate the election or defeat of a federal candidates and state party only to certain political party committees, it is not considered further clearly identified candidate.’’ Buckley, committees.’’ Id., at 670. ‘‘Federal in this proposal. 2 U.S.C. 431(20)(A)(iv). 424 U.S. at 79–80.4 election activity’’ encompasses four distinct categories of activities: (1) Voter 2. Electioneering Communications registration activity during the 120 days 3 By way of historical background, on March 7, preceding a regularly scheduled Federal An ‘‘electioneering communication’’ 2001, the Commission published an Advance is any broadcast, cable, or satellite Notice of Proposed Rulemaking (‘‘ANPR’’) seeking election; (2) voter identification, get-out- comment on the definitions of ‘‘political the-vote (‘‘GOTV’’), and generic communication that refers to a clearly committee,’’ ‘‘contribution’’ and ‘‘expenditure.’’ See campaign activity that is conducted in identified Federal candidate, is publicly ‘‘Definition of Political Committee; Advance Notice distributed for a fee within 60 days of Proposed Rulemaking,’’ 66 FR 13681 (Mar. 7, connection with an election in which a candidate for Federal office appears on before a general election or 30 days 2001). After receiving comments on the ANPR, the before a primary election or convention, Commission voted on September 27, 2001, to hold the ballot; (3) a public communication and is targeted to the relevant electorate. that rulemaking in abeyance pending changes in that refers to a clearly identified Federal See 2 U.S.C. 434(f)(3)(A)(i); 11 CFR legislation, future judicial decisions, or other candidate and that promotes, supports, action. The ANPR and related comments are 100.29. For communications that refer attacks, or opposes a candidate for that available on the FEC’s Web site at: http:// to congressional candidates, targeting office; and (4) the services provided by www.fec.gov/register.htm under ‘‘Definition of means the communication can be Political Committee.’’ This NPRM is a separate certain political party committee received by 50,000 persons in the proceeding. employees. See 2 U.S.C. 431(20) through 4 relevant State or congressional district. A communication refers to a clearly identified (24); 11 CFR 100.24 through 100.28. candidate if it includes ‘‘the candidate’s name, 2 U.S.C. 434(f)(3)(C); 11 CFR McConnell referred to all four types of nickname, photograph, or drawing’’ or if ‘‘the 100.29(b)(5). For communications that identity of the candidate is otherwise aparent through unambiguous reference [or] through 5 The Supreme Court acknowledged that the refer to presidential candidates in the unambiguous reference to his or her status a Levin Amendment ‘‘carves out an exception to this nomination context, ‘‘publicly candidate.’’ 11 CFR 100.17. general rule.’’ McConnell, 124 S.Ct. at 671. distributed’’ means the communication
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can be received by 50,000 persons in the ‘‘designed to influence federal ‘‘expenditures’’ if they fail to meet both relevant State prior to its presidential elections’’ or, in fact, ‘‘influencing the definition of ‘‘independent primary election or anywhere in the elections.’’ Id., at 691 (quoting expenditure’’ in 2 U.S.C. 431(17) and United States prior to the presidential McConnell v. FEC, 251 F.Supp.2d 176, the definition of ‘‘coordinated nominating convention. 11 CFR at 237 (D.D.C. 2003)). The Supreme communication’’ under 11 CFR 109.21? 100.29(b)(3)(ii). BCRA establishes Court also concluded that ‘‘the vast Is the function of the definition of disclosure requirements for persons majority’’ of advertisements that qualify ‘‘independent expenditure’’ in 2 U.S.C. who make electioneering as electioneering communications had 431(17)(A) limited to the 24-hour and communications. 2 U.S.C. 434(f); 11 an ‘‘electioneering purpose,’’ which the 48-hour reporting requirements in 2 CFR 104.20. McConnell upheld Court equated with advertisements that U.S.C. 434(g)? regulation of electioneering are ‘‘intended to influence the voters’ B. Proposed Regulations communications against a facial decisions and [that] have that effect.’’ challenge, explaining that the definition McConnell, 124 S.Ct. at 696. The Court In this NPRM, the Commission of ‘‘electioneering communication’’ considered such advertisements to be considers whether, in light of serves ‘‘to replace the narrowing ‘‘the functional equivalent of express McConnell, it should revise current construction of FECA’s disclosure advocacy.’’ Id. regulations to reflect that certain provisions adopted by this Court in The Commission seeks comment on communications and certain voter drive Buckley,’’ which, for nonpolitical whether the Supreme Court’s treatment activities have the purpose of committee groups, was the express of Federal election activity or influencing Federal elections. This advocacy construction. McConnell, 124 electioneering communications in proposal includes several alternatives. S.Ct. at 686 and 695. In so holding, the McConnell requires or permits the The Commission has not made any final Court observed that ‘‘the definition of Commission to change its regulations decisions on any of the proposed rules ‘‘electioneering communication’’ raises defining ‘‘expenditure’’ and or alternatives, which are described none of the vagueness concerns that ‘‘contribution’’ in 11 CFR part 100, below, and seeks comment on all of drove our analysis in Buckley.’’ Id., at subparts B, C, D and E to include those them. 689. concepts. In the alternative, the 1. Proposed 11 CFR 100.5—Definition of BCRA also amended the definition of Commission seeks comment on whether ‘‘political committee’’ ‘‘contribution or expenditure’’ in 2 McConnell recognizes additional U.S.C. 441b to include any payment for activities that may be constitutionally Current 11 CFR 100.5(a) specifies that an electioneering communication, regulated by Congress, but in the any committee, club, association, or thereby expressly prohibiting absence of new legislation doing so, the other group of persons that receives corporations and labor organizations Commission is prohibited from contributions aggregating in excess of from using their general treasury funds expanding the regulatory definitions of $1,000 or which makes expenditures to pay for electioneering ‘‘expenditure’’ and ‘‘contribution.’’ aggregating in excess of $1,000 during a communications. McConnell described The Commission further seeks calendar year is a political committee. electioneering communications subject comment on whether, even if it may so In addition to considering amending to 2 U.S.C. 441b as ‘‘communications amend its regulations, the Commission this regulation to include Buckley’s that are intended to, or have the effect should refrain from redefining such major purpose test, the proposal for of, influencing the outcome of federal fundamental and statutorily defined which is discussed separately below, elections.’’ McConnell, 124 S.Ct. at 654. terms, in the absence of further the Commission is considering BCRA further provides that any guidance from Congress. Is it consistent amending this definition so that the first disbursement for an electioneering with BCRA to include all Federal three types of Federal election activity communication that is coordinated with election activity within the regulatory and electioneering communications a candidate, candidate authorized definition of ‘‘expenditure’’ when BCRA would be counted toward the $1,000 committee, or a Federal, State, or local only added electioneering expenditure thresholds. political party committee shall be communications to the definition of Alternative 1–A would define those treated as a contribution to the ‘‘contribution or expenditure’’ in 2 ‘‘expenditures’’ that count toward the candidate or the candidate’s party and U.S.C. 441b(b)(2)? Does BCRA’s $1,000 threshold, but this definition as an expenditure by that candidate or specification in 2 U.S.C. 441a(a)(7)(C) would not apply in any other context in party. 2 U.S.C. 441a(a)(7)(C). that coordinated ‘‘disbursements’’ for which the term ‘‘expenditure’’ is used in In rejecting various challenges to electioneering communications can be FECA or in the Commission’s BCRA’s electioneering communication contributions provide any guidance regulations. requirements, the Supreme Court regarding whether payments for The Commission is considering a addressed the purpose and effect of electioneering communications should number of issues related to Alternative electioneering communications in be considered expenditures? Is it 1–A. Should persons other than several instances. McConnell concluded consistent with Congressional intent for political party committees be subject to that while advertisers seeking to evade the Commission to categorize voter a rule that treats the first three types of the express advocacy line create registration, voter identification, get-out- Federal election activities as advertisements that ‘‘do not urge the the-vote and generic campaign activities ‘‘expenditures’’ for purposes of the viewer to vote for or against a candidate by a State or local candidate committee $1,000 threshold in the definition of in so many words, they are no less as ‘‘for the purpose of influencing any ‘‘political committee?’’ Should all of clearly intended to influence the election to Federal office?’’ Federal election activity and all election.’’ McConnell, 124 S.Ct. at 689. Does the definition of ‘‘independent electioneering communications count The Supreme Court also referred a expenditure’’ in 2 U.S.C. 431(17)(A), toward political committee status, or second time to the use of electioneering which requires express advocacy, limit should the Commission make communications ‘‘to influence federal Commission’s ability to define an distinctions to count only certain types elections’’ and quoted approvingly from ‘‘expenditure’’ to communications that of Federal election activity or only the decision below, which referred to include express advocacy? If not, can certain electioneering communications electioneering communications as either communications be considered toward political committee status? For
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example, should Federal election application of the concepts of Federal Court’s discussion of Federal election activity that does not refer to a clearly election activities and electioneering activities in McConnell was framed in identified Federal candidate count communications in connection with the political party and candidate toward political committee status? Alternative 1–A. context, it recognized that these same Would a definition of ‘‘expenditure’’ BCRA imposes prohibitions and activities by tax-exempt organizations that includes voter drive activities by restrictions related to Federal election do affect Federal elections. McConnell, State or local candidate committees on activities on national party committees 124 S.Ct. at 678 n.68. Given the behalf of their own candidacies be (2 U.S.C. 441i(c)), State, district, and Supreme Court’s conclusions that types overly broad? local political party committees (2 1 through 3 of Federal election activities Should funds received for Federal U.S.C. 441i(b)), Federal candidates (2 have a demonstrable effect on Federal election activities types 1 through 3 or U.S.C. 441i(e)(1)(A), (e)(4)(A), and elections, can the Commission conclude electioneering communications count as (e)(4)(B)), and State candidates (2 U.S.C. that the same communications and the contributions for purposes of the $1,000 441i(f)). Consequently, most of the same activities by actors other than threshold? If any disbursements for Supreme Court’s consideration of political party committees and these activities should count as Federal election activities arose with candidates are not expenditures, i.e., expenditures, should the corresponding respect to political party committees. In payments for the purpose of influencing funds received to make those this context, the ‘‘close relationship’’ of a Federal election? In an effort to take disbursements count as contributions? Federal officeholders and candidates to the Supreme Court’s conclusions into Should the Commission treat funds their political parties was part of the consideration, Alternative 1–B would raised by a State or local candidate justification of the Government’s incorporate the concepts of Federal committee through solicitations interest in regulating Federal election election activities types 1 through 3, but advocating their own election, as well as activities. See McConnell, 124 S.Ct. at would also recognize that applying incidentally expressly advocating the 668 and n.51. In fact, in disposing of an these concepts to actors other than election or defeat of a clearly identified equal protection claim that BCRA political party committees and Federal candidate, or promoting, discriminates against political party candidates requires some tailoring of supporting, attacking or opposing a committees in favor of ‘‘interest Federal election activities. clearly identified Federal candidate, as groups,’’ the Supreme Court A proposal to regulate Federal funds contributed ‘‘for the purpose of acknowledged: ‘‘Interest groups, election activities by persons other than influencing any election for Federal however, remain free to raise soft money political party committees and office?’’ Please note that none of the to fund voter registration, GOTV candidates requires a reexamination of regulatory text set forth below relates to activities, mailings, and broadcast those activities in order to determine this proposal regarding ‘‘contributions’’ advertising (other than electioneering whether those activities carried out by as used in proposed 11 CFR communications).’’ Id., 124 S.Ct. at 686. such persons are the functional 100.5(a)(1)(i). The approach of including all funds equivalent of the same activities when Finally, should the Commission disbursed for Federal election activities carried out by political party confine any reexamination of the in the definition of ‘‘expenditure,’’ if committees and candidates. Inherent in definition of ‘‘expenditure’’ to apply adopted, would extend restrictions any activities conducted by political only as that term is used as part of the related to Federal election activities party committees or candidates is a definition of ‘‘political committee?’’ beyond political party committees and partisan purpose, as the Supreme Court FECA already provides two definitions Federal candidates to all persons, has recognized in other contexts. See of ‘‘expenditure,’’ one in 2 U.S.C. 431(9) including a State or local candidate FEC v. Colorado Republican Federal and a broader definition in 2 U.S.C. committee.6 Would such a regulation be Campaign Committee, 533 U.S. 431, 450 441b. Currently, ‘‘expenditure’’ in 11 consistent with FECA, as amended by (2001) (noting ‘‘the seemingly CFR 100.5(a) uses the definition in 2 BCRA? Would it be consistent with unexceptionable premise that parties are U.S.C. 431(9) and 11 CFR part 100, Congressional intent? organized for the purpose of electing subpart D. Should the Commission Similarly, BCRA amended the candidates’’ and agreeing that ‘‘political create by regulation a third definition of definition of ‘‘contribution or parties are dominant players, second ‘‘expenditure’’ for determining political expenditure’’ in the corporate and labor only to the candidates themselves, in committee status? organization prohibitions to include federal elections’’). When the proposed rules in Alternative 1–B consider 2. 11 CFR Part 100, Subpart D— payments ‘‘for any applicable Federal election activities conducted by Definition of ‘‘expenditure’’ electioneering communication.’’ 2 U.S.C. 441b(b)(2). BCRA did not amend, other persons, they attempt to be The Commission is also considering however, the definition of consistent with McConnell by limiting amendments to its general definition of ‘‘expenditure’’ with a broader the activities included in the ‘‘expenditure’’ to reflect McConnell’s application in 2 U.S.C. 431(9). Would ‘‘expenditure’’ definition to those with a conclusion that certain communications the approach of including all payments partisan purpose. and certain voter drives have the for electioneering communications in Are the proposed rules consistent purpose or effect of influencing Federal the regulations implementing the 2 with McConnell? Do they limit the elections. activities included in the ‘‘expenditure’’ U.S.C. 431(9) definition of One approach would be to add definition to those activities that have a ‘‘expenditure’’ be consistent with FECA, payments for the Federal election partisan purpose? Is Alternative 1–B’s as amended by BCRA? Would it be activities described in 2 U.S.C. treatment of a State or local candidate consistent with Congressional intent? 431(20)(A)(i) through (iii) and payments The proposed rules that follow as committee’s partisan activities for electioneering communications to Alternative 1–B present a narrower consistent with BCRA? Is Alternative 1– the definition of ‘‘expenditure’’ in 11 approach. Although the Supreme B consistent with 2 U.S.C. 441i(e)(4), CFR part 100, subpart D. In evaluating which permits Federal candidates to this approach to amending its rules, the 6 State and local candidate committees are subject solicit up to $20,000 per individual for Commission will consider the same to limitations with respect to their type 3 Federal certain Federal election activities or for issues raised above concerning BCRA’s election activities. 2 U.S.C. 441i(f). an entity whose principal purpose is to
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conduct certain Federal election campaigns must not be specifically conducted by these party committees on activities? identified by the organization with any behalf of the Presidential nominees are a. Proposed 11 CFR 100.115—Federal candidate or political party.’’ 26 CFR not treated as expenditures. In order to election activity: Partisan voter drives. 1.527–6(b)(5). In a private letter ruling, leave this exemption unaffected by the Because the Supreme Court recognized the IRS determined that a voter drive inclusion of the types 1 and 2 of Federal that voter registration activity that takes was partisan, even though the activities election activity in the definition of place within 120 days before a Federal ‘‘may not be specifically identified with ‘‘expenditure,’’ the proposed rules election, voter identification, and get- a candidate or party in every case.’’ It would also amend 11 CFR 100.149 to out-the-vote activities ‘‘confer did so due to ‘‘the intentional and provide expressly that the ‘‘coattails’’ substantial benefits on federal deliberate targeting of individual voters exemption would apply candidates’’ and because voter drives or groups of voters on the basis of their notwithstanding proposed 11 CFR may be for the purpose of influencing expected preference for pro-issue 100.115. Federal elections even when performed candidates, as well as the timing of the A proposal for the allocation of these by tax-exempt organizations, Alternative dissemination and format of the expenditures is discussed below. 1–B would incorporate these aspects of materials used.’’ Priv. Ltr. Rul. 99–25– Proposed section 100.155 would state Federal election activities in the 051 (Mar. 29, 1999). Should the that any non-Federal funds permissibly definition of ‘‘expenditure.’’ See Commission otherwise clarify this rule disbursed by a separate segregated fund McConnell, 124 S.Ct. at 675, 678 n.68, or consider any other criteria? or a nonconnected committee for and the discussion above in part II, A., Should voter identification be partisan voter drives pursuant to the 1. Proposed section 100.34 would define considered part of get-out-the-vote allocation rule in proposed 11 CFR ‘‘partisan voter drives,’’ and proposed activities subject to section 100.133? If 106.6 would not be ‘‘expenditures.’’ section 100.115 would include so, what changes to the proposed rules, Consequently, the non-Federal funds payments for voter registration, voter if any, are necessary? would not count toward the $1,000 of The proposed new rules for voter identification, and GOTV activities into expenditures required for political registration and get-out-the-vote the regulatory definition of committee status under current 11 CFR activities at 11 CFR 100.34(a) and (c) ‘‘expenditure,’’ subject to the exceptions 100.5(a) (or proposed 11 CFR would retain by reference the described below. 100.5(a)(1)(i)). The Commission seeks As reflected in FECA, the proposed nonpartisan exception to the definition comment on whether this is an rules in Alternative 1–B would of ‘‘expenditure’’ in proposed 11 CFR appropriate conclusion. distinguish partisan from nonpartisan 100.133. Similarly, proposed 11 CFR Federal election activities. FECA 100.34(b) would exclude disbursements Additionally, the Commission seeks exempts ‘‘nonpartisan activity designed for voter identification when no effort comment on the following questions. to encourage individuals to vote or has been or will be made to determine Are proposed sections 100.34 and register to vote’’ from the definition of or record the party or candidate 100.115 sufficiently tailored to reflect ‘‘expenditure.’’ 2 U.S.C. 431(9)(B)(ii). In preference of individuals on the voter the application of Federal election order for voter drives to be list from the definition of ‘‘partisan activities to persons other than political ‘‘nonpartisan,’’ Commission regulations voter drive’’ and therefore party committees and candidates? The currently require that no effort is or has ‘‘expenditure.’’ See proposed 11 CFR proposed regulations would treat many been made to determine the party or 100.34(b) and 100.115. of the voter activities conducted by candidate preference of individuals The proposed rule at new 11 CFR State and local candidate committees on before encouraging them to vote. 11 CFR 100.115 would also exclude Levin funds behalf of their own candidacies as 100.133. from the definition of ‘‘expenditure.’’ ‘‘expenditures.’’ Is there any evidence Alternative 1–B includes proposed Levin funds are funds raised by State, that Congress intended for the changes to section 100.133. First, the district, or local political party Commission to categorize such activities proposal would expressly state that if committees and party organizations as ‘‘for the purpose of influencing any voter registration or get-out-the-vote pursuant to 11 CFR 300.31 and election for Federal office?’’ Should the activities included a communication disbursed by the same committee or Commission give any consideration in that promotes, supports, attacks, or organization pursuant to 11 CFR 300.32. this context to the statutory exemptions opposes a Federal or non-Federal BCRA specifically permits State, from the definition of Federal election candidate or if it promotes or opposes district, and local political party activity set forth in 2 U.S.C. 431(20)(B)? a political party, then the voter committees to raise and spend Levin Should the proposed rules include an registration or get-out-the-vote activities funds for an allocable portion of voter exception for the receipt of funds is partisan. See proposed 11 CFR registration, voter identification, and solicited by Federal candidates under 2 100.133(a). Second, the proposal would get-out-the-vote activities, rather than U.S.C. 441i(e)(4)(B)(ii), which under add a provision that if information requiring these committees to use certain circumstances permits Federal concerning likely party or candidate entirely Federal funds for these Federal candidates to solicit funds from preference has been used to determine election activities. 2 U.S.C. 441i(b)(2). individuals of up to $20,000—an which voters to encourage to register to This exception in BCRA would be amount that exceeds the contribution vote or to vote, the voter registration and preserved for State, district, and local limit applicable to certain political get-out-the-vote activities would be political party committees and committees in 2 U.S.C. 441a? Or, should partisan. See proposed 11 CFR organizations by the exclusion of Levin the exception in 2 U.S.C. 100.133(b). funds from the proposed rules. 441i(e)(4)(B)(ii) be limited to entities These proposed changes would State and local political party that are not political committees or that achieve more harmony between the committees may also conduct voter confine their voter registration, voter Commission’s approach to this issue drives under the ‘‘coattails’’ exception identification, and get-out-the-vote and the Internal Revenue Service’s (‘‘the to the definition of ‘‘expenditure.’’ 2 activities to nonpartisan activities? If the IRS’s’’) approach. The IRS regulations U.S.C. 431(9)(B)(ix); 11 CFR 100.149. exception were confined to nonpartisan provide that ‘‘to be nonpartisan, voter Under certain conditions, voter activities, what evidence, if any, is there registration and ‘get-out-the-vote’ registration and GOTV activities that Congress intended for the exception
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in 2 U.S.C. 441i(e)(4)(B)(ii) to be campaign activities, which are public and candidates, should a temporal interpreted in such a way? communications that promote or oppose element be included in any such rule? The definition of ‘‘partisan voter a political party, and public Might an advertisement by a person drive’’ in proposed section 100.34 communications that promote, support, other than a political party committee or would not include some voter attack, or oppose a clearly identified candidate be properly understood as, for registration and get-out-the-vote candidate. See 2 U.S.C. 431(20)(A)(ii) example, promoting a Federal candidate activities that would simultaneously fail and (iii); 11 CFR 100.24(a)(1); (b)(2)(ii); if publicly distributed close to an to qualify for the exemption of (b)(3); 100.25; and 100.26. Proposed election, but the same advertisement by ‘‘nonpartisan voter registration and get- section 100.155 would state that any the same person publicly distributed far out-the-vote activities’’ in section non-Federal funds permissibly from an election might not promote the 100.133, in either its current form or as disbursed by a separate segregated fund candidate? Should any of FECA’s proposed to be amended. For example, or a nonconnected committee for public temporal limitations, which are some voter registration activity could communications pursuant to the discussed in connection with take place more than 120 days before an allocation rule in proposed 11 CFR expenditures generally below, be election, which would mean that 106.6 would not be ‘‘expenditures.’’ The adapted for this purpose? payments for it would not be Commission seeks comment on whether Would the ‘‘promote, support, attack expenditures. See proposed 11 CFR this is an appropriate conclusion. or oppose’’ standard be appropriate for 100.34(a) (citing current 11 CFR The Supreme Court found that public those 527 organizations (tax exempt 100.24(b)(1)) and 100.115. That same communications that promote, support, ‘‘political organizations,’’ discussed activity could also fail to qualify as attack or oppose a clearly identified more infra) that by their very nature nonpartisan under proposed 11 CFR Federal candidate ‘‘have a dramatic have influencing elections as a primary 100.133 if it is subject to any of that effect on federal elections.’’ McConnell, purpose? Would the ‘‘promote, support, section’s exclusions, which include, for 124 S.Ct. at 675. The Supreme Court attack or oppose’’ standard be example, directing voter drives to also found that generic campaign appropriate for all 527 organizations? supporters of a political party. Any activity ‘‘confer[s] substantial benefits Should the Commission adopt a voter registration or get-out-the-vote on federal candidates.’’ Id. If the different standard for 501(c) activities that fall in this ‘‘gap’’ would Commission were to apply the voter organizations (other tax exempt not be expenditures under proposed drive activities of types 1 and 2 of organizations, discussed more infra) section 100.115, even though they Federal election activities outside of the that would require not only ‘‘promote, would not qualify as ‘‘nonpartisan’’ political party committee context, these support, attack or oppose’’ content, but under the exception in proposed section concepts may require modification to also some basis for concluding the 100.133. This gap may be appropriate in incorporate a partisan element. In message is to influence a Federal that it reflects that such activity cannot contrast, generic campaign activity and election? Such additional bases could be considered nonpartisan for purpose type 3 of Federal election activities, by include: (1) Reference to the clearly of the exemption, but it may not rise to definition, include material that either identified candidate as a candidate; (2) the level of an ‘‘expenditure’’ under promotes, supports, attacks or opposes a reference to the election or to the voting proposed sections 100.34 and 100.115 clearly identified Federal candidate or process; (3) reference to the clearly for the same reason that similar activity promotes or opposes a political party. identified candidate’s opponent; or (4) by a political party committee would be This partisan content obviates the need reference to the character or fitness for excluded from the definition of ‘‘Federal to tailor these concepts for application office of the clearly identified candidate. election activity.’’ 11 CFR 100.24(b)(1). outside the political party and candidate Alternatively, should the Commission Alternatively, this gap could be context. adopt the ‘‘promote, support, attack or eliminated by either adding an Consistent with this approach, the oppose’’ standard for 501(c) additional exemption from the Commission recently issued Advisory organizations, but build in an exception definition of ‘‘expenditure’’ in 11 CFR Opinion 2003–37 in which it stated that for a message that is confined to part 100, subpart E, or dropping the ‘‘communications that promote, expressly advocating seeking action by time limitations of current 11 CFR support, attack or oppose a clearly the clearly identified candidate on an 100.24(a)(1), (a)(3)(i), and (b)(1) from identified Federal candidate have no upcoming legislative or executive proposed section 100.34. Under the less a ‘dramatic effect’ on Federal decision without reference to any latter approach, the time limitations in elections when aired by other types of candidacy, election, voting, opponent, current section 100.24 would be political committees, rather than party character, or fitness for office? In maintained with respect to the political committees or candidate committees.’’ essence, the Commission seeks party committees whose Federal AO 2003–37, at 3. In that advisory comment on whether it should define election activities are subject to BCRA’s opinion, the Commission concluded what is an expenditure in a way that time limits. 2 U.S.C. 431(20)(A)(i). The that public communications that follows the functional distinctions in Commission seeks comment on these promote, support, attack or oppose a the Internal Revenue Code and issues. clearly identified Federal candidate recognizes that some organizations b. Proposed 11 CFR 100.116—Certain when made by political committees are engage in ‘‘grassroots lobbying’’ public communications. Alternative 1–B expenditures. Proposed section 100.116 campaigns primarily designed to affect would also incorporate into the would incorporate this conclusion in upcoming legislative or executive definition of ‘‘expenditure’’ payments the Commission’s regulations. It would actions. If so, what regulatory language for public communications that refer to also treat public communications that would be appropriate? a political party or a clearly identified promote or oppose political parties in a In different contexts, FECA now Federal candidate and promote or similar fashion, and it would apply to provides at least three content standards support, or attack or oppose any communications made by all persons, for communications—express advocacy; political party or any Federal candidate. not just political committees. If new promote, support, attack or oppose; and See proposed 11 CFR 100.116. This rules apply the ‘‘promote, support, reference to a clearly identified Federal proposed rule is based on two types of attack or oppose’’ standard to actors candidate. See, e.g., 2 U.S.C. 431(17)(A); Federal election activities: generic other than political party committees (20)(A)(iii); 434(f)(3)(A)(i)(I) and
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441d(a). What other content standards 501(c) or 527 of the Internal Revenue this statutory definition provide that that are not vague or overbroad, if any, Code in determining whether a payment ‘‘the term ‘exempt function’ includes all should be included in the definition of is an expenditure? Should some activities that are directly related to and ‘‘expenditure?’’ activities be expenditures if made by a support the process of influencing or c. Electioneering communications. section 527 organization, regardless of attempting to influence the selection, Alternative 1–B does not include whether it is a Federal political nomination, election, or appointment of payments for electioneering committee? Should the same rules or any individual to public office or office communications in the definition of different rules apply to organizations in a political organization.’’ 26 CFR ‘‘expenditures.’’ Many electioneering operating under section 501(c)(3), (4), or 1.527–2(c)(1). IRS regulations also communications either already are (6)? specify that whether an expenditure is included in the definition of Should the timing of a payment affect for an exempt function depends on all ‘‘expenditure’’ or would be included whether it is an ‘‘expenditure?’’ FECA the facts and circumstances. Id. under the proposal. Under the current and BCRA provide several temporal A Revenue Ruling issued by the IRS rules, political committees must report limitations on various provisions that on December 23, 2003, stated that communications that satisfy the general recognize the significance of proximity ‘‘[w]hen an advocacy communication definition of ‘‘electioneering to an election. FECA provides that explicitly advocates the election or communications’’ in 2 U.S.C. certain independent expenditures must defeat of an individual to public office, 434(f)(3)(A) as expenditures. 11 CFR be reported within 24 hours if made the expenditure clearly is for an exempt 104.20(b). In addition, if an during the twenty days before an function under § 527(e)(2).’’ Rev. Rul. electioneering communication election. 2 U.S.C. 434(g)(1) (formerly 2 04–6, at 4. The Revenue Ruling also promotes, supports, attacks, or opposes U.S.C. 434(c)(2)(C)). BCRA limits identified a non-exhaustive list of a Federal candidate, it would also be a electioneering communications to the factors that ‘‘tend to show’’ whether an public communication that promotes, thirty days before a primary election advocacy communication on a public supports, attacks, or opposes a Federal and the sixty days before a general policy issue is for an exempt function or candidate, which would make it an election. 2 U.S.C. 434(f)(3)(A)(i)(II). not, in the absence of ‘‘explicit expenditure under proposed section BCRA also includes voter registration advocacy.’’ The six identified factors 100.116. Consequently, the only activity in Federal election activity only that tend to show a communication is electioneering communications that in the 120 days before a regularly for an exempt function are: (a) The would not be treated as expenditures scheduled Federal election. 2 U.S.C. under Alternative 1–B would be those 431(20)(A)(i). Do any of these time communication identifies a candidate made by persons other than political periods provide an appropriate temporal for public office; (b) the timing of the committees that do not promote, standard for any expenditures? communication coincides with an support, attack, or oppose a clearly Should the rules address expenditures electoral campaign; (c) the identified Federal candidate. Should the that might be in connection with more communication targets voters in a final rules include all electioneering than one Federal election? The particular election; (d) the communications in the definition of Commission recently concluded in an communication identifies that ‘‘expenditure?’’ advisory opinion that an advertisement candidate’s position on the public d. Other potential approaches. The that was coordinated by a Congressional policy issue that is the subject of the Commission also seeks comments on candidate with a presidential campaign communication; (e) the position of the other potential approaches to amending committee could be a contribution to candidate on the public policy issue has the definition of ‘‘expenditure’’ in 11 the presidential campaign committee in been raised as distinguishing the CFR part 100, subpart D. Should a connection with the upcoming candidate from others in the campaign, payment’s status as an ‘‘expenditure’’ Presidential primary election in that either in the communication itself or in depend on the identity of the maker? State and an expenditure of the other public communications; and (f) For example, should payments for Congressional candidate in connection the communication is not part of an public communications that promote, with her special election. AO 2004–1. ongoing series of substantially similar support, attack or oppose a Federal Should this conclusion be incorporated advocacy communications by the candidate be expenditures only if made into regulations or should it be organization on the same issue. The five by a Federal political committee? reconsidered? factors that tend to show a Are there other identifying The Commission also seeks comment communication is not for an exempt characteristics that should be on whether any aspect of Alternative 1– function are: (a) The absence of one or considered in determining whether a B should be revised in order to more of the factors listed in (a) through payment is an expenditure? For harmonize the definition of (f) above; (b) the communication example, should payments by a tax- ‘‘expenditure’’ in the Commission’s identifies specific legislation, or a exempt, charitable organization regulations with the approach taken by specific event outside the control of the operating under 26 U.S.C. 501(c)(3) be the IRS. Section 527(e)(2) of the Internal organization, that the organization exempt from the definition of Revenue Code of 1986, as amended, hopes to influence; (c) the timing of the ‘‘expenditure?’’ In this regard, how defines the term ‘‘exempt function’’ as communication coincides with a should the Commission interpret the ‘‘the function of influencing or specific event outside the control of the Internal Revenue Service’s Technical attempting to influence the selection, organization that the organization hopes Advice Memorandum 89–36–002 (Sept. nomination, election, or appointment of to influence; (d) the communication 8, 1989), which permitted a 501(c)(3) any individual to any Federal, State, or identifies the candidate solely as a organization to make advertisements local public office or office in a political government official who is in a position that ‘‘support or oppose a candidate in organization, or the election of to act on the public policy issue in an election campaign,’’ without losing Presidential or Vice Presidential connection with the specific event; and its 501(c)(3) status for intervening in a electors, whether or not such individual (e) the communication identifies the political campaign? or electors are selected, nominated, candidate solely in the list of key or Should the Commission consider an elected, or appointed.’’ 26 U.S.C. principal sponsors of the legislation that organization’s status under section 527(e)(2). IRS regulations implementing is the subject of the communication.
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To what extent should Alternative 1– that any funds received in response are that such voter registration and get-out- B be modified for harmony with the necessarily ‘‘for the purpose of the-vote activities would be subject to IRS’s approach? influencing any election for Federal the conditions set forth in proposed 11 office,’’ so that they are contributions. CFR 100.133, as discussed above. The 3. 11 CFR Part 100, Subpart B— Proposed section 100.57 would state purpose of such a revision would be to Definition of ‘‘contribution’’ that any funds provided in response to ensure that corporations and labor The Commission is also considering a solicitation that contained express organizations would be subject to the amending the definition of advocacy for or against a clearly same conditions as political committees, ‘‘contribution’’ in 11 CFR part 100, identified Federal candidate are as well as other conditions specific to subpart B to make changes that would contributions. If a solicitation states that corporations and labor organizations, correspond to those proposed for the the solicitor intends to take actions to when spending non-Federal funds on definition of ‘‘expenditure’’ in elect or defeat a particular candidate, is these voter registration and get-out-the- Alternative 1–B. Additionally, the it then logical to treat funds that are vote activities. The Commission seeks Commission is considering amending its provided in response as funds that are comment on whether the same rules definition of ‘‘contribution’’ to include ‘‘for the purpose of influencing a should apply not only to corporations any funds that are received in response Federal election?’’ Should the standard and labor organizations, but also to any to a communication containing express be that the solicitation must not just person or entity who uses corporate or advocacy of a clearly identified include express advocacy but state that labor organization general treasury candidate. the funds will be used for express funds for these purposes. a. Amendments corresponding to advocacy? Should funds raised by a The Commission also seeks comment amendments to ‘‘expenditure’’ State or local candidate for his or her on whether current 11 CFR 100.133 definition. Current 11 CFR 102.5(b) own candidacy be treated as should be amended to make clear that, imposes requirements on organizations contributions ‘‘for the purpose of when a corporation or labor that do not qualify as ‘‘political influencing a Federal election’’ if the organization conducts voter registration committees’’ under current 11 CFR State or local candidate’s solicitation or get-out-the-vote activities, it would be 100.5 and that make contributions or includes express advocacy for or against subject to the requirements of 11 CFR expenditures. The organization must a clearly identified Federal candidate? 100.133 and 114.4(c) and (d). demonstrate through a reasonable Should proposed section 100.57 also Additionally, the Commission seeks accounting method that, whenever it include solicitations that expressly comment on whether the ‘‘express makes expenditures, it has received advocate the election or defeat of advocacy’’ standard set forth in 11 CFR sufficient funds subject to the Federal candidates of a particular party 114.4(c)(2) and (d)(1) should be changed limitations and prohibitions of FECA to without clearly identifying the to the ‘‘promote, support, attack or make the expenditures. Such particular candidates? Should the new oppose’’ standard. Would the latter organizations must also keep records of rule use a standard other than express standard be an appropriate standard for receipts and disbursements and, upon advocacy, such as a solicitation that determining whether a communication request, must make such records promotes, supports, attacks, or opposes has the ‘‘purpose of influencing a available to the Commission. See a Federal candidate, or indicates that Federal election?’’ Would such an current 11 CFR 102.5(b)(1). funds received in response thereto will approach be consistent with MCFL? Consequently, if the definition of be used to promote, support, attack, or Corporations and labor organizations ‘‘expenditure’’ is amended in any way, oppose a clearly identified Federal may also conduct certain voter then any entity making such candidate? Should the new rule specify registration and GOTV activities aimed expenditures would be required to do so which contributions result from which at their restricted classes. 11 CFR using only contributions that comply solicitations? Should the new rule 114.3(c)(4). Because these activities are with the amount limitations and source incorporate the standards in current 11 permitted by 11 CFR part 114, they are prohibitions of FECA. If the CFR 102.5(a)(2)(i) through (iii) to clarify exempt from the definition of Commission adopts the amended further the types of funds received that ‘‘expenditure.’’ 2 U.S.C. 431(9)(B)(v); 11 definition of ‘‘expenditure,’’ as must be treated as contributions? A proposed in Alternative 1–B, is an CFR 100.141. No changes to section conforming amendment to current 11 114.3(c)(4) are proposed because the amendment to Commission regulations CFR 102.5(a)(2)(ii) would be necessary if needed to state that funds used for any Commission intends to retain this any rule based on proposed section exception to the definition of expenditures are contributions to that 100.57 is adopted. entity? Please note that proposed rule ‘‘expenditure.’’ text for this approach is not included 4. Proposed 11 CFR 114.4—Corporate III. Major Purpose below, but if the Commission were to and Labor Organization decide to adopt Alternative 1–B and this Communications A. Major Purpose Requirement approach, then the text in the final rules Current 11 CFR 114.4(c)(2) and (d) The Commission seeks comment as to amending the definition of permit corporations and labor whether the existing definition of ‘‘contribution’’ would be similar to the organizations to conduct voter ‘‘political committee’’ in 11 CFR text in proposed sections 100.115 and registration and get-out-the-vote 100.5(a) should be amended by 100.116 regarding ‘‘expenditure.’’ activities beyond their restricted class incorporating the major purpose Should entities that are not political provided that any communication does requirement, and if so, how that should committees be required to report their not expressly advocate the election or be accomplished. Under the proposed contributions received and expenditures defeat of any clearly identified section 100.5(a)(1), a committee, club, made in this context? candidate(s) or candidates of a clearly association or group of persons that b. Proposed 11 CFR 100.57—Funds identified political party and subject to receives in excess of $1,000 in total solicited with express advocacy. The other restrictions. The Commission contributions or makes in excess of Commission is considering whether seeks comment on proposed rules that $1,000 in total expenditures would be a solicitations containing express would amend paragraphs (c)(2) and (d) political committee only if ‘‘the advocacy of federal candidates establish and add new paragraph (c)(3) to specify nomination or election of one or more
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Federal candidates is a major purpose’’ States Reports as though they were the [i]f it were otherwise,—if an organization, for of the committee, club, association or United States Code.’’ St. Mary’s Honor example, were exempted because lobbying group of persons (emphasis added). Ctr. v. Hicks, 509 U.S. 502, 515 (1993). was only one of its main activities—the Act In Aka v. Washington Hosp. Ctr., 156 would in large measure be reduced to a mere 1. Major Purpose or Primary Purpose? exhortation against abuse of the legislative F.3d 1284 (D.C. Cir. 1998), the Circuit process. In construing the Act narrowly to The proposed rule would include the Court explained that ‘‘the [Supreme] indefinite article ‘‘a’’ to modify ‘‘major avoid constitutional doubts, we must also Court’s every word and sentence cannot avoid a construction that would seriously purpose,’’ rather than the definite article be read in a vacuum; its impair the effectiveness of the Act in coping ‘‘the.’’ The consequence would be that pronouncements must be read in light of with the problem it was designed to alleviate. the major purpose element of the the holding of the case and to the degree Id. at 622–23. definition of ‘‘political committee’’ may possible, so as to be consistent with the be satisfied if the nomination or election The Court’s ruling in Harriss may be Court’s apparent intentions.’’ Id. at instructive because, in that case, the of a candidate or candidates is one of 1291. two or more major purposes of an Court was interpreting the meaning of organization, even if it is not its primary As explained above, in Buckley, the the word ‘‘principal,’’ which, when purpose. The Commission seeks Court imposed the ‘‘major purpose’’ used as an adjective, is defined as ‘‘most comment regarding whether, to satisfy requirement because it was concerned important.’’ See Webster’s II New the major purpose requirement, the that the statutory definition of political Riverside Dictionary 556 (1st ed. 1984). nomination or election of candidates committee ‘‘could be interpreted to The term ‘‘major,’’ on the other hand, is must be the predominant purpose of the reach groups engaged purely in issue defined as ‘‘greater in importance rank organization, or whether the major discussion.’’ Buckley, 424 U.S. at 79. or stature’’ or ‘‘demanding great purpose standard is satisfied when the Consequently, the ‘‘apparent intention’’ attention.’’ Webster’s II New Riverside nomination or election of candidates is of the Court appears to have been to Dictionary 421 (1st ed. 1984). Thus, a major purpose of the organization, limit the applicability of the definition ‘‘major,’’ unlike ‘‘principal,’’ does not even when the organization spends of political committee so that it would signify ‘‘most important’’ or ‘‘primary’’ more funds for another purpose. not cover organizations involved or ‘‘first in rank.’’ Given that the In first articulating the major purpose ‘‘purely in issue discussion’’ but that Supreme Court has interpreted the requirement in Buckley, the Supreme nevertheless engage in some incidental phrase ‘‘principal purpose’’ in a statute Court determined that the definition of activity that might otherwise satisfy the to include an organization for which political committee ‘‘need only Act’s $1,000 expenditure or lobbying is merely ‘‘one of its main encompass organizations that are under contribution political committee activities,’’ would the Commission be the control of a candidate or the major thresholds. Would it be consistent with justified in interpreting the phrase purpose of which is the nomination or the Court’s apparent intention for the ‘‘major purpose’’ in Buckley to also election of a candidate.’’ Buckley, 424 Commission to amend its definition of mean ‘‘one of its main activities?’’ Is it U.S. at 79 (emphasis added). Likewise, ‘‘political committee’’ to only require significant that the Court in Buckley in MCFL, the Supreme Court observed that the nomination or election of chose to use the phrase ‘‘major purpose’’ that: candidates be a major purpose rather instead of ‘‘primary purpose’’ or ‘‘principal purpose?’’ should MCFL’s independent spending than the primary purpose of the become so extensive that the organization’s organization? It seems that an 2. Particular Federal Candidates major purpose may be regarded as campaign organization that has the nomination or The proposed rule would require that activity, the corporation would be classified election of candidates as a major the organization have as a major as a political committee. As such it would purpose is not ‘‘engaged purely in issue purpose the nomination or election of automatically be subject to the obligations discussion.’’ Moreover, such a and restrictions applicable to those groups candidates for Federal office, as definition of political committee whose primary objective is to influence opposed to non-Federal office. The appears unlikely to cover organizations political campaigns. Commission seeks comment regarding that engage in some incidental activity MCFL, 479 U.S. at 262 (emphasis added whether the proposed rule should be that causes them to exceed the $1,000 and citations omitted). These passages limited to the nomination or election of expenditure or contribution thresholds. indicate that the nomination or election Federal candidates or, instead, whether of candidates must be the major purpose In United States v. Harriss, 347 U.S. the nomination or election of all or, put another way, the primary 612, 621–22 (1954), the Supreme Court candidates, including candidates for objective of the organization. In light of interpreted the meaning of the term non-Federal office will suffice. the Supreme Court’s repeated use of the ‘‘principal purpose’’ in the Federal Likewise, the Commission asks whether term ‘‘the major purpose,’’ can the Regulation of Lobbying Act. That statute the major purpose requirement Commission substitute the term ‘‘a provided that certain provisions applied mandates that the organization be major purpose,’’ which appears to have only to those persons whose ‘‘principal involved in the nomination or election a different meaning? purpose’’ is to aid in the passage or of one or more particular candidates or, Could the major purpose standard in defeat of legislation. Id. at 619. The instead, whether it is sufficient for the Buckley nevertheless be interpreted to Court refused to interpret the statute to organization to have a major purpose of require that the nomination or election require that the influencing of nominating or electing certain categories of candidates be ‘‘a’’ major purpose of legislation be the person’s most of candidates, such as Democrats or the organization, even when the important—or primary—purpose. Republicans, or women, or candidates organization has other, perhaps more Instead, the Court concluded that the who take a position on a particular significant, purposes? The Commission phrase ‘‘principal purpose’’ was issue. In FEC v. GOPAC, Inc., 917 F. notes that the ‘‘major purpose’’ designed to exclude from the coverage Supp. 851 (D.D.C. 1996), the District requirement appears only in judicial of the act those persons ‘‘having only an Court interpreted Buckley and MCFL to opinions not in any statute, and that the incidental purpose of influencing require that the major purpose of the Supreme Court has warned against legislation.’’ Id. at 622. According to the organization be ‘‘the nomination or ‘‘dissect[ing] the sentences of the United Supreme Court: election of a particular candidate or
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candidates for federal office.’’ GOPAC, The Commission proposes no changes This would include the organization’s 917 F. Supp. at 859 (emphasis added). to existing 11 CFR 100.5(b) through (e). organizational documents, such as its The Commission seeks comment as to Nevertheless, the Commission seeks charter, constitution, by-laws, etc. The whether this is a proper reading of comments regarding whether any second prong would require that an Buckley and MCFL. Should the amendments to these paragraphs are organization’s disbursements in Commission issue regulations that necessary. connection with a Federal election exceed $10,000. This two-pronged conflict with the GOPAC decision? B. Major Purpose Tests approach would ensure that documents 3. Existing 11 CFR 100.5(b) through (e) The Commission seeks comment on or communications that demonstrate Please note that current 11 CFR proposed 11 CFR 100.5(a)(2)(i) through that an organization’s avowed purpose 100.5(b) through (e), which identify (iv), which provides four tests for is to nominate, elect, defeat, promote, certain organizations that are considered determining when an entity would attack, support or oppose a candidate or to be political committees (separate satisfy the major purpose requirement. candidates are substantiated by its segregated funds, local party Please note that the Commission has not actual disbursements in connection committees, principal campaign made any decisions on whether to adopt with a Federal election. committees, and multi-candidate any of the proposals for the major a. Public Pronouncements. For an committees), do not incorporate the test(s). If the Commission were to decide organization’s public pronouncements ‘‘major purpose’’ standard. This is to adopt one or more of the proposed and other communications to because the Commission has major purpose tests, an organization that demonstrate that the organization has a determined that these organizations, by meets any of the major purpose tests major purpose of nominating, electing, their nature or by definition, have as would be considered to have as a major promoting, attacking, supporting, or their major—if not primary—purpose, purpose the nomination or election of opposing clearly identified Federal the nomination or election of Federal candidates. Consequently, if candidates or the Federal candidates of that organization exceeds the $1,000 candidates. a clearly identified political party, the contribution or expenditure threshold in written materials and other For example, current 11 CFR 100.5(b) 11 CFR 100.5(a)(1)(i), it would be a communications must refer to Federal provides that a separate segregated fund political committee and would have to candidates of a clearly identified established under 2 U.S.C. 441b(b)(2)(C) comply with the registration, reporting political party or to a ‘‘clearly identified is a political committee because, and other requirements for political candidate,’’ which is defined in 11 CFR pursuant to 2 U.S.C. 441b(b)(2)(C), a committees. Are the criteria 100.17. Thus, under proposed paragraph separate segregated fund is ‘‘to be appropriate? Would other criteria be (a)(2)(i), an organization would not be utilized for political purposes.’’ 2 U.S.C. more appropriate? considered to have the nomination or 441b(b)(2)(C). Current 11 CFR 100.5(c) election of candidates as a major provides that, under certain 1. Proposed 11 CFR 100.5(a)(2)(i)— Avowed Purpose and Spending purpose where the organization’s public circumstances, the local committee of a communications merely indicate that its political party is a political committee The first of the four proposed major major purpose is to elect candidates because, like national parties, these purpose tests, which is set forth in holding particular positions (e.g., pro- organizations exist for the purpose of proposed section 100.5(a)(2)(i), would business candidates or pro- nominating and electing candidates. See use the organization’s public environmental candidates) without 2 U.S.C. 431(4)(C). Moreover, such pronouncements and spending to specifying which candidates hold those organizations are organized under determine if its major purpose is to positions. Such an organization, section 527 of the Internal Revenue nominate or elect candidates. An however, could still be considered to Code, which requires that these organization would satisfy the major have the nomination or election of organizations be organized and operated purpose element in proposed section candidates as a major purpose under the primarily for the purpose of influencing 100.5(a)(2)(i) if: (1) Its organizational other three major purpose tests— or attempting to influence the documents, solicitations, advertising, proposed paragraphs (a)(2)(ii) through nomination, election or appointment of other similar written materials, public (iv), which are discussed below. individuals to public office. See 26 pronouncements, or any other The Commission seeks comment U.S.C. 527(e); see also discussion of 527 communications demonstrate that its regarding whether it is appropriate to organizations below. Current 11 CFR major purpose is to nominate, elect, base its major purpose analysis on the 100.5(d) and (e)(1) provide that an defeat, promote, attack, support, or written public statements, documents, individual’s principal or authorized oppose a clearly identified candidate or solicitations, and other communications campaign committees are political candidates for Federal office or the by an organization. Are there committees because these organizations Federal candidates of a clearly circumstances where an organization’s are established for the purpose of identified political party; and (2) it written public statements, documents, nominating or electing an individual to disburses more than $10,000 in the solicitations, and other communications public office. See 2 U.S.C. 431(5) and current calendar year or any of the would not be an appropriate measure of (6). Moreover, such organizations are previous four calendar years on the its major purpose? Should the final rule ‘‘under the control of a candidate,’’ and following: (1) Expenditures (including take into account the organization’s oral, therefore are not subject to the major independent expenditures); (2) as well as written, communications to purpose requirement. See Buckley, 424 contributions; (3) payments for types 1 determine if it satisfies the first prong of U.S. at 79. Finally, current 11 CFR through 3 of Federal election activity; the major purpose test in proposed 100.5(e)(3) provides that multi- and (4) payments for all or any part of section 100.5(a)(2)(i)? candidate committees are political an electioneering communication, as The Commission also seeks comment committees because these organizations defined in 11 CFR 100.29. regarding how this provision should make and receive contributions for The first prong of the major purpose operate with respect to disavowed major Federal elections. Consequently, these test in proposed section 100.5(a)(2)(i) purposes or apparently contradictory organizations satisfy the major purpose would rely on an organization’s written statements of the organization’s major test. characterization of its own activities. purposes. For example, what would be
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the outcome if the leader (e.g., proposed paragraph (a)(2)(i). Because electioneering communications toward president, chairperson, etc.) of the this threshold is an absolute dollar the spending threshold? Are there other organization disavows the amount rather than a percentage of total categories or types of disbursements that organization’s previously stated spending, the current year spending should be included, such as purpose? What if this disavowal is would be relevant to the analysis. administrative costs, overhead, and attempted by someone other than the Consequently, this provision, unlike costs associated with volunteer organization’s leader? Should the rules proposed paragraph (a)(2)(ii), would activities? Should certain exceptions be account for the possibility that an apply to both existing and newly included and, if so, how should those organization can disavow its previous established organizations. The exceptions be crafted? For example, statements regarding its major purpose? Commission seeks comment regarding since some Federal election activity by Should there be a time limit on the the use of this time period in proposed non-party organizations might be truly applicability of statements made in the paragraph (a)(2)(i). Should the threshold non-partisan, should the types of voter organization’s communications? For have to be met in all four preceding registration, voter identification, get-out- example, should statements from five years? If the Commission does adopt the-vote, and generic campaign activity years ago be given less weight than more such a four-year look-back provision, captured in the major purpose analysis current statements? Are these concerns would it be fair to implement it prior to be confined to partisan activity? Since alleviated by the second prong of the 2008? the major purpose test envisioned in the major purpose test set forth in proposed The Commission also seeks comment proposed rules uses ‘‘a major purpose to section 100.5(a)(2)(i), which would regarding the proposed $10,000 influence Federal elections’’ test, should require that the organization exceed threshold. The Commission notes that the four types of disbursements be $10,000 in disbursements in connection Congress established a $10,000 subject to an allocation regime similar to with a Federal election? threshold to trigger the reporting those in 11 CFR 106.1 and 106.6, where Similarly, what if some of the requirements for electioneering only the allocable Federal portion organization’s communications indicate communications under 2 U.S.C. 434(f) would count toward the $10,000 that its major purpose is the nomination and 48-hour reporting of independent threshold? or election of candidates, but other expenditures under 2 U.S.C. 434(g)(2). As discussed above with regard to the communications indicate that it has one By establishing these $10,000 proposed amendments to the definition or more other major purposes? How thresholds, Congress indicated that it of ‘‘expenditure,’’ certain Federal should the major purpose of the believed $10,000 in activity to be election activity influences Federal organization be assessed in these significant enough to require reporting elections. Does this justify counting the situations? Should some within 48 hours of the activity. Is it three types of Federal election activity communications or types of appropriate for the Commission to adopt toward the $10,000 disbursement communications be afforded greater a similar threshold to use in the major threshold? McConnell concluded that weight then others when assessing purpose test set forth in proposed ‘‘[w]hile the distinction between ‘‘issue’’ major purpose under this proposed paragraph (a)(2)(i), or is a higher or and express advocacy seemed neat in paragraph? For example, should the lower threshold more appropriate and theory, the two categories of Commission give greater weight to why? advertisements proved functionally statements in the organization’s The Commission also seeks comment identical in important respects.’’ solicitations or in its governing on the proposal to count the following McConnell, 124 S.Ct. at 650. The documents than it gives to potentially types of disbursements toward the Supreme Court went on to explain that self-serving, ambiguous or contradictory $10,000 threshold: (1) Expenditures both types of communications ‘‘were statements by its leaders or its (including independent expenditures); used to advocate the election or defeat members? Should the Commission (2) contributions; (3) payments for types of clearly identified candidates, even consider only the statements it makes in 1 to 3 of Federal election activity; and though the so-called issue ads eschewed its solicitations or in its organizational (4) payments for all or any part of an the use of magic words.’’ Id. documents and ignore statements found electioneering communication, as Nonetheless, since some electioneering elsewhere? Would these concerns be defined in 11 CFR 100.29. Payments for communications (and even some alleviated by the second prong of the Federal election activity would be ‘‘promote, support, attack, or oppose’’ major purpose test set forth in proposed limited to only the first three of the four messages) by certain non-party section 100.5(a)(2)(i), which would types of Federal election activity organizations, such as 501(c) require that the organization exceed described in 11 CFR 100.24(b) because organizations might, be confined to $10,000 in disbursements in connection the fourth type of Federal election advocating action regarding a particular with a Federal election? activity—services provided during any legislative or executive decision, is there b. $10,000 Disbursement Threshold. month by an employee of a State, a need to develop a more focused To satisfy the second prong of the major district, or local committee of a political content analysis for the major purpose purpose test set forth in proposed party who spends more than 25 percent test? McConnell held that it is section 100.5(a)(2)(i), the organization’s of that individual’s compensated time permissible to treat an organization as a disbursements in connection with any during that month on activities in political committee even when the election for Federal office would have to connection with a Federal election— organization makes only independent exceed the $10,000 threshold in the applies only to certain political party expenditures and does not make any current year or any of the previous four committees, which are presumed to contributions to Federal candidates. Id. calendar years. For example, to assess satisfy the major purpose requirement. at 665 n.48. Does this justify counting whether this threshold has been met in The Commission seeks comment independent expenditures toward the 2004, the Commission would examine regarding the types of disbursements spending threshold? the organization’s disbursements in that would count toward the $10,000 2000, 2001, 2002, 2003 and 2004. If it threshold. Is it appropriate to count 2. Proposed 11 CFR 100.5(a)(2)(ii)—50 exceeded the $10,000 threshold in any expenditures (including independent Percent Disbursement Threshold of those years, it would satisfy the expenditures), contributions, Federal The second of the four proposed $10,000 disbursement requirement in election activity (types 1 through 3), and major purpose tests is set forth in
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proposed paragraph (a)(2)(ii). This organization’s spending during the their money on nomination and election paragraph would consider an previous four calendar years, which activities? For example, should an organization to have a major purpose of would cover groups that are active only organization be considered to satisfy the nominating or electing candidates if during presidential election years. major purpose requirement if it spends more than 50 percent of the Should the proposed rule look back only 30 percent of its funds on election- organization’s total annual more years or fewer years? If so, how related activities (i.e., those items that disbursements during any of the many calendar years would it be would count toward the proposed 50 previous four calendar years was spent appropriate to examine? What should be percent threshold) but does not spend on: (1) Expenditures (including the effective date of a rule that looks more than 30 percent on any other independent expenditures); (2) back four years? activity? To apply such a rule, would contributions; (3) payments for types 1 The types of spending that would be the Commission have to adopt through 3 of Federal election activity; counted toward the 50 percent categories of non-election spending so and (4) payments for all or any part of threshold in the major purpose test set that the 70 percent of funds that the an electioneering communication, as forth in proposed paragraph (a)(2)(ii) organization spent on non-election defined in 11 CFR 100.29. would be the same as those that would purposes would not be combined into a The Commission notes that, unlike be counted toward the $10,000 spending single category of ‘‘non-election proposed paragraph (a)(2)(i), this major threshold in proposed paragraph activities,’’ thereby allowing the purpose test does not consider the (a)(2)(i). The Commission seeks organization to avoid political organization’s public pronouncements. comment regarding counting these committee status? If such categories are An organization that exceeds the 50 categories of disbursements toward the required, how should they be crafted? percent threshold would be considered 50 percent threshold. The Commission to have the election or nomination of specifically refers commenters to the 3. Proposed 11 CFR 100.5(a)(2)(iii)— candidates as a major purpose questions and issues raised above with $50,000 Disbursement Threshold regardless of whether or not the respect to counting these categories of The third of the four proposed major organization’s public pronouncements disbursements toward the $10,000 purpose tests, which is set forth in or other communications indicate that it disbursement threshold in proposed proposed paragraph (a)(2)(iii), would has such a major purpose. The paragraph (a)(2)(i). consider an organization to have the Commission seeks comments regarding The Commission also seeks comment nomination or election of Federal whether this major purpose test should on the use of the 50 percent threshold. candidates as a major purpose if it also include consideration of the Is another percentage more appropriate spends more than $50,000 in the current organization’s public pronouncements to assess an organization’s major calendar year or any of the previous four or other communications, as is the case purpose? Should the Commission apply calendar years on the following: (1) in proposed paragraph (a)(2)(i). a 25 percent threshold? Could a very Expenditures (including independent As set forth above, the relevant years large organization that spends less than expenditures); (2) contributions; (3) for proposed paragraph (a)(2)(ii) would 50 percent of its funds on election- payments for types 1 through 3 of be the previous four calendar years. For related disbursements nevertheless have Federal election activity; and (4) example, to apply proposed paragraph a profound effect on Federal elections? payments for all or any part of an (a)(2)(ii) for an organization during the Does this justify the Commission electioneering communication, as year 2004, the relevant years would be adopting a threshold lower than 50 defined in 11 CFR 100.29. When an 2000, 2001, 2002, and 2003. If an percent or would this situation be organization exceeds the $50,000 organization’s election-related spending addressed by absolute dollar thresholds spending threshold, it would satisfy the exceeded the 50 percent threshold in that would be used in proposed major purpose standard. For example, to any of these years, it would be paragraphs (a)(2)(i) and (a)(2)(iii). conclude that an organization has a considered to have the nomination or Should the size of the percentage major purpose of nominating and election of candidates as a major threshold depend upon the electing candidates in 2004, under purpose. Alternatively, should the determination of whether the proposed paragraph (a)(2)(iii), the organization’s election-related spending nomination or election of candidates organization would have to exceed the have to exceed the 50 percent threshold must be the major purpose of the $50,000 threshold in either 2000, 2001, in each of the preceding four years to organization, or must be only a major 2002, 2003 or 2004. The relevant time trigger political committee status? purpose of the organization? If the period in proposed 11 CFR Because an organization’s total annual proper interpretation of the major 100.5(a)(2)(iii) is the current calendar disbursements are typically unknown purpose requirement is that the year or any of the four previous calendar until the end of the year, the current nomination or election of candidates years. Because this threshold is an year spending would not be examined must be the organization’s primary absolute dollar amount instead of a under this proposed major purpose test. purpose, should this proposed 50 percentage of total spending, the current That is why, in the example given percent threshold be the only test for year spending would be relevant to the above, the organization’s spending major purpose adopted by the analysis. Consequently, this provision, during 2004 was not considered. For the Commission in the final rules? In other unlike proposed paragraph (a)(2)(ii) same reason, this proposed provision words, if the nomination or election of would apply to newly established would be inapplicable to newly candidates must be the organization’s organizations. The Commission seeks established organizations that have no most important purpose, perhaps only comment regarding the use of this time spending in any prior years. However, those organizations that spend most period in proposed paragraph (a)(2)(iii). newly established organizations would (i.e., more than 50 percent) of their Would it be more appropriate to require still be subject to the other three funds on the nomination or election of that the threshold be met in each of the proposed major purpose tests, including candidates satisfy the major purpose four preceding calendar years? the $50,000 disbursement threshold in requirement. The Commission seeks comment proposed paragraph (a)(2)(iii). On the other hand, how should the regarding the proposed $50,000 The Commission also seeks comment final rule address organizations that threshold. The Commission notes that it on the proposal to consider the spend a plurality, but not a majority, of uses a $50,000 threshold to determine
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when a political committee is subject to Presidential or Vice Presidential State agency. Such organizations, mandatory electronic filing of its electors.’’ 26 U.S.C. 527(e)(2). because they operate in only one State, financial disclosure statements. See 11 Alternative 2–A provides that all 527 would not be deemed to have a major CFR 104.18(a). Is this an appropriate organizations would be considered to purpose of nominating or electing dollar threshold for triggering major have the nomination or election of Federal candidates solely because they purpose under this proposed test or is candidates as a major purpose, but are 527 organizations. a higher or lower threshold more carves out five exceptions: (1) Any 527 The fifth proposed exception would appropriate and why? Is a higher or organization that is the campaign recognize that 527 organizations lower threshold more appropriate in organization of an individual seeking established solely to influence the certain situations or with respect to nomination, election, appointment or selection, appointment or nomination of particular types of organizations? selection to a non-Federal office; (2) any individuals to non-elective office (e.g., Should the proposed rule incorporate a 527 organization that is organized solely judicial appointments), or the sliding-scale dollar threshold that for the purpose of promoting the nomination or election of candidates for would increase or decrease depending nomination or election of a particular leadership positions within a political upon the size or type of organization, or individual to a non-Federal office; (3) party, should be exempt from this the type of activity in which the any 527 organization that engages in proposed major purpose test because organization engages? How might such nomination and election activities only they appear unlikely to have a major a sliding scale specifically work? Is it with respect to elections in which there purpose of nominating or electing preferable not to have any major is no candidate for Federal office on the candidates to Federal office. purpose criteria based upon a strict ballot; (4) any 527 organization that Organizations that do not satisfy any dollar amount and, if so, how would the operates in only one State and which is of the five exceptions and that receive Commission assess the major purpose of required by the law of that State to file $1,000 in contributions or make $1,000 a newly established organization? financial disclosure reports with a State in expenditures would be Federal agency; and (5) any 527 organization political committees under proposed Like proposed paragraphs (a)(2)(i) and that is organized solely for the purpose section 100.5(a) if they are organized (a)(2)(ii), proposed paragraph (a)(2)(iii) of influencing the selection, under section 527 of the Internal would count the following types of appointment, or nomination of Revenue Code. Should the Commission disbursements toward the spending individuals to non-elective office, or the consider additional exceptions to threshold: (1) Expenditures (including election, selection, nomination or proposed section 100.5(a)(2)(iv) to independent expenditures); (2) appointment of persons to leadership exclude more organizations, or should contributions; (3) payments for types 1 positions within a political party. the Commission conclude that other through 3 of Federal election activity; The first proposed exception would organizations should be treated as and (4) payments for all or any part of recognize that the major purpose of a Federal political committees if they an electioneering communication, as campaign organization for an individual satisfy the $1,000 thresholds in defined in 11 CFR 100.29. The seeking non-Federal office is the proposed section 100.5(a)(1)? Commission seeks comment regarding nomination or election of that The Commission notes that any 527 counting these categories of individual to non-Federal office. organization that falls within one or disbursements toward the $50,000 Consequently, such an organization is more of the exceptions contained in threshold. The Commission specifically not likely to have as a major purpose the Alternative 2–A could nevertheless be refers commenters to the questions and nomination or election of candidates to considered to have a major purpose of issues raised above with respect to Federal office. The second proposed nominating or electing Federal counting these categories of exception would address those candidates under one of the first three disbursements toward the $10,000 organizations that are organized solely major purpose tests, such as by spending threshold in proposed to promote the nomination or election of exceeding the 50 percent threshold set paragraph (a)(2)(i). individuals to non-Federal offices, but forth in proposed paragraph (a)(2)(ii) or 4. Proposed 11 CFR 100.5(a)(2)(iv)—527 do not fall within the first exception the $50,000 spending threshold set forth Organizations because they are not under the control in proposed paragraph (a)(2)(iii). The of that particular non-Federal candidate. Commission seeks comment on whether Proposed 11 CFR 100.5(a)(2)(iv) offers The third and fourth proposed the exceptions contained in Alternative two alternatives for the fourth of the exceptions pertain to State political 2–A are appropriate and whether four proposed major purpose tests. Both organizations. The exception in Alternative 2–A should include alternatives address ‘‘527 proposed section 100.5(a)(2)(iv)(C) additional exceptions. Alternative 2–B, organizations,’’ which are entities would address 527 organizations that in contrast, would provide that all 527 organized under section 527 of the operate only in connection with non- organizations would be considered to Internal Revenue Code, 26 U.S.C. 527. A Federal elections and only in States, have the nomination or election of 527 organization is ‘‘a party, committee, such as Virginia, that hold non-Federal candidates as a major purpose, and does association, fund, or other organization elections in years where there is no not provide for any exceptions. (whether or not incorporated) organized regularly scheduled Federal election The Commission seeks comment and operated primarily for the purpose (i.e., odd-numbered years). Such an regarding whether it is necessary and of directly or indirectly accepting organization, which does not engage in appropriate to mention 527 contributions or making expenditures, activity in connection with any election organizations in the proposed rule, or or both, for an exempt function.’’ 26 for Federal office, is not likely to have whether it would be better to eliminate U.S.C. 527(e)(1). An exempt function is as a major purpose the nomination or the fourth major purpose test and defined as ‘‘the function of influencing election of Federal candidates. The instead subject 527 organizations, like or attempting to influence the selection, exception in proposed section any other organization, to analysis nomination, election, or appointment of 100.5(a)(2)(iv)(D) would address under the first three tests. To the extent any individual to any Federal, State, or organizations that operate in only one that 527 organizations should be local public office or office in a political State and, under State law, must explicitly mentioned in the proposed organization, or the election of disclose their financial activity to a rule, which alternative is more
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appropriate, Alternative 2–A, expenditures in excess of $1,000? In Although not reflected in the Alternative 2–B, or some other Akins v. FEC, 101 F.3d 731 (D.C. Cir. proposed rules, the Commission seeks alternative? 1996), vacated, 524 U.S. 11 (1998), one comment on the proper application of appeals court interpreted Buckley and the major purpose requirement to 5. Other Tax-Exempt Organizations MCFL to require application of the complex organizations that include a The proposed rule does not expressly major purpose test only when political political committee within the mention other tax-exempt organizations, committee status is based upon the organization. For instance, should the such as those organized under section organization’s independent Commission impute major purpose 501(c) of the Internal Revenue Code, expenditures, not when it is based upon across such organizations? Thus, if an because, unlike 527 organizations, these the organization’s other expenditures, organization includes a political organizations could lose their tax- including contributions to political committee, should all other committees exempt status if their primary purpose committees. See Akins, 101 F.3d at 742 or organizations within the complex were to influence elections. Should the (‘‘the Court clearly distinguished organization be deemed to satisfy the final rule state that certain tax-exempt independent expenditures and major purpose test? Or should the organizations, such as those organized contributions as to their constitutional Commission conclude that its current under 501(c)(3) or (c)(4) of the Internal significance, and its references to a affiliation rules at 11 CFR 100.5(g) Revenue Code, will not meet any of the ‘major purpose’ test seem to implicate sufficiently address this issue and no major purpose tests because of the only the former’’). Should the Akins amendments to the regulations are nature of their tax-exempt status, and court’s interpretation be incorporated necessary? exempt them from the definition of into the proposed rule, or should the IV. Conversion of Federally Permissible political committee? Or should the final major purpose requirement apply to Funds to Federal Funds rule not provide an exemption for 501(c) organizations that exceed $1,000 in organizations, recognizing that the expenditures, not just those that exceed The Commission recognizes that there various thresholds in the major purpose $1,000 in independent expenditures may be a need to provide guidance to tests are set high enough that certain exclusively? organizations that become political 501(c) organizations may continue to committees after operating for some conduct incidental or low levels of D. Proper Application of the Major time as a non-political committee election activities without satisfying any Purpose Requirement organization, especially concerning two issues: (1) how the new political of the major purpose tests and triggering The Commission seeks comment political committee status? 7 Would it be committee should demonstrate that the regarding whether the definition of contributions and expenditures that it more appropriate to discard ‘‘a major political committee in 11 CFR 100.5(a) purpose’’ analysis and use instead ‘‘the made prior to becoming a political should include a major purpose test organization were paid for with major purpose’’ analysis for these types along the lines set forth above or of organizations? In this regard, should Federally permissible funds and (2) how whether it should instead incorporate it should treat the funds it has cash-on- the Commission fashion a test whereby the major purpose requirement as an it would recognize three broad hand on the day that it became a exception to the definition of ‘‘political political committee. Consequently, to categories of activity for 501(c) committee.’’ For example, if the major organizations—‘‘election influencing address these issues, this NPRM purpose requirement is incorporated includes proposed subpart A— activity,’’ ‘‘legislative or executive into the definition of political lobbying activity,’’ and ‘‘educational, Organizations that Become Political committee (as it is in the proposed Committees, which would set forth the research, or other activity.’’ If the rules), an organization, regardless of the organization put more resources, either requirements for existing organizations amount of its contributions and that become political committees under financially or timewise, into ‘‘election expenditures, will not be considered to influencing activity’’ than it put into 11 CFR 100.5(a). The proposed rules be a political committee unless it is would not apply to organizations that either of the other two activities, the shown to have a major purpose of major purpose test would be met. register with the Commission as a nominating or electing candidates. This political committee prior to making any C. Treatment of Contributions for the is essentially how the proposed rules contributions, expenditures, Major Purpose Requirement described above would work. An independent expenditures or allocable alternative approach, which is not Should the major purpose expenditures. The proposed rules do not reflected in the proposed rules, would requirement apply when an replace any of the Commission’s be to use the major purpose requirement organization’s status as a political existing rules applicable to political as an exception to the definition of committee is based upon its making in committees. All political committees, political committee. Under this excess of $1,000 in any contributions or including the political committees alternative approach, an organization expenditures, or only when its status as subject to these proposed rules, would would be considered to be a political a political committee is based solely remain subject to all of the committee if its expenditures or upon its making of independent Commission’s rules applicable to contributions exceed the $1,000 political committees. 7 This is especially true for 501(c)(3) threshold unless the organization has a One purpose of the proposed 11 CFR organizations because their communications are major purpose other than nominating or part 102, subpart A is to provide a exempt from the definition of ‘‘electioneering electing candidates. This alternative mechanism for organizations that communications.’’ See 11 CFR 100.29(c)(6). Thus, approach would, to a certain extent, become political committees to convert any disbursements for such communications would not count toward a 501(c)(3)’s major purpose as place the burden on the organization to into Federal funds some or all of the electioneering communications. Furthermore, the show that it does not have a major funds received prior to the time that Supreme Court recognized that the Massachusetts purpose of nominating or electing they became political committees. As Citizens for Life, Inc., a nonprofit corporation, candidates. Would this alternative explained below, a political committee could become a political committee if its independent expenditures become ‘‘so extensive’’ approach reflect the correct reading of could convert these funds into Federal that it satisfies the major purpose requirement. the major purpose requirement as set funds by contacting its recent donor(s), MCFL, 479 U.S. at 262. forth in Buckley, MCFL and other cases? making certain disclosures, and seeking
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the donor(s)’ consent to use the funds expenditures that are allocable under 11 converted to Federal funds under the for the purpose of influencing Federal CFR 106.1 or 106.6. Given that proposed proposed rules. elections. Allowing new political 11 CFR 100.115 would make partisan Consequently, not all of the committees to convert pre-existing voter registration, partisan voter organizations pre-existing funds would funds into Federal funds would achieve identification and partisan get-out-the- be subject to conversion to Federal two goals. First, it would allow political vote activities ‘‘expenditures’’ and that funds under the proposed rules. Only committees to account for contributions some of these activities would be those pre-existing funds that comply and expenditures made before they encompassed by ‘‘generic voter drive’’ with the amount limitations and source became political committees that were and subject to allocation in current prohibitions of the Act (i.e., federally required under the Act and the section 106.6, should the final rules permissible funds) would be subject to Commission’s regulations to be paid for include these types of voter drive conversion to Federal funds. with Federal funds (i.e., funds that activities as ‘‘allocable expenditures?’’ Consequently, funds donated to the comply with the source prohibitions, ‘‘Covered period’’ would be defined organization by a corporation, a labor amount limitations and other as the period of time beginning on organization or foreign national could requirements of the Act). Non-political January 1 of the calendar year not be converted to Federal funds committees are already required to immediately preceding the calendar because these are prohibited sources ‘‘demonstrate through a reasonable year in which the organization first under the Act. See 2 U.S.C. 441b and accounting method that, whenever such satisfies the definition of ‘‘political 441e. Likewise, a political committee an organization makes a contribution or committee’’ in 11 CFR 100.5(a) and would not be able to convert to Federal expenditure, or payment, the ending on the date that the organization funds an entire $20,000 donation to the organization has received sufficient first satisfies the definition of ‘‘political organization from an individual because funds subject to the limitations and committee’’ in 11 CFR 100.5(a). This this amount would exceed the $5,000 prohibitions of the Act to make such covered period is similar to the period limit for individual contributions to contribution, expenditure, or payment.’’ in 2 U.S.C. 434(f)(2)(E) for disclosing non-connected political committees. See 11 CFR 102.5(b)(1). The proposed rules information pertaining to individuals 2 U.S.C. 441a(a)(1)(C). Only the first would provide guidance on the initial who donate $1,000 or more to persons $5,000 of such a donation would be able reporting requirements for non-political who make electioneering to be converted to Federal funds under committees that subsequently become communications. Should the the proposed rule. The remaining political committees but would not Commission adopt a shorter or a longer $15,000 would have to be treated as impose any new requirements on those covered period in the final rule? non-Federal funds. groups that never become political For example, if an organization first B. Proposed 11 CFR 102.51 committees. Second, the proposed rules satisfies the definition of political would, under certain circumstances, Proposed 11 CFR 102.51 provides that committee in 11 CFR 100.5(a) on March subpart A would apply to a committee, allow political committees to transfer to 15, 2004, the covered period for that their Federal account some of the funds club, association, or other group of organization would be January 1, 2003, persons that satisfies the definition of in their possession when they became until March 15, 2004. For an political committees. ‘‘political committee’’ under 11 CFR organization that first became a political The Commission seeks comment 100.5(a) and that made contributions, committee on December 31, 2005, regarding the need for a mechanism for expenditures, independent expenditures political committees to convert funds would have a covered period of January or allocable expenditures during the received prior to becoming a political 1, 2004, until December 31, 2005. covered period. Consequently, the committee into Federal funds. The Consequently, the covered period for proposed rules would apply to any proposed rules, as mentioned above, any organization would be at least one organization that meets the following would apply only to those organizations year, but would be no longer than two two criteria: (1) It satisfies the that, prior to becoming a political years. Commission’s definition of ‘‘political committee, made contributions or ‘‘Federal funds’’ would have the same committee’; and (2) it has made expenditures that were required by the meaning as in 11 CFR 300.2(g). Thus, it expenditures, allocable expenditures or Act and the Commission’s regulations to would mean funds that comply with the allocable disbursements during the be paid for with funds that are subject limitations, prohibitions and reporting covered period. to the amount limitations and source requirements of the Act. C. Proposed 11 CFR 102.52 prohibitions of the Act. Should the ‘‘Federally permissible funds’’ would Commission also provide a mechanism be defined as funds that comply with Proposed 11 CFR 102.52 would set in the final rules for political the amount limitations and source forth the requirements for political committees that, prior to becoming a prohibitions of the Act and were committees that would be subject to political committee, did not make any received during the covered period by proposed subpart A. Proposed disbursements that were required to be the organization becoming a political paragraphs (a) and (b) would remind paid for with funds that are subject to committee. Federally permissible funds these political committees that they are the limitations and prohibitions of the are different from Federal funds required to register with the Act, to convert some or all of its funds because, although both comply with the Commission and to establish a received prior to becoming a political source prohibitions and amount campaign depository. These committee into Federal funds and then limitations of the Act, federally requirements already exist under 11 transfer those converted funds into its permissible funds do not comply with CFR 102.1(d) and 103.2 and would not Federal account? the solicitation and reporting be altered under the proposed rules. requirements of the Act. Moreover, Proposed paragraph (c) would require A. Proposed 11 CFR 102.50 federally permissible funds would be each political committee that would be Proposed 11 CFR 102.50 would set limited to those funds received during subject to proposed subpart A to forth the definitions of four terms used the organization’s covered period. Only determine the amount of expenditures in proposed subpart A. ‘‘Allocable a political committee’s federally and allocable expenditures and expenditures’’ would be defined as permissible funds would be able to be disbursements it made during its
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covered period. Thus, under this Under proposed paragraph (b), a (4) Advise the donor(s) that they may provision, political committees would political committee would not be grant written consent for an amount be required to determine how much of permitted to make any contributions, of federally permissible funds lower its spending in the period of time expenditures, independent expenditures than the amount requested, and that immediately before it became a political or allocable expenditures until the debt they may refuse to grant consent committee was required to have been owed by the Federal account to the non- entirely; and paid for with Federal funds. For Federal account is satisfied. Thus, a (5) Inform the donor(s) that, by granting example, if a disbursement was an political committee would be unable to consent, the donor(s) will be ‘‘expenditure’’ under the Act or the make any disbursements that must be deemed to have made a Commission’s regulations, it would paid for with Federal funds until the contribution to a Federal political count toward this amount. Likewise, if debt is satisfied pursuant to proposed committee, that the contribution is a disbursement was an allocable section 102.53(c). subject to the amount limitations expenditure, it would also go toward Proposed paragraph (c) would provide and source prohibitions of the Act, this amount. two methods for a political committee and that the contribution will be Proposed paragraph (d) would require subject to proposed subpart A to satisfy deemed to have been made on the political committees subject to proposed the debt owed by its Federal account to date that the written consent is subpart A to determine the amount of its non-Federal account. The first signed by the donor(s). federally permissible funds that the method would be for the political Second, the political committee would political committee received during its committee to raise Federal funds and be required to receive the written transfer those funds to its non-Federal covered period. Thus, only donations of consent from the donor(s) within 60 account. The other method would be for $5,000 or less from persons other than days after the political committee first the political committee to convert some corporations, labor organizations, satisfies the definition of ‘‘political or all of its federally permissible funds foreign nationals and other prohibited committee’’ in 11 CFR 100.5. to Federal funds. The proposed rule sources would be counted toward this If the political committee satisfies the would allow the political committee to amount, provided that these donations requirements of proposed 11 CFR satisfy the debt owed by its Federal were received by the organization 102.54, the funds for which it receives account by using either method or both during its covered period. written consent pursuant to proposed methods in combination. Proposed paragraph (e) would require As set forth above, the Commission is paragraph (b) would be considered to be the political committees that would be seeking comment regarding whether converted to Federal funds and may be subject to proposed subpart A to file political committees should be used to satisfy the debt owed by the financial disclosure reports with the permitted to maintain non-Federal Federal account. The Commission notes Commission in accordance with part accounts. How would the conversion to that, under the proposed rules, the 104 of the Commission’s regulations and Federal funds operate if the Commission political committee would need to proposed 11 CFR 102.56. Part 104 of the were to adopt a final rule prohibiting receive the written consent from the Commission’s regulations are the Federal political committees from donor(s) within sixty days after the general reporting requirements maintaining non-Federal accounts? political committee becomes a political applicable to all political committees, committee under 11 CFR 100.5. The including those that also would be E. Proposed 11 CFR 102.54 funds for which the political committee subject to proposed subpart A. Proposed Proposed section 102.54 would set receives written consent from the 11 CFR 102.56 are reporting forth the procedure through which a donor(s) after that date would not be requirements that the Commission political committee that is subject to able to be converted to Federal funds proposes to adopt as part of these proposed subpart A may convert some and used to satisfy the debt owed by the proposed rules. These additional or all of its federally permissible funds Federal account. reporting requirements are discussed in to Federal funds. The proposed rule The Commission seeks comment detail below. would provide a two-step process for a generally regarding the proposed political committee to convert its procedure for converting federally D. Proposed 11 CFR 102.53 federally permissible funds into Federal permissible funds into Federal funds. Proposed 11 CFR 102.53(a) would funds. First, the political committee The written notice requirements under require a political committee subject to would be required to send written proposed section 102.54(a) are designed proposed subpart A to treat the amount notification to the donor(s) of any to serve at least two purposes. First, of expenditures and allocable Federally permissible funds to be they would ensure that the donor(s) are expenditures and disbursements made converted into Federal funds. The fully informed that their donations will during its covered period as debt owed written notification would need to: be or have been used by the political by its Federal account to its non-Federal (1) Inform the donor(s) that the political committee for the purpose of account. For example, if, under committee has registered as a influencing Federal elections and that proposed section 102.52(c), a political Federal political committee; the donor(s) are given a reasonable committee determined that, during its (2) Make all disclaimers required by 11 opportunity to object to such use. covered period, it made $100,000 in CFR 110.11; Second, the disclosures would ensure expenditures and allocable expenditures (3) Inform the donor(s) of the amount of that the donor(s) have adequate and disbursements, its Federal account the federally permissible funds information to comply with the would owe $100,000 to its non-Federal donated by the donor(s) that the contributions limitations of the Act. Are account. Consequently, virtually every political committee seeks to convert any of the requirements for the written political committee that would be to Federal funds and request that notice under proposed paragraph subject to proposed subpart A would, at the donor(s) grant written consent 102.54(a) unnecessary? Should any the time it becomes a political for the political committee to use other requirements be added? Is it committee, have debt owed by its that amount of federally permissible appropriate to require that the donor(s) Federal account to its non-Federal funds for the purpose of influencing grant their consent to the conversion of account. Federal elections; their donated funds in writing? Should
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oral consent, perhaps subject to a hand that the political committee had in committee’s first financial disclosure requirement that the oral consent be its possession at the time it first became report is due under 11 CFR part 104. memorialized in writing, be sufficient? a political committee under 11 CFR Under proposed paragraph (a) a Should the Commission adopt the 60- 100.5(a). political committee that would be day time limit in proposed paragraph For example, if a political committee subject to proposed subpart A would be 102.54(b)? The 60-day time limit is has $50,000 in debt owed by its Federal required to report the amount of designed to ensure that any conversion account and is able to convert $75,000 expenditures and allocable expenditures of Federally permissible funds to of its Federally permissible funds into and disbursements made by the political Federal funds occurs shortly after the Federal funds pursuant to proposed committee during its covered period. political committee achieves political section 102.54, it would be able to This figure would reflect the amount of committee status under 11 CFR 100.5(a). transfer the surplus $25,000 to its debt the political committee’s Federal Limiting the time period for conversion Federal account if it had at least $25,000 account owes to its non-Federal account also will allow for the Commission and cash-on-hand in its possession at the pursuant to proposed section 102.53(a). the public to more easily assess a time it became a political committee. If Under proposed paragraph (b), a political committee’s compliance with the political committee, however, had political committee that would be these proposed rules. Is a time limit only $10,000 of cash-on-hand in its subject to subpart A would be required necessary? Would a time period other possession when it became a political to report the amount of any federally than 60 days be preferable? If so, how committee, it would be able to transfer permissible funds converted to Federal long should the conversion period last? only $10,000 from its non-Federal funds under proposed 11 CFR 102.54. Would it be preferable to adopt an account to its Federal account. If the This figure would reflect the amount of implied consent procedure, whereby the political committee had zero cash-on- converted Federal funds that are political committee would send a hand in its possession when it became available for the political committee to written notification to the donor(s), but a political committee, it would not be satisfy the debt owed by its Federal would not have to wait for the donor(s) permitted to transfer any funds to its account and, possibly, the amount of to affirmatively consent to the Federal account. surplus converted Federal funds that the conversion. Instead, the political The Commission seeks comment political committee may transfer to its committee may consider the donor(s) to regarding whether it is appropriate for Federal account pursuant to proposed have consented to the transfer unless the proposed rules to allow this surplus 11 CFR 102.55(b). and until it receives an affirmative amount to be transferred to a political Proposed paragraph (c) would require objection to the conversion from the committee’s Federal account. Would it a political committee that is subject to donor(s). Such a procedure would be be preferable to limit the conversion proposed subpart A to report the similar to the procedures the procedures only to the amount needed identifying information required under Commission adopted for redesignation by the political committee to satisfy the 11 CFR 104.3(a)(4)(i). This is the and reattribution of certain apparently debt owed by its Federal account? If it contributor information that all political excessive contributions to authorized is advisable for the Commission to allow committees must report to the candidate committees under 11 CFR political committees to convert as much Commission when they receive 110.1(k)(3)(ii)(B) and 11 CFR of their federally permissible funds into contributions. This proposed provision 110.1(b)(5)(ii)(B). Are there reasons that Federal funds as possible, and to is designed to require political the Commission should or should not transfer any surplus to their Federal committees that would be subject to adopt a similar regime to govern account, should the rule limit the subpart A to report this information for conversion of federally permissible amount transferred to the amount of any donation of federally permissible funds to Federal funds in proposed cash-on-hand in the possession of the funds that is converted to Federal funds. subpart A? political committee when it became a Proposed paragraph (d) would require political committee? a political committee to report the F. Proposed 11 CFR 102.55 difference between the amount reported Proposed 11 CFR 102.55 would G. Proposed 11 CFR 102.56 under proposed paragraph (a), which is provide a mechanism for political Proposed section 102.56 would set the amount of debt owed by the political committees to convert an amount of forth the initial reporting requirements committee’s Federal account under Federally permissible funds to Federal for political committees that would be proposed 11 CFR 102.53(a), and the funds that is greater than the amount of subject to proposed subpart A. Under amount reported under proposed debt owed by its Federal account. A proposed section 102.56, political paragraph (b), which is the amount of political committee that successfully committees that would be subject to federally permissible funds converted to converts an amount of federally proposed subpart A would be required Federal funds under proposed 11 CFR permissible funds to Federal funds that to report certain information along with 102.54. Consequently, the amount is greater than the amount of debt owed other required information in the reported pursuant to proposed by its Federal account would be political committee’s first report due paragraph (d) would reflect whether the required to first use the converted funds under 11 CFR 104.5. Thus, political political committee has converted a to satisfy the debt owed by its Federal committees that are subject to proposed sufficient amount of federally account. The surplus converted Federal subpart A are also subject to the permissible funds to Federal funds to funds (i.e., the amount of converted reporting requirements of 11 CFR part allow it to satisfy the debt owed by its federally permissible funds exceeding 104, which apply to all political Federal account. If not, the deficiency the amount of debt owed by the political committees. Proposed section 102.56 would be required to be reported as a committee’s Federal account) may then would merely require a political debt owed by the Federal account. It be transferred to the political committee that would be subject to would also reflect whether the political committee’s Federal account. The proposed subpart A to report certain committee has converted an amount of amount of converted Federal funds additional information related to its federally permissible funds to Federal transferred to the Federal account under compliance with proposed subpart A. funds in excess of the amount of debt this proposed section, however, may be The additional subpart A information owed by the Federal account, thereby no greater than the amount of cash-on- would be due whenever the political possibly permitting the political
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committee to transfer some or all of the and therefore be prohibited from expenditures for partisan voter drives surplus funds to its Federal account allocating any of its disbursements? would be allocable under the ‘‘funds pursuant to proposed 11 CFR 102.55(b). Should any changes to the allocation expended’’ method of proposed 11 CFR Proposed paragraph (e) would require regulations be effective immediately, or 106.6(c). Because ‘‘partisan voter a political committee that would be should their effective date be January 1, drives’’ would be defined as subject to proposed subpart A to report 2005, which is the first day of the year ‘‘expenditures’’ under proposed 11 CFR the amount and date of any transfers to following the completion of the current 100.34 and 100.115, the its Federal account made pursuant to election cycle? Does the Commission communications involved would not be proposed 11 CFR 102.55(b). This would have a legal basis for delaying the limited to those that meet the definition permit the Commission to assess effective date of any final rules it of ‘‘public communication’’ in current whether the political committee adopts? 11 CFR 100.26 through 100.28. complied with the transfer requirements Under the proposed rules in Current 11 CFR 106.1(a)(1) provides under proposed paragraph 102.55(b). Alternative 1–B, separate segregated that the allocation methods in that The Commission seeks comment funds and nonconnected committees section shall be used to allocate regarding these additional reporting would be permitted to allocate expenses payments involving both expenditures requirements that would apply to for partisan voter drives and for on behalf of one or more clearly political committees that would be communications that promote or oppose identified Federal candidates and subject to proposed subpart A. Are any a political party between Federal and disbursements on behalf of one or more of these reporting requirements non-Federal accounts according to the clearly identified non-Federal unnecessary or unduly burdensome? ‘‘funds expended’’ method, which is candidates. Proposed section 106.6(f), Are there additional reporting consistent with the requirements of which is described below, would requirements that the Commission current section 106.6(c) for provide an allocation method similar in should include in the proposed rules? administrative expenses and generic some respects to the ‘‘expected benefit’’ V. Proposed 11 CFR 106.6—Allocation voter drives. The proposal would add a method under current section 106.1. minimum Federal percentage to the Proposed section 106.6(g) would specify Alternative 1–B includes proposed ‘‘funds expended’’ method, and would that public communications that changes to the allocation rules to reflect also clarify the ratio in the ‘‘funds promote, support, attack or oppose a other changes proposed in Alternative expended’’ method by further clearly identified Federal candidate, 1–B and for other purposes. The describing the Federal component of without also promoting or opposing a Commission has not determined that that ratio. Finally, the proposal would political party, would be allocable any changes to its allocation rules are specify an allocation method for under section 106.1 as expenditures or appropriate, and is thus seeking communications that promote both disbursements on behalf of the clearly comment to determine what, if any, candidates and political parties. identified Federal or non-Federal changes are advisable. Although BCRA candidates. Under this approach, the A. Partisan Voter Drives invalidated the Commission’s allocation Commission is not proposing any regime for national party committees The proposal would replace the changes to 11 CFR 106.1(a)(1) and and substituted a different allocation references to ‘‘generic voter drives’’ in instead would rely on the limitations in regime for other political party current 11 CFR 106.6(b)(1)(iii) and proposed section 106.6(b), (c), (f) and (g) committees, it did not address the (2)(iii) with references to ‘‘partisan voter to ensure that all partisan voter drives Commission’s allocation regulations for drives’’ as defined in proposed 11 CFR except those that promote, support, separate segregated funds and 100.34. Political committees are attack, oppose, or expressly advocate a nonconnected committees. Although currently required to allocate the costs clearly identified Federal candidate McConnell criticized aspects of the for ‘‘generic voter drives,’’ which would be subject to allocation under Commission’s allocation regulations include voter drives that urge the section 106.6(c). Comments are sought regarding political party committees, general public to support candidates of on this approach. allocation by nonconnected committees a particular party or associated with a and separate segregated funds was not particular issue, without mentioning a B. Public Communications That before the Supreme Court. McConnell, specific candidate. Under Alternative 1– Promote or Support a Political Party 124 S.Ct. at 660 and 661. Accordingly, B, most ‘‘generic voter drives’’ would be The proposal would also require the Commission seeks comments on considered an allocable expenditure as nonconnected committees and separate whether either BCRA or McConnell a ‘‘partisan voter drive’’ under proposed segregated funds to allocate costs of requires, permits, or prohibits changes 11 CFR 100.34 and 106.6(b)(1)(iii), public communications that promote or to the allocation regulations for separate (2)(iii), and (c). Voter drives that urge oppose a political party, which would segregated funds and nonconnected the general public to register, vote or be expenditures under proposed 11 CFR committees. Does either provide any support candidates associated with a 100.116(b), under the ‘‘funds expended’’ guidance as to how the Commission particular issue would continue to be method in proposed 11 CFR 106.6(c). If should exercise any discretion it may allocable under proposed 11 CFR such a communication also promotes, have in this regard? Given McConnell’s 106.6(b)(1)(iii), (b)(2)(iii), and (c). supports, attacks, or opposes a clearly criticism of the Commission’s prior Partisan voter drives that include any identified Federal candidate, it would allocation rules for political parties, is it communication that promotes, supports, be allocable under proposed 11 CFR appropriate for the regulations to allow attacks, opposes, or expressly advocates 106.6(f), described below. Nonpartisan political committees to have non- a clearly identified Federal candidate voter drives that include a public Federal accounts and to allocate their are expenditures subject to allocation communication would be subject to the disbursements between their Federal under current 11 CFR 106.1, or, if the same allocation regime. A public and non-Federal accounts? If an communication also promotes or communication that promotes or organization’s major purpose is to opposes a political party, the partisan opposes a political party, but that does influence Federal elections, should the voter drive would be allocated under not also promote, support, attack or organization be required to pay for all of proposed 11 CFR 106.6(f), which is oppose a clearly identified Federal its disbursements out of Federal funds described below. In all other instances, candidate, would be allocable under
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proposed 11 CFR 106.6(c), without Governor of New York’s reelection Allocation for Nonconnected regard to references to Federal would be allocable under proposed 11 Committees and Separate Segregated candidates or even express advocacy of CFR 106.6(c). Funds of Partisan Voter Drives That candidates for State office. Thus, a The charts below illustrate the Include a Communication communication that, for example, allocation methods that would be promotes the Republican Party and the required under Alternative 1–B. In the communication,
How is the Federal Can- Does it promote or op- Does it clearly identify a Non-Fed- didate Depicted? pose a political party? eral Candidate? Allocation: citation and method
None NO NO 106.6(c) fund expended. YES 106.6(c) fund expended. YES NO 106.6(c) fund expended. YES 106.6(c) fund expended. Clearly ID’d Candidate NO NO 106.6(c) fund expended. YES 106.6(c) fund expended. YES NO 106.6(c) fund expended. YES 106.6(c) fund expended. PASO’d or Express Advo- NO NO 106.1 = time/space (100% Fed). cacy YES 106.1 = time/space. YES NO 106.6(f) time/space & fund exp. YES 106.6(f) time/space & fund exp.
Allocation for Nonconnected Committees and Separate Segregated Funds of Public Communications and Non-Partisan Voter Drives That Include a Public Communication In the communication,
How is the Federal Can- Does it promote or oppose Does it clearly identify a Non-Fed- didate Depicted? a political party? eral Candidate? Allocation: citation and method
None NO NO N/A YES 106.1 = time/space (100% NF) YES—See partisan voter drive allocation chart. Clearly ID’d candidate NO NO N/A YES 106.1 = time/space YES—See partisan voter drive allocation chart. PASO’d or Express Advo- See partisan voter drive allocation chart. cacy
C. Minimum Federal percentage would require such committees to use the allocation rule could specify that The proposal would add a minimum the greatest percentage applicable to any nonconnected committees and separate Federal percentage to the ‘‘funds of the States in which the committee segregated funds that conduct activities expended’’ allocation method. This conducted such activities for all its in fewer than 10 States must use a minimum would be the same percentage disbursements allocable under proposed minimum Federal percentage of 25 that is applicable to State, district, and 11 CFR 106.6(c). Alternative 3–B would percent, while those that do so in 10 or local political party committees’ permit such committees to allocate such more States would face a minimum allocation of voter drives under current costs on a State-by-State basis according Federal percentage of 50 percent. The 25 11 CFR 106.7(d)(3). It varies with the to the percentage applicable in each percent figure was chosen as the average Federal offices that appear on a State. Under Alternative 3–B, a of the four percentages in current 11 particular State’s ballot, ranging from committee could choose to simplify its CFR 106.7(d)(3), and the 50 percent 15%, in election years in which a State allocation by using the highest figure was chosen to reflect the broader votes for candidates for the United applicable percentage to avoid the scope of activities and as a slight States House of Representatives only, to complications of a State-by-State reduction to the 60 percent or 65 36%, in election years in which a State allocation. percent applicable to national party votes for president and a senator as The Commission is considering other committees under previous 11 CFR well. See current 11 CFR 106.7(d)(3)(i) minimum Federal percentages as 106.5(b)(2), prior to its sunset on through (iv). Related changes to alternatives to those presented in the December 31, 2002. See 11 CFR reporting requirements are also proposed rules. Should the rules in 11 106.5(h)(2003). If the final rule should proposed for 11 CFR 104.10. CFR 106.6 apply different minimum take such an approach, what should the For nonconnected committees and Federal percentages than those for State, minimum Federal percentages be? separate segregated funds that conduct district and local political party D. Clarifying the Ratio in the ‘‘Funds partisan voter drives, or engage in other committees? Should the Commission Expended’’ Method activities subject to the ‘‘funds adopt a fixed minimum Federal expended’’ allocation method, in more percentage? Should it select a higher The ‘‘funds expended’’ allocation than one State, two alternative proposed minimum for committees that conduct method provides that expenses are rules are presented. Alternative 3–A activities in several States? For example, allocated between the Federal and non-
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Federal accounts of a nonconnected F. Public Communications That committee. The Commission believes, committee or a separate segregated fund Promote a Federal Candidate, Without however, that most of the organizations based on the ratio of Federal Promoting or Opposing a Political Party that would be affected by the proposed expenditures to total Federal and non- Proposed section 106.6(g) would rule are ‘‘political organizations’’ Federal disbursements made by the specify that public communications that organized under section 527 of the Internal Revenue Code. Under the North committee during the two-year Federal promote, support, attack or oppose a American Industry Classification election cycle. Current section clearly identified Federal candidate System (‘‘NAICS’’), political 106.6(c)(1) specifies that: ‘‘In calculating without promoting or opposing a organizations are considered to be its federal expenditures, the committee political party by a nonconnected ‘‘small entities’’ if they have less than $6 shall include only amounts contributed committee or separate segregated fund million in average annual receipts. The to or otherwise spent on behalf of would be allocable under current Commission estimates that all but a few specific federal candidates.’’ The section 106.1. Nonpartisan voter drives of the 527 organizations that may be proposal would clarify that ‘‘amounts that include a public communication affected by the proposed rules, if * * * spent on behalf of specific with similar content would be subject to adopted, have less than $6 million in Federal candidates’’ includes the same allocation requirements. The average annual receipts and, therefore, independent expenditures and amounts only other expenditures or qualify as small entities under the spent on public communications that disbursements by a nonconnected NAICS. promote, support, attack, support, or committee or separate segregated fund The Commission notes that a number oppose a clearly identified Federal for a public communication or voter of these political organizations are candidate. See proposed 11 CFR drive that would be allocable under already registered with the Commission 106.6(c)(1)(i). This proposal reflects the current section 106.1 would involve as political committees and therefore, Commission’s application of current communications that clearly identify would not be affected by the proposed regulations in a recent Advisory non-Federal candidates, but do not change to the definition of political Opinion. See AO 2003–37, at 4 n.5. The promote, support, attack, oppose, or committee. The proposed rule also Commission seeks comment on whether expressly advocate a Federal candidate. includes various exceptions. For the conclusion in this Advisory Opinion Certification of No Effect Pursuant to 5 example, the proposed rule would only should be expressly stated in proposed U.S.C. 605(b) (Regulatory Flexibility affect those political organizations that: 11 CFR 106.6(c)(1)(i). Act) (1) Meet the ‘‘major purpose’’ test set forth in proposed section 100.5(a)(2) of E. Public Communications That When an agency issues certain the proposed rule; and (2) exceed the Promote a Political Party and a Federal rulemaking proposals, the Regulatory $1,000 expenditure and disbursement Candidate Flexibility Act (‘‘RFA’’) requires the thresholds set forth in proposed section agency to ‘‘prepare and make available 100.5(a)(1) of the proposed rule. Proposed section 106.6(f) would for public comment an initial regulatory specify an allocation method for public Moreover, the proposed rule would flexibility analysis’’ which will describe exempt from political committee status communications that promote or oppose the impact of the proposed rule on small a political party and promote, support, those political organizations that are entities. 5 U.S.C. 603(a). Section 605 of involved primarily in state, as opposed attack or oppose a clearly identified the RFA allows an agency to certify a to Federal, political activity. Federal candidate. This method would rule, in lieu of preparing an initial Consequently, while it is difficult for apply to this communication whether or regulatory flexibility analysis, if the the Commission to estimate precisely not the communications also clearly proposed rulemaking is not expected to the number of organizations that would identify a non-Federal candidate. have a significant economic impact on be affected by the proposed rule, the Proposed section 106.6(f) would a substantial number of small entities. Commission believes that, as a result of provide an allocation method that Political Committees the exceptions described above, the combines the ‘‘time and space’’ method proposed rule would not have an and the ‘‘funds expended’’ method for One part of the proposed rule would economic effect on a substantial number communications that support Federal amend the Commission’s definition of of the small entities. candidates and a political party. The ‘‘political committee.’’ Under the Furthermore, the Commission does communication would first be subject to Federal Election Campaign Act of 1971, not believe that the proposed rule, if a ‘‘time and space’’ analysis to split the as amended, and the Commission’s adopted, will have a significant communication among the candidates regulations, political committees have economic impact on those small entities and the political party. The portions certain reporting obligations that do not that would be affected. As stated above, attributed to candidates would be apply to non-political committees. the effect of the proposed rule would be allocated to either the Federal or non- Moreover, there are restrictions and to impose certain reporting limitations on the receipt of funds by Federal accounts based on the requirements and restrictions on political committees that do not apply candidates’ status. The portion funding certain activities upon those to non-political committees. This part of attributed to the political party would political organizations that would the proposed rule would directly affect be allocated under the ‘‘funds become political committees under the only those organizations that are not amended definition of ‘‘political expended’’ method in proposed 11 CFR currently political committees, but committee.’’ 106.6(c). would fall within the amended The reporting requirements, however, This approach would be consistent definition of ‘‘political committee’’ in are not complicated and would not be with the Commission’s analysis and the proposed rule, if the Commission costly to complete. For the most part, conclusions based on the application of decides to amend the definition. the reports would be filed current regulations in a recent Advisory It is difficult for the Commission to electronically, using free software Opinion. See AO 2003–37, at 12. Should estimate the number of organizations provided by the Commission. The the Commission expressly incorporate that may be affected by the proposed Commission also provides free technical this result in its allocation regulations? change in the definition of political support and free access to the
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Commission’s Information Specialists to described above, including the excess of $1,000 during a calendar year; assist political committees in submitting possibility of not making any changes to and the reports. It is highly unlikely that a the definition of ‘‘expenditure’’ and the (ii) For which the nomination or political committee would need to hire allocation rules. election of one or more Federal additional staff or retain professional candidates is a major purpose. Certification services to comply with the reporting Alternative 1–A requirements. For the foregoing reasons, the The Commission also notes that the Commission hereby certifies that this (iii) For purposes of paragraph (a)(1)(i) Act and the Commission’s regulations proposed rule would not have a of this section only, the term do not place any limit on the amount of significant economic impact on a expenditure shall include payments for funds that a political committee would substantial number of small entities. Federal election activities described in be permitted to spend. The proposed The Commission invites comment from 11 CFR 100.24(b)(1) through (b)(3) and rule would merely limit the types of members of the public who believe that payments for all or any part of an funds that may be used to pay for the proposed rule will have a significant electioneering communication as certain activities, which are essentially economic impact on a substantial defined in 11 CFR 100.29. those activities that fall within the number of small entities. End of Alternative 1–A. For definition of ‘‘expenditure.’’ Political Alternative 1–B, see 11 CFR 100.34 to committees are, and will remain, free to List of Subjects 114.4. (2) For purposes of paragraph (a)(1) of spend unlimited funds on those 11 CFR Part 100 activities that do not fall within the this section, a committee, club, definition of expenditure. Moreover, the Elections. association or group of persons has the nomination or election of a candidate or Commission is considering alternatives 11 CFR Part 102 that would have even less of an impact candidates as a major purpose if it than those described above, including Political committees and parties, satisfies the conditions set forth in the possibility of not making any Reporting and recordkeeping paragraph (a)(2)(i), (a)(2)(ii), (a)(2)(iii), or changes to the definition of ‘‘political requirements. (a)(2)(iv) of this section. (i) The organizational documents, committee.’’ 11 CFR Part 104 solicitations, advertising, other similar Expenditures and Allocation Campaign funds, Political committees written materials, public The proposed rule would also amend and parties, Reporting and pronouncements, or any other the Commission’s definition of recordkeeping requirements. communication of the committee, club, association or group of persons ‘‘expenditure’’ to include payments for 11 CFR Part 106 activities that are not expressly included demonstrate that its major purpose is to in the Commission’s existing definition Campaign funds, Reporting and nominate, elect, defeat, promote, of expenditure. Whether a disbursement recordkeeping requirements. support, attack or oppose a clearly identified candidate or candidates for qualifies as an ‘‘expenditure’’ 11 CFR Part 114 determines whether the disbursement Federal office or the Federal candidates must be paid for with Federal funds or Business and industry, Elections, of a clearly identified political party; may be paid for with non-Federal funds. Labor. and during the current calendar year or It also impacts whether an organization For the reasons set out in the during any of the previous four calendar satisfies the $1,000 expenditure preamble, it is proposed to amend years, the committee, club, association threshold for political committee status. subchapter A of chapter I of title 11 of or group of persons makes more than The proposed rule would also revise the the Code of Federal Regulations as $10,000 total disbursements composed Commission’s rules regarding the follows: of any combination of the following: allocation of certain disbursements (A) Contributions; between a political committee’s Federal PART 100—SCOPE AND DEFINITIONS (B) Expenditures (including account and non-Federal account. (2 U.S.C. 431) independent expenditures); Consequently, these parts of the (C) Payments for Federal election 1. The authority citation for part 100 activities described in 11 CFR proposed rule could impact any would continue to read as follows: organization or individual that engages 100.24(b)(1) through (b)(3); and (D) Payments for all or any part of an in activities in connection with a Authority: 2 U.S.C. 431, 434 and 438(a)(8). electioneering communication as Federal election. 2. Section 100.5 would be amended defined in 11 CFR 100.29. As explained above with respect to by revising the introductory paragraph (ii) More than 50 percent of the the proposed amendment of the and paragraph (a) to read as follows: committee’s, club’s association’s or definition of ‘‘political committee,’’ the group’s total annual disbursements proposed changes are unlikely to have § 100.5 Political committee (2 U.S.C. 431 (4), (5), (6)). during any of the previous four calendar a significant economic impact on small years are composed of any combination Political Committee means any group entities. Neither the proposed change in of the following: the definition of ‘‘expenditure’’ nor the meeting the conditions set forth in (A) Contributions; proposed change in the allocation rules paragraph (a), (b), (c), (d) or (e) of this (B) Expenditures (including would limit the amount of money that section. independent expenditures); may be raised or spent on electoral (a)(1) Except as provided in (C) Payments for Federal election activity. The proposed rules would paragraphs (b), (c), (d), (e)(1), and (e)(3) activities described in 11 CFR merely require that only funds raised in of this section, political committee 100.24(b)(1) through (b)(3); and accordance with the Act may be spent means any committee, club, association, (D) Payments for all or any part of an in connection with Federal elections. or other group of persons: electioneering communication as Moreover, the Commission is (i) That receives contributions defined in 11 CFR 100.29. considering alternatives that would aggregating in excess of $1,000 or that (iii) During the current calendar year have even less of an impact than those makes expenditures aggregating in or during any of the previous four
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calendar years, the committee, club, (b) Voter identification as described in (b) No effort is or has been made to association or group of persons makes 11 CFR 100.24(a)(1), (a)(4), and (b)(2)(i), determine the party or candidate more than $50,000 in total except for voter identification when no preference of individuals before disbursements composed of any effort has been or will be made to encouraging them to register to vote or combination of the following: determine or record the party or to vote; and (A) Contributions; candidate preference of individuals on (c) Information concerning likely (B) Expenditures (including the voter list; and party or candidate preference has not independent expenditures); (c) Get-out-the-vote activity as been used to determine which (C) Payments for Federal election described in 11 CFR 100.24(a)(1), (a)(3), individuals to encourage to register to activities described in 11 CFR and (b)(2)(iii), except for get-out-the- vote or to vote. 100.24(b)(1) through (b)(3); and vote activity described in 11 CFR (d) Corporations and labor (D) Payments for all or any part of an 100.133. organizations that engage in such electioneering communication as 4. Section 100.57 would be added to activity shall comply with the defined in 11 CFR 100.29. subpart B to read as follows: additional requirements set forth in 11 CFR 114.4(c) and (d). See also 11 CFR Alternative 2–A § 100.57 Solicitations with express 114.3(c)(4). (iv) The committee, club, association advocacy. 8. Section 100.149 would be amended or group of persons is organized under A gift, subscription, loan, advance, or by revising the introductory paragraph Section 527 of the Internal Revenue deposit of money or anything of value to read as follows: Code, 26 U.S.C. 527, except that this made by any person in response to any paragraph (a)(2)(iv) shall not apply to: communication that includes material § 100.149 Voter registration and get-out- (A) The campaign organization of an expressly advocating, as defined in 11 the-vote activities for Presidential individual seeking nomination, election, CFR 100.22, a clearly identified Federal candidates (‘‘coattails’’ exception). appointment or selection to a non- candidate is a contribution to the person Notwithstanding 11 CFR 100.115, the Federal office; making the communication. payment by a State or local committee (B) A committee, club, association or 5. Section 100.115 would be added to of a political party of the costs of voter group of persons that is organized solely subpart D to read as follows: registration and get-out-the-vote for the purpose of promoting the activities conducted by such committee nomination or election of a candidate or § 100.115 Partisan voter drives. on behalf of the Presidential and Vice candidates to a non-Federal office; A payment, distribution, loan, Presidential nominee(s) of that party is (C) A committee, club, association or advance, or deposit of money or not an expenditure for the purpose of group of persons whose election or anything of value made by, or on behalf influencing the election of such nomination activities relate solely to of any person for partisan voter drives, candidate(s) provided that the following elections where no candidate for as described in 11 CFR 100.34, is an conditions are met: Federal office appears on the ballot; expenditure, except Levin funds, as * * * * * (D) A committee, club, association, or defined in 11 CFR 300.2(i), that are group of persons that operates solely 9. Section 100.155 would be added to disbursed for partisan voter drives are read as follows: within one State and, pursuant to State not expenditures. law, must file financial disclosure 6. Section 100.116 would be added to § 100.155 Allocated amounts. reports with one or more branches, subpart D to read as follows: Notwithstanding 11 CFR 100.115 or departments or agencies of that State’s § 100.116 Certain public communications. 100.116, any non-Federal funds government, showing all its activities in disbursed by a separate segregated fund A payment, distribution, loan, that State; or pursuant to 11 CFR 106.6(b)(1)(iii) (E) A committee, club, association, or advance, or deposit of money or through (vi) or by a nonconnected group of persons that is organized solely anything of value made by, or on behalf committee pursuant to 11 CFR for the purpose of influencing the of any person for a public 106.6(b)(2)(iii) through (vi) are not nomination or appointment of communication, as defined in 11 CFR expenditures. individuals to a non-elected office, or 100.26, is an expenditure if the public the nomination, election, or selection of communication: PART 102—REGISTRATION, individuals to leadership positions (a) Refers to a clearly identified ORGANIZATION, AND within a political party. candidate for Federal office, and RECORDKEEPING BY POLITICAL promotes or supports, or attacks or Alternative 2–B COMMITTEES (2 U.S.C. 433) opposes any candidate for Federal (iv) The committee, club, association office; or 10. The authority citation for part 102 or group of persons is organized under (b) Promotes or opposes any political would continue to read as follows: Section 527 of the Internal Revenue party. Authority: 2 U.S.C. 432, 433, 434(a)(11), Code, 26 U.S.C. 527. 7. Section 100.133 would be revised 438(a)(8), 441d. * * * * * to read as follows: 11. Sections 102.18 through 102.49 Alternative 1–B § 100.133 Nonpartisan voter registration would be added and reserved. and get-out-the-vote activities. 3. Section 100.34 would be added to 12. Subpart A would be added to read read as follows: Any cost incurred for activity as follows: designed to encourage individuals to Subpart A—Conversion Rules § 100.34 Partisan voter drives. register to vote or to vote is not an expenditure if: Sec. Partisan voter drive means any or all 102.50 What are the definitions for this of the following: (a) It does not include a subpart A? (a) Voter registration activity as communication that promotes, supports, 102.51 To which organizations does this described in 11 CFR 100.24(a)(2) and attacks, or opposes a Federal or non- subpart A apply? (b)(1), except for voter registration Federal candidate or that promotes or 102.52 What must a committee, club, activity described in 11 CFR 100.133; opposes a political party; association, or other group of persons do
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upon becoming a political committee (b) Establish a campaign depository donation for the purpose of influencing under 11 CFR 100.5(a)? pursuant to 11 CFR 103.2; Federal elections; 102.53 How must a new political committee (c) Determine the amount of (4) Advise the donor(s) that they may treat the amount of contributions, contributions, expenditures, expenditures, independent expenditures grant written consent for an amount less and allocable expenditures that it made independent expenditures and allocable than the amount the political committee during the covered period (before it expenditures that it made during the seeks to convert to Federal funds and became a political committee)? covered period; that they may refuse to grant consent to 102.54 How can a political committee (d) Determine the amount of federally convert any of the funds; and convert its Federally permissible funds permissible funds that it received; and (5) Advise the donor(s) that, by to Federal funds? (e) File financial disclosure reports granting written consent, the donor(s) 102.55 What if the political committee is with the Commission in accordance will be considered to have made a able to convert an amount of Federally with 11 CFR part 104 and 11 CFR permissible funds to Federal funds that contribution to the political committee, is greater than the amount of 102.56. that the contribution will be subject to contributions, expenditures, § 102.53 How must a new political the amount limitations in 2 U.S.C. independent expenditures and allocable committee treat the amount of 441a(a), and that the contribution will expenditures that it made during the contributions, expenditures, independent be considered made on the date that the covered period? expenditures and allocable expenditures written consent is signed by the 102.56 What are the initial reporting that it made during the covered period requirements? donor(s); and (before it became a political committee)? (b) Receive the written consent Subpart A—Conversion Rules (a) A political committee must treat described in paragraph (a) of this the amount of contributions, section within 60 days after first § 102.50 What are the definitions for this expenditures, independent satisfying the definition of ‘‘political subpart A? expenditures, and allocable committee’’ in 11 CFR 100.5(a). For purposes of this subpart A, the expenditures that it made during the following terms are defined as follows: covered period as a debt owed by its § 102.55 What if the political committee is able to convert an amount of Federally Allocable expenditures mean Federal account to its non-Federal expenditures that are allocable under 11 permissible funds to Federal funds that is account. greater than the amount of contributions, CFR 106.1 or 106.6. (b) The political committee may not Covered period means the period of expenditures, independent expenditures make any additional contributions, and allocable expenditures that it made time beginning on January 1 of the expenditures, independent expenditures during the covered period? calendar year immediately preceding or allocable expenditures until this debt If the political committee is able to the calendar year in which a committee, is satisfied. club, association, or other group of convert an amount of Federally (c) The political committee may permissible funds to Federal funds that persons first satisfies the definition of satisfy this debt by: ‘‘political committee’’ in 11 CFR is greater than the amount of (1) Converting some or all of its contributions, expenditures, 100.5(a) and ending on the date that the Federally permissible funds to Federal committee, club, association, or other independent expenditures, and funds pursuant to this subpart A; allocable expenditures that it made group of persons first satisfies the (2) Raising new Federal funds and definition of ‘‘political committee’’ in 11 during the covered period, the political transferring the Federal funds to the committee: CFR 100.5(a). non-Federal account; or (a) Must use the converted Federal Federal funds has the same meaning (3) A combination of paragraphs (c)(1) funds to satisfy the debt described in 11 as in 11 CFR 300.2(g). and (c)(2) of this section. Federally permissible funds mean CFR 102.53; and funds that comply with the amount § 102.54 How can a political committee (b) May, but is not required to, limitations and source prohibitions of convert its Federally permissible funds to transfer to its Federal account the the Act and were received during the Federal funds? remaining converted Federal funds. The covered period by the committee, club, A political committee may convert its amount of converted Federal funds association, or other group of persons Federally permissible funds to Federal transferred to the political committee’s that becomes a political committee. funds only in accordance with this Federal account under this section, section. To convert Federally however, may not exceed the total § 102.51 To which organizations does this subpart A apply? permissible funds to Federal funds, the amount of funds the political committee political committee shall: had cash-on-hand on the date that it This subpart A applies to a (a) Send a written notification to the first satisfied the definition of political committee, club, association, or other donor(s) of the Federally permissible committee under 11 CFR 100.5(a). group of persons that satisfies the funds that the political committee seeks definition of ‘‘political committee’’ to convert to Federal funds. The written § 102.56 What are the initial reporting under 11 CFR 100.5(a) and that made requirements? notification must: contributions, expenditures, (1) Inform the donor(s) that the In addition to filing its Statement of independent expenditures, or allocable political committee has registered with Organization under 11 CFR 102.2, the expenditures during the covered period. the Commission as a Federal political political committee shall include the § 102.52 What must a committee, club, committee; following information along with other association, or other group of persons do (2) Make all disclaimers required by required information in the first report upon becoming a political committee under 11 CFR 110.11; due under 11 CFR 104.5: 11 CFR 100.5? (3) Inform the donor(s) of the amount (a) All contributions, expenditures, The committee, club, association, or of their donation that the political independent expenditures and allocable other group of persons, upon becoming committee seeks to convert to Federal expenditures it made during the covered a political committee shall: funds and request that the donor(s) period; (a) File a Statement of Organization grant written consent for the political (b) The amount of any Federally pursuant to 11 CFR 102.1(d); committee to use that amount of their permissible funds that have been
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converted to Federal funds pursuant to PART 106—ALLOCATIONS OF not promote, support, attack, or oppose 11 CFR 102.54; CANDIDATE AND COMMITTEE a clearly identified Federal candidate, as (c) The information required in 11 ACTIVITIES described in 11 CFR 100.116(a); CFR 104.3(a)(4)(i) for each donor who (v) Public communications that provided written consent under 11 CFR 15. The authority citation for part 106 promote, support, attack, or oppose a 102.54; would continue to read as follows: clearly identified Federal candidate, as (d) The amount described in Authority: 2 U.S.C. 438(a)(8), 441a(b), described in 11 CFR 100.116(a), and that paragraph (a) of this section minus the 441a(g). promote or oppose a political party, as amount described in paragraph (b) of 16. Section 106.6 would be amended described in 11 CFR 100.116(b); and this section as a debt owed by the by: (vi) Public communications that Federal account to the non-Federal a. Removing the words ‘‘(c) and (d)’’ promote, support, attack, or oppose a account; and from paragraph (a) and adding in their clearly identified Federal candidate, as (e) The amount and date of any place the words ‘‘(c), (d), (f) and (g)’’; described in 11 CFR 100.116(a), but that transfers made under 11 CFR 102.55. and do not promote or oppose a political b. Revising the introductory text in party, as described in 11 CFR PART 104—REPORTS BY POLITICAL paragraph (c) and paragraphs (b)(1)(iii), 100.116(b). COMMITTEES (2 U.S.C. 434) (c) Method for allocating (b)(2)(iii), (c)(1), and (e)(2)(ii)(B) and administrative expenses, costs of adding paragraphs (b)(1)(iv), (b)(1)(v), 13. The authority citation for part 104 partisan voter drives, and certain public (b)(1)(vi), (b)(2)(iv), (b)(2)(v), (b)(2)(vi), would continue to read as follows: communications. Nonconnected (f) and (g) to read as follows: Authority: 2 U.S.C. 431(1), 431(8), 431(9), committees and separate segregated 432(i), 434, 438(a)(8) and (b), 439a, and 441a. § 106.6 Allocation of expenses between funds shall allocate their administrative 14. Section 104.10 would be amended Federal and non-Federal activities by expenses, costs of partisan voter drives, by revising the introductory text in separate segregated funds and and costs of public communications that paragraph (b), the heading in (b)(1), and nonconnected committees. promote or support any political party paragraph (b)(1)(i) and the introductory * * * * * as described in paragraph (b)(1)(i) text in paragraph (b)(1)(ii) to read as (b) * * * through (iv) or (b)(2)(i) through (iv) of follows: (1) * * * this section, according to the funds (iii) Partisan voter drives as described expended method, described in § 104.10 Reporting by separate segregated in 11 CFR 100.34 or any other activities paragraphs (c)(1) and (2) as follows: funds and nonconnected committees of that urge the general public to register, (1)(i) Under this method, expenses expenses allocated among candidates and vote or support candidates of a shall be allocated based on the ratio of activities. particular party or associated with a Federal expenditures to total Federal * * * * * particular issue, without including a and non-Federal disbursements made by (b) Expenses allocated among public communication that is described the committee during the two-year activities. A political committee that is in paragraph (b)(1)(iv), (v), or (vi) of this Federal election cycle, subject to the a separate segregated fund or a section; minimum Federal percentage described nonconnected committee and that has (iv) Public communications that in paragraph (c)(1)(ii) of this section. established separate Federal and non- promote or oppose a political party, as This ratio shall be estimated and Federal accounts under 11 CFR described in 11 CFR 100.116(b), but do reported at the beginning of each 102.5(a)(1)(i) shall allocate between not promote, support, attack, or oppose Federal election cycle, based upon the those accounts its administrative a clearly identified Federal candidate, as committee’s Federal and non-Federal expenses and its costs for fundraising described in 11 CFR 100.116(a); disbursements in a prior comparable and partisan voter drives according to (v) Public communications that Federal election cycle or upon the 11 CFR 106.6, and shall report those promote, support, attack, or oppose a committee’s reasonable prediction of its allocations according to paragraphs clearly identified Federal candidate, as disbursements for the coming two years. (b)(1) through (5) of this section, as described in 11 CFR 100.116(a), and that In calculating its Federal expenditures, follows: promote or oppose a political party, as the committee shall include only (1) Reporting of allocation of described in 11 CFR 100.116(b); and amounts contributed to or otherwise administrative expenses and costs of (vi) Public communications that spent on behalf of specific Federal partisan voter drives. promote, support, attack, or oppose a candidates, including independent (i) In the first report in a calendar year clearly identified Federal candidate, as expenditures and amounts spent on disclosing a disbursement for described in 11 CFR 100.116(a), but that public communications that promote, administrative expenses or partisan do not promote or oppose a political attack, support, or oppose clearly voter drives, as described in 11 CFR party, as described in 11 CFR identified Federal candidates. 106.6(b), the committee shall state the 100.116(b). Calculation of total Federal and non- allocation ratio to be applied to these (2) * * * Federal disbursements shall also be categories of activity according to 11 (iii) Partisan voter drives as described limited to disbursements for specific CFR 106.6(c), (f), or (g), as applicable, in 11 CFR 100.34 or any other activities candidates, and shall not include and the manner in which it was derived. that urge the general public to register, overhead or other generic costs. The committee shall also state whether vote or support candidates of a (ii) Minimum Federal percentage for the calculated ratio or the minimum particular party or associated with a administrative expenses, partisan voter Federal percentage required by 11 CFR particular issue, without including a drives, and certain public 106.6(c)(1)(ii) will be used. public communication that is described communications. The minimum Federal (ii) In each subsequent report in the in paragraph (b)(2)(iv), (v), or (vi) of this percentage for any costs allocable under calendar year itemizing an allocated section; paragraph (c) of this section is as disbursement for administrative (iv) Public communications that follows: expenses or partisan voter drives: promote or oppose a political party, as (A) For a nonconnected committee or * * * * * described in 11 CFR 100.116(b), but do a separate segregated fund that conducts
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partisan voter drives in or distributes oppose a political party. Nonconnected § 114.4 Disbursements for public communications subject to committees and separate segregated communications beyond the restricted allocation under paragraph (c) of this funds shall allocate public class in connection with a Federal election. section to only one State, the minimum communications described in * * * * * Federal percentage shall be the paragraphs (b)(1)(v) or (b)(2)(v) of this (c) * * * percentage in 11 CFR 106.7(d)(3)(i), (ii), section as follows: (2) Registration and voting (iii), or (iv) that is applicable to the (1) The public communication shall communications. A corporation or labor Federal elections in that State. be attributed according to the organization may make registration and get-out-the-vote communications to the Alternative 3–A proportion of space and time devoted to each candidate and political party as general public, only to the extent (B) For a nonconnected committee or compared to the total space and time permitted by 11 CFR 100.133, and a separate segregated fund that conducts devoted to all candidates and political provided that the communications do partisan voter drives in or distributes party; not expressly advocate the election or public communications subject to (2) The portion of the public defeat of any clearly identified allocation under paragraph (c) of this communication that is attributed to the candidate(s) or candidates of a clearly section to more than one State, the Federal candidate(s) shall be allocated identified political party. The minimum Federal percentage shall be to the nonconnected committee’s or preparation and distribution of the greatest percentage in 11 CFR separate segregated fund’s Federal registration and get-out-the-vote 106.7(d)(3)(i), (ii), (iii), or (iv) that is account; communications shall not be applicable to any of the Federal coordinated with any candidate(s) or (3) The portion of the public elections in any of the States in which political party. A corporation or labor communication that is attributed to the the nonconnected committee or separate organization may make communications political party shall be allocated in segregated fund conducts activities permitted under this section through accordance with paragraph (c) of this allocable under paragraph (c) of this posters, billboards, broadcasting media, section; and section. newspapers, newsletter, brochures, or (4) The portion of the public Alternative 3–B similar means of communication with communication that is attributed to the general public. (B) For a nonconnected committee or clearly identified non-Federal (3) Official registration and voting a separate segregated fund that conducts candidate(s), if any, may be allocated to information. A corporation or labor partisan voter drives in or distributes either the Federal or non-Federal organization may engage in the public communications subject to account. activities described in paragraphs allocation under paragraph (c) of this (g) Method for allocating public (c)(3)(i) through (iii) of this section only section to more than one State, the communications that promote, support, to the extent permitted by 11 CFR minimum Federal percentage for each attack or oppose a clearly identified 100.133. State in which the nonconnected Federal candidate, without promoting or * * * * * committee or separate segregated fund opposing a political party. (d) Registration and get-out-the-vote conducts activities allocable under Nonconnected committees and separate drives. A corporation or labor paragraph (c) of this section shall be the segregated funds shall allocate public organization may support or conduct percentage in 11 CFR 106.7(d)(3)(i), (ii), communications described in voter registration and get-out-the-vote (iii), or (iv) that is applicable to the paragraphs (b)(1)(vi) and (b)(2)(vi) of drives that are aimed at employees Federal elections in that State. this section under 11 CFR 106.1 as outside its restricted class and the * * * * * expenditures or disbursements on general public in accordance with the (e) * * * behalf of the clearly identified conditions set forth in paragraphs (d)(1) (2) * * * candidates. through (d)(6) of this section and only (ii) * * * to the extent permitted by 11 CFR (B) Except as provided in paragraph PART 114—CORPORATE AND LABOR ORGANIZATION ACTIVITY 100.133. Registration and get-out-the- (d)(2) of this section or in 11 CFR part vote drives include providing 102, subpart A, such funds may not be 17. The authority citation for part 114 transportation to the polls or to the transferred more than 10 days before or would continue to read as follows: place of registration. more than 60 days after the payments * * * * * for which they are designated are made. Authority: 2 U.S.C. 431(8)(B), 431(9)(B), 432, 434, 437d(a)(8), 438(a)(8), 441b. * * * * * Dated: March 4, 2004. (f) Method for allocating public 18. Section 114.4 would be amended Bradley A. Smith, communications that promote, support, by revising paragraphs (c)(2), (c)(3), and Chairman, Federal Election Commission. attack or oppose a clearly identified the introductory text of paragraph (d) to [FR Doc. 04–5290 Filed 3–10–04; 8:45 am] Federal candidate, and promote or read as follows: BILLING CODE 6715–01–P
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Part IV
Securities and Exchange Commission 17 CFR Part 270 Mandatory Redemption Fees for Redeemable Fund Securities; Proposed Rule
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SECURITIES AND EXCHANGE comment on proposed rule 22c–2 [17 management of the fund’s portfolio and COMMISSION CFR 270.22c–2] and proposed raise a fund’s transaction costs because amendments to rule 11a–3 [17 CFR the fund manager must either hold extra 17 CFR Part 270 270.11a–3] under the Investment cash or sell investments at inopportune 4 [Release No. IC–26375A; File No. S7–11– Company Act of 1940 [15 U.S.C. 80a] times to meet redemptions. 04] (the ‘‘Investment Company Act’’ or the Some frequent fund traders seek ‘‘Act’’). short-term profits by buying and selling RIN 3235–AJ17 shares in anticipation of changes in Table of Contents market prices, e.g., market timing.5 Mandatory Redemption Fees for Some have exploited pricing Redeemable Fund Securities I. Background II. Discussion inefficiencies in which the price of AGENCY: Securities and Exchange A. Two Percent Redemption Fee mutual fund shares does not accurately Commission. B. Five-Day Holding Period reflect the current market value of the ACTION: Proposed rule. C. Smaller Investors securities held by the fund, i.e., time- D. Shareholder Accounts and zone arbitrage.6 Mutual funds are a SUMMARY: The Securities and Exchange Intermediaries Commission (‘‘Commission’’ or ‘‘SEC’’) E. Exceptions 4 Frequent trading also may result in unwanted is proposing a new rule under the F. Request for Further Comment on Rule taxable capital gains for the remaining fund 22c–2 Investment Company Act that would shareholders. III. General Request for Comment 5 The Commission has settled a number of require mutual funds (with certain IV. Cost-Benefit Analysis enforcement actions alleging federal securities law limited exceptions) to impose a two V. Paperwork Reduction Act violations by investment advisers who permitted percent redemption fee on the VI. Initial Regulatory Flexibility Analysis market timing transactions in a manner inconsistent redemption of shares purchased within VII. Statutory Authority with the funds’ stated policies. See, e.g., In re Text of Proposed Rule Massachusetts Financial Services Co., Investment the previous five days. The redemption Company Act Release No. 26347 (Feb. 5, 2004) fee would be retained by the fund. The (finding that investment adviser and two of its rule is designed to require short-term I. Background executives violated federal securities laws by shareholders to reimburse the mutual allowing widespread market timing trading in Mutual funds are attractive to even certain funds in contravention of those funds’ fund for costs incurred when they use the smallest investors because they offer prospectus disclosures); In re Alliance Capital the fund to implement short-term easy access to national and international Management, L.P., Investment Company Act trading strategies, such as market securities markets.2 Mutual funds allow Release No. 26312 (Dec. 18, 2003) (finding that investment adviser violated federal securities laws timing. investors to pool their savings with by allowing market timing in certain of its mutual DATES: Comments must be received on those of other investors so that they may funds in exchange for fee-generating investments, or or before May 10, 2004. benefit from professional investment ‘‘sticky assets,’’ in its hedge funds and other mutual management, diversification, and funds); In re Putnam Investment Management, LLC, ADDRESSES: To help us process and Investment Company Act Release No. 26255 (Nov. review your comments more efficiently, liquidity. Fund shareholders share the 13, 2003) (finding that investment adviser violated comments should be sent by one losses and the gains of the fund, and Investment Advisers Act and antifraud provisions of the federal securities laws by failing to disclose method only. Comments in paper format also share its costs. Some fund investors take advantage of potentially self-dealing short-term trading of mutual should be submitted in triplicate to this collective relationship by frequently fund shares by several of its employees, failing to Jonathan G. Katz, Secretary, Securities take adequate steps to detect and deter such trading buying and redeeming fund shares. and Exchange Commission, 450 Fifth activity, and failing to supervise employees who These investors may frequently buy committed violations); In re Connelly, Jr., Street, NW., Washington, DC 20549– shares and soon afterwards sell them, in Investment Company Act Release No. 26209 (Oct. 0609. Comments in electronic format reaction to market news or because of a 16, 2003) (finding that an executive of an should be submitted to the following E- investment adviser to a fund complex, in derogation change of heart. Such excessive trading mail address: [email protected]. of fund disclosures, violated federal securities laws occurs at the expense of long-term by approving agreements that allowed select All comment letters should refer to File investors, diluting the value of their investors to market time certain funds in the No. S7–11–04; if E-mail is used, this file shares.3 It also may disrupt the complex). number should be included on the We also have recently instituted numerous subject line. Comment letters will be enforcement actions involving market timing. See, 2 In this release, we use the term ‘‘mutual fund’’ e.g., SEC v. Mutuals.com, Inc., Civil Action No. 303 available for public inspection and or ‘‘fund’’ to mean an open-end investment CV 2912D (N.D. Tex. Dec. 4, 2003) (alleging that copying in the Commission’s Public company that is registered or required to register dually registered broker-dealer and investment Reference Room, 450 Fifth Street, NW., under section 8 of the Investment Company Act [15 adviser, three of its executives, and two affiliated Washington, DC 20549, and also will be U.S.C. 80a–8], and includes a series of a registered broker-dealers assisted institutional brokerage investment company that is a series company. See customers and advisory clients in carrying out and available on the Commission’s Internet proposed rule 22c–2(f)(2). concealing thousands of market timing trades and 1 Web site (http://www.sec.gov). 3 See Jason Greene & Charles Hodges, The illegal late trades in shares of hundreds of mutual FOR FURTHER INFORMATION CONTACT: Dilution Impact of Daily Fund Flows on Open-end funds); SEC v. Invesco Funds Group, Civil Action Shaswat K. Das, Senior Counsel, or C. Mutual Funds: Evidence and Policy Solutions, 65 J. No. 03-N–2421 (PAC) (D. Colo. Dec. 2, 2003) Fin. Econ., 131–158 (2002) (estimating annualized (alleging that investment adviser, with approval of Hunter Jones, Assistant Director, Office dilution from frequent trading, based on market its president and chief executive officer, entered of Regulatory Policy, (202) 942–0690, timing, of 0.48% in international funds: ‘‘the into market timing arrangements with more than Division of Investment Management, dilution impact has brought about a net wealth sixty broker-dealers, hedge funds, and advisers Securities and Exchange Commission, transfer from passive shareholders to active traders without disclosing these arrangements to the in international funds in excess of $420 million affected mutual funds’ independent directors or 450 Fifth Street, NW., Washington, DC over a 26-month period.’’). See also Roger M. shareholders); SEC v. Pilgrim, Baxter & Associates, 20549–0506. Edelen, Investor Flows and the Assessed Ltd., Civil Action No. 03–CV–6341 (E.D. Penn. Nov. SUPPLEMENTARY INFORMATION: The Performance of Open-end Mutual Funds,’’ 53 J. Fin. 20, 2003) (alleging that investment adviser and two Econ. 439, 457 (1999) (quantifying the costs of senior executives had permitted a hedge fund, in Commission today is requesting public liquidity in mutual funds as $0.017 to $0.022 per which one of the executives had a substantial dollar of liquidity-motivated trading). See also Ken financial interest, to engage in repeated short-term 1 We do not edit personal, identifying Hoover, Why mutual funds discourage timers; Two trading of several mutual funds). A number of state information, such as names or E-mail addresses, forms of practice; They increase expenses, can actions are also pending. from electronic submissions. Submit only disrupt portfolios and rob other investors, Investor’s 6 See Bridget Hughes, Deterring Market-Timers in information you wish to make publicly available. Business Daily, Sept. 17, 2003, at AO9. International Funds, Morningstar.com (Sept. 24,
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prime vehicle for abusive market timing The Investment Company Act was their trades, and (ii) discouraging short- activity because they provide for daily enacted to protect the interests of term trading of mutual fund shares by redemptions and the long-term investors mutual fund investors. Many provisions reducing the profitability of the trades. bear the transactional costs of those of the Act guard against overreaching by Our proposal supplements the other redemptions. the fund’s adviser. Other provisions, measures the Commission has recently Many funds have taken steps to deter however, protect fund shareholders taken to address short-term trading, excessive trading or have sought from each other.11 One of the most including abusive market timing reimbursement from traders for the costs important of these is section 22(c), activity.14 As discussed in Section II.F., 7 of their excessive transactions. These which, together with our rule 22c–1, of this Release, our proposals are not steps frequently include imposing requires that each redeeming designed to be an exclusive cure for the 8 redemption fees. Today, funds that shareholder receive his pro rata portion problem of abusive market timing, impose a redemption fee often charge a of the fund’s net assets. These which often (but need not) involves two percent fee for redeeming fund provisions are designed to prevent rapid trading strategies. Conversely, our securities that are held for less than a dilution of the interests of fund proposal is not designed to solely certain amount of time, as described in shareholders.12 address large traders. The costs imposed 9 the fund’s prospectus. These funds Today, we are using our authority on long-term investors in funds by the therefore have generally estimated their under section 22(c) of the Act to cumulative effect of many smaller short- redemption-related costs to be at least propose a new rule requiring funds 10 term traders may be greater than those two percent of amounts redeemed. (with certain exceptions) to impose a imposed by a few large traders. If two percent redemption fee on shares 13 adopted, the proposal would allow 2003) (available at http://news.morningstar.com/ held for five business days or less. funds to recoup some, if not all, of these doc/news/0,2,96909,00.html); Elliot Blair Smith, Proposed rule 22c–2, which we describe Investor Took Advantage of Time-Zone Lag, USA costs. Today, Sept. 15, 2003, at 3B; Kathleen Gallagher, In in more detail below, is designed to Funds, It Can Be a Matter of Timing; Arbitrageurs reduce or eliminate the opportunity of II. Discussion Take Advantage of Price Inefficiencies, Milwaukee short-term traders to exploit other A. Two Percent Redemption Fee Journal Sentinel, Nov. 30, 2003, at O1D. See also investors in the mutual fund by (i) Compliance Programs of Investment Companies and Investment Advisers, Investment Company Act requiring them to reimburse the fund for Proposed rule 22c–2 would require Release No. 26299 (Dec. 17, 2003) [68 FR 74714 the approximate redemption-related mutual funds to impose a fee of two (Dec. 24, 2003)] (adopting rule 38a–1 under the costs incurred by the fund as a result of percent of the proceeds from fund Investment Company Act) at nn. 40–42 and shares redeemed within five business accompanying text (‘‘When fund shares are most funds that impose redemption fees charge a mispriced, short-term traders have an arbitrage days of their purchase. The rule would two percent fee, such funds must have redemption opportunity they can use to exploit a fund and not permit funds to impose a higher or costs of at least two percent. See infra note 15. disadvantage the fund’s long-term investors by lower fee than two percent.15 Each fund, extracting value from the fund without assuming The staff has stated that a redemption fee may recoup or offset the following expenses that are unless excepted, would have to impose any significant investment risk.’’). 16 7 directly related to processing shareholder the fee. Some of the approaches that funds have adopted redemption requests: (i) Brokerage expenses include: (i) restricting exchange privileges, incurred in connection with the liquidation of including delaying both the redemption and portfolio securities necessitated by the redemption; 14 See, e.g., Compliance Programs of Investment purchase sides of an exchange; (ii) limiting the (ii) processing or other transaction costs incident to Companies and Investment Advisers, supra note, number of trades within a specified period; (iii) the redemption and not covered by any (adopting new rules requiring funds and advisers to delaying the payment of proceeds from redemptions administrative fee; (iii) odd-lot premiums; (iv) adopt and implement policies and procedures for up to seven days (the maximum delay permitted transfer taxes; (v) administration fees; (vi) custodian designed to prevent violations of the federal under section 22(e) of the Act); and (iv) identifying fees; and (vii) registrar and transfer-agent fees. See securities laws, including policies to assure that the market timers and restricting their trading or Separate Accounts Funding Flexible Premium fund complies with existing obligations to establish barring them from the fund. See also Disclosure Variable Life Insurance Contracts, Investment fair value for securities in appropriate Regarding Market Timing and Selective Disclosure Company Act Release No. 15651 (Mar. 30, 1987) [52 circumstances); see also Disclosure Regarding of Portfolio Holdings, Investment Company Act FR 11187 (April 8, 1987)] at text following n.74 Market Timing and Selective Disclosure of Portfolio Release No. 26287 (Dec. 11, 2003) [68 FR 70402 (noting positions in SEC staff no-action letters). Holdings, supra note (proposing disclosure (Dec. 17, 2003)] (Commission proposed to require 11 Many of the Act’s prohibitions, such as the amendments concerning fund policies to detect and that funds provide specific disclosure regarding affiliated transaction provisions, apply to an deter market timing activities). their market timing policies and practices ‘‘affiliated person’’ of a fund, which includes any 15 Although the two percent fee is designed to concerning ‘‘fair valuation’’ of their portfolio person owning five percent or more of the reimburse funds for the approximate costs securities). outstanding voting securities of the fund. See associated with frequent trading, the fee itself 8 See Whitney Dow, Redemption Fees Surge 82% section 2(a)(3) of the Act [15 U.S.C. 80a–2(a)(3)] would not be limited to particular costs associated Since 1999: Assessment Periods Lengthen, While (definition of ‘‘affiliated person’’); section 17 of the with particular redemptions. Cf. John P. Reilly & Fees Remain Constant, Financial Research Act [15 U.S.C. 80a–17] (prohibiting an affiliated Associates, SEC Staff No-Action Letter (July 12, Corporation (June 2001) (available at http:// person of a fund, and an affiliated person of such 1979) (the staff would not recommend enforcement www.frcnet.com/research/articles/art_prc_fee.asp) a person, from engaging in the purchase or sale of action if the redemption fee, subject to the at-cost (stating that the number of funds that charge assets with the fund). Therefore, the Act prevents standard, does not exceed two percent of the NAV redemption fees nearly doubled from 2000 to March large shareholders from taking advantage of the of the redeemed shares); Separate Accounts 2001). The Commission noted the use of fund and its other shareholders. Funding Flexible Premium Variable Life Insurance redemption fees by funds in a 1966 report to 12 See sections 22(a) and (c) of the Act [15 U.S.C. Contracts, supra note, at n. 74 (recognizing that staff Congress. Report of the Securities and Exchange 80a–22(a) and (c)] (authorizing Commission rules informally has taken a position that a fund may Commission on the Public Policy Implications of ‘‘for the purpose of eliminating or reducing so far impose a limited redemption fee to cover Investment Company Growth, H.R. Rep. No. 89– as reasonably practicable any dilution of the value ‘‘legitimate expenses that may be incurred to make 2337, at 58, n.156 (1966) (‘‘Redemption fees serve of other outstanding securities of [a fund] or any the payment in cash to a redeeming shareholder’’); two purposes: (1) They tend to deter speculation in other result of [a] purchase, redemption, or sale see also section 10(d)(4) of the Act [15 U.S.C. 80a– the fund’s shares; and (2) they cover the fund’s which is unfair to holders of such other outstanding 10(d)(4)] (providing that a fund may have a board administrative costs in connection with the securities * * *’’). consisting of all interested persons of the fund, redemption.’’). 13 The proposed rule also applies to exchanges of except one independent director, if, among other 9 Funds often provide disclosures describing the securities issued by one fund for securities issued things, ‘‘any premium over net asset value charged redemption fee in footnotes to the fee table of the by another, because these transactions involve a [by the fund] upon the issuance of any security, prospectus. See Item 3 of Form N–1A. We redemption and purchase. See rule 11a–3 under the plus any discount from net asset value charged on anticipate that funds will continue to do so under Act [17 CFR 270.11a–3] (regulating exchanges of redemption thereof, shall not in the aggregate the proposed rule. fund securities, including the imposition of exceed 2 per centum.’’). 10 Because funds are limited to the lesser of the redemption fees). We also are proposing a 16 See infra Section II.E. for a discussion of the actual costs of redemptions or two percent, and conforming amendment to rule 11a–3. exceptions in proposed rule 22c–2.
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The two percent redemption fee policy goals of the Commission— • Is two percent the appropriate level would therefore be both mandatory and preserving the redeemability of mutual for the mandatory redemption fee? uniform. It is mandatory because it fund shares,19 and reducing or Should it be higher or lower? would apply to all fund shares, eliminating the ability of shareholders • Available data indicate that active including shares held by financial who frequently trade their shares to trading in fund shares imposes intermediaries, which will prevent profit at the expense of their fellow significant costs on mutual funds.23 We funds from creating exceptions for shareholders. It reflects the level of request further data on the magnitude certain intermediaries, such as broker- redemption fees that many funds today and types of costs that funds bear as a 17 dealers, banks, and retirement plans. impose, and the maximum level our result of the active trading by a small The uniformity of the two percent fee is staff has long viewed as consistent with percentage of shareholders.24 designed to simplify the provisions of the Act that require • Does the two percent level implementation of the rule and better mutual fund shares to be redeemable.20 approximate the transactional costs that enable intermediaries that hold shares A higher fee could be more effective at funds incur as a result of frequent in omnibus accounts to establish and stopping rapid trading,21 but at a cost to trading? maintain systems to collect these fees. ordinary investors who may be called • Should the rule permit funds to Moreover, absent a mandatory and upon to redeem to meet financial impose a higher or lower fee? Would uniform redemption fee, small funds exigencies. greater flexibility make it more costly may feel competitive pressures not to for financial intermediaries to determine We request comment on the proposed impose redemption fees, which could the applicability and amount of the fee? mandatory redemption fee. impose costs on their long-term How would a higher fee affect the investors and attract market timers to • Should the rule permit, rather than ‘‘redeemability’’ of the shares? their funds. This proposed rule would require, funds to charge a two percent • Should redemption fees in excess of place all funds (unless excepted) on an redemption fee on the redemption of all two percent be allowed only for certain equal footing with respect to charging securities held five days or less? If so, types of funds? redemption fees. The rule also would would funds have enough information • apply to short-term transfers among Should funds be permitted to to assess those fees on accounts held voluntarily impose a fee higher than two subaccounts within variable annuity through financial intermediaries such as contracts.18 percent outside the mandatory broker-dealers and banks? 22 The two percent fee is designed to redemption fee period discussed below? strike a balance between two competing • We recently proposed a new point- 19 During the legislative hearings on the Act, the of-sale disclosure rule, and changes to Commission noted that ‘‘the most important single 17 the rule governing the mutual fund According to the Investment Company Institute attribute which induces purchases of the securities (‘‘ICI’’), 85 to 90 percent of mutual fund purchases of open-end companies by the public is the so- confirmation document provided to are made through intermediaries. See Mutual called ‘redemption feature’ of such securities—that fund investors.25 Should the mandatory Funds: Trading Practices and Abuses That Harm is, the assurance that the shareholder may tender Investors, Testimony of Matthew Fink, President, redemption fee be disclosed as part of his shares to the company and receive at once, or ICI, before the Senate Subcommittee of Financial either or both of these proposals? in a very short time, the approximate cash asset Management, the Budget and International Security, value of such shares as of the time of tender.’’ Committee on Government Affairs, 108th Cong., 1st B. Five-Day Holding Period Investment Trusts and Investment Companies: Sess., 8 n.6 (Nov. 3, 2003) (available at http:// Hearings on S. 3580 Before a Subcomm. of the www.ici.org/statements/tmny.html). A large portion The proposed rule would include a Senate Comm. On Banking and Currency, 76th of these fund investors invest through tax- minimum five-day holding period Cong., 3d Sess. at 985 (1940) (memorandum advantaged retirement plans, such as 401(k) introduced by David Schenker, Chief Counsel, SEC before an investor could redeem its accounts. About one-third of all mutual fund shares Investment Trust Study). shares without triggering the two are held through retirement accounts. See 20 Investment Company Institute, Mutual Funds and Section 2(a)(32) of the Act [15 U.S.C. 80a– percent redemption fee. The rule would the U.S. Retirement Market in 2002, Fundamentals, 2(a)(32)] defines the term ‘‘redeemable security’’ as not preclude a fund from instituting a June 2003, at 1, 2. a security that entitles the holder to receive 26 approximately his proportionate share of the fund’s holding period longer than five days. 18 The ability to transfer assets among For example, funds that are particularly subaccounts on a tax-deferred basis makes variable net asset value. The Division of Investment annuities attractive to market timers. See Ian Management informally took the position that a susceptible to abusive market timing McDonald, Mutual Fund Scrutiny Spreads to fund may impose a redemption fee of up to two activities may want to impose a longer Annuities, The Wall Street Journal, Nov. 7, 2003, at percent to cover the administrative costs associated C1 (‘‘[I]t is becoming clear that fund accounts that with redemption, ‘‘but if that charge should exceed 23 See Roger M. Edelen, Investor Flows and the are part of the investment options for variable 2 percent, its shares may not be considered Assessed Performance of Open-End Mutual Funds, annuities also have been used by market timers to redeemable and it may not be able to hold itself out make profitable trades at the expense of long-term as a mutual fund.’’ See John P. Reilly & Associates, supra note 3 (estimating costs of the liquidity investors.’’); Stephen Schurr, Annuities: The Other SEC Staff No-Action Letter (July 12, 1979). This provided to investors by mutual funds). Variable in Abusive Fund Trading, TheStreet.com position is currently reflected in our rule 23c– 24 See Investment Company Institute, Redemption (Nov. 14, 2003) (available at http:// 3(b)(1) under the Act [17 CFR 270.23c–3(b)(1)], Activity of Mutual Fund Owners, Fundamentals, www.thestreet.com/_tscs/funds/stephenschurr/ which permits a maximum two percent repurchase March 2001, at 1–3 (stating that the vast majority 10125895.html) (‘‘[I]ndustry participants and fee for interval funds and requires that the fee be of fund shareholders do not frequently redeem their watchers say a growing number of institutional reasonably intended to compensate the fund for shares, and that a small percentage of shareholders clients have jumped in variable annuity contracts expenses directly related to the repurchase of fund account for the most active trading). in recent years for market-timing purposes, because shares. 25 See Confirmation Requirements and Point of such contracts allow investors to move freely 21 See, e.g., Letter from Steve Bartlett, The Sale Disclosure Requirements for Transactions in among funds on a tax-deferred basis.’’). See also Financial Services Roundtable, to Paul F. Roye, Certain Mutual Funds and Other Securities, and Karen L. Skidmore, Handling Market Timer Issues Director, Division of Investment Management, SEC Other Confirmation Requirement Amendments, and in Variable Insurance Products Through (Nov. 10, 2003); Letter from Geof Gradler, Senior Amendments to the Registration Form of Mutual Cooperative Arrangements Between Insurance Vice President and Head, Office of Government Funds, Investment Company Act Release No. 26341 Company and Mutual Fund Sponsors, Practising Affairs, Charles Schwab & Co., Inc., to Paul F. Roye, (Jan. 29, 2004) [69 FR 6438 (Feb. 10, 2004)]. Law Institute at 380 (2001) (‘‘Market timing has also Director, Division of Investment Management, SEC 26 Many funds that impose redemption fees become a prevalent issue in the variable annuity (Oct. 27, 2003); Letter from David B. Yeske, require holding periods significantly longer than industry where investors are permitted to make a President, The Financial Planning Association to five days, typically ranging from 30 days to a year. certain number of transfers per year among different William H. Donaldson, Chairman, SEC (Nov. 7, For periods longer than five days, funds would sub-accounts within the insurance company 2003). These letters are available in File No. S7–11– continue to be limited to the lesser of the actual separate account, without generating a commission 04. costs of redemptions or two percent. See supra note fee.’’). 22 See infra Section II.D. 15.
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holding period.27 A five-day holding financial circumstances. Therefore, we shares purchased during the previous period may be sufficient to deter much have included three provisions in the five days through a dividend investment of the rapid trading activities we have proposed rule that would diminish the plan or some other automatic seen, including those involving time- effect of the redemption fee on the investment plan.35 This approach zone arbitrage, without imposing too accounts of smaller investors. permits a fund to perform its own cost- heavy a burden on regular fund First, funds would determine the benefit analysis and determine whether transactions.28 amount of any fee by treating the shares the costs of collecting redemption fees • Would a five-day holding period be held the longest time as being redeemed in small amounts are worth the benefits. sufficient to deter frequent trading, first, and shares held the shortest time This de minimis provision therefore especially frequent trading due to as being redeemed last.30 Also known as would permit, but not require, funds to abusive market timing? the ‘‘first in, first out’’ (‘‘FIFO’’) method, forego the assessment of a redemption • Should we prescribe a longer this is the method commonly employed fee if the amount of the shares redeemed minimum holding period? Would there by funds that charge redemption fees.31 is $2,500 or less. We also propose—as be less incentive to engage in abusive Use of the FIFO method would trigger an alternative to this approach—that the market timing if a longer holding period redemption fees when large portions of rule require funds to forego the were imposed?29 Would a shorter an account are rapidly purchased and assessment of redemption fees if the holding period be sufficient? redeemed (a characteristic of abusive amount of the shares redeemed is • Instead of only setting a minimum market timing transactions), but not $2,500 or less.36 This mandatory holding period, should the rule also set when small portions of an account held approach thus would prohibit funds a maximum holding period for over a longer period are redeemed.32 from collecting these smaller imposing any redemption fee? Thus, most transactions normally made redemption fees of $50 or less, under • Would the flexibility the proposed by most investors would not be subject any circumstance. The uniformity of rule gives to funds to determine the to the fee. this approach across all funds may be length of the holding period make it • Would use of a LIFO method of advantageous for intermediaries who more difficult for financial determining the redemption fee be more collect redemption fees on behalf of intermediaries to determine the effective in combating market timing funds. applicability of the fee? transactions? 33 Would the answer turn • Do these provisions sufficiently • Should the rule contain a special on the amount of the de minimis address the concerns of small investors? provision addressing account transfers exception, which we discuss below? Are • Do they sufficiently distinguish within the previous five days, e.g., there other methods of accounting for harmful rapid trading from occasional rollovers from a 401(k) plan to an shares that are preferable? financial transactions that may involve Individual Retirement Account, to Second, funds would be required to a purchase of fund shares followed by prevent the imposition of the impose the redemption fee only on a redemption? redemption fee in those circumstances? redemptions if the amount of the shares • Conversely, would the thresholds • Should the rule also apply to short- redeemed is greater than $2,500.34 As a permit a substantial amount of harmful term transactions involving a result, an investor could redeem shares rapid trading to occur? redemption followed by a purchase without paying a fee if the fee would be • Many funds that currently impose within five days? $50 or less. We are proposing this redemption fees do not allow for any de minimis waivers of the fees to reimburse C. Smaller Investors threshold amount to allow the fund not to charge the fee for smaller the fund for the costs of a relatively We are sensitive to the potential effect redemptions that may not be disruptive small number of shareholders that of the proposed rule on smaller to the fund, including redemptions of actively trade their shares. investors who may redeem their shares • Would a mandatory de minimis shortly after they purchase them 30 See proposed rule 22c–2(d). exception serve to remove the because of unanticipated personal 31 See NASD, Report of the Omnibus Account reimbursement arrangements and Task Force Members, Jan. 30, 2004, at 8 (‘‘Omnibus protections against short-term trading 27 See Whitney Dow, Redemption Fees Surge 82% Report’’) (available in File No. S7–11–04). that these funds have already 32 Since 1999: Assessment Periods Lengthen, While The application of the FIFO method also has established? Fees Remain Constant, supra note 8 (study finding the advantage of eliminating the need to include in • that, as of March 2001, the number of funds the rule exceptions for numerous types of Would a de minimis threshold of charging redemption fees increased 82% in the transactions in shareholder accounts that might $2,500 limit the effectiveness of the rule previous fifteen months, the size of the fee regularly result if we used the last in, first out in reimbursing the fund for the costs of remained constant, and the length of the holding (‘‘LIFO’’) method, but which do not bear the rapid trading by smaller investors? period increased from 7.5 months to 9.4 months). characteristics of market timing transactions. These • Would the failure of the 28 The vast majority of investors hold shares of transactions include redemptions subsequent to their funds for more than five days. See Investment purchases pursuant to dividend reinvestment plans, Commission to adopt a mandatory de Company Institute, Redemption Activity of Mutual automatic purchase plans, and automatic account minimis threshold allow funds to Fund Owners, supra note 24 at 2 (‘‘vast majority of rebalancing arrangements. The $2,500 de minimis unfairly deny smaller shareholders the equity fund investors did not make a single provision discussed below would prevent the ability to actively trade their funds? redemption during the 12-month period ending application of the redemption fee when a • January 1999’’). redemption of all shares (including the most Should the de minimis threshold be 29 See William Samuel Rocco, Fighting recently purchased shares) occurs shortly after a higher (e.g., $5,000 or $10,000) or lower Redemptions, MORNINGSTAR.com (July 30, 2001) purchase of such shares as a result of one of these (e.g., $2,000 or $1,000)? (available at http://news.morningstar.com/doc/ arrangements. • Should the de minimis threshold be 33 article/0,1,5086,00.html) (Morningstar study found Investors could use multiple accounts to mandatory at one level (e.g., $2,500) and that a longer redemption fee holding period would circumvent a redemption fee based on a LIFO make redemption fees more effective in deterring method of accounting for the holding of shares. market timers during a market downturn: Therefore, use of such an approach might require 35 The exception also is designed to allow funds ‘‘[I]nvestors are only subject to [redemption fees] if intermediaries to transmit the account holder’s to avoid the administrative cost of imposing a they redeem within a specified period, which is taxpayer identification number (‘‘TIN’’) and require redemption fee when the costs of collecting the fee often fairly short * * * [which] suggests fund the fund to match transactions with the same TIN may outweigh the amount of the fee itself. companies that are concerned about withdrawals to determine the applicability of the redemption 36 If we were to adopt this alternative approach, during tough markets should consider redemption fee. paragraph (e)(1) of the proposed rule would be fees with longer holding periods.’’). 34 See proposed rule 22c–2(e)(1)(i). revised accordingly.
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voluntary up to another level (e.g., the fund shareholder. Intermediaries permit the fund to match the current $10,000)? controlling these so-called ‘‘omnibus transaction with previous transactions Third, the rule would provide for the accounts’’ often provide the fund with by the same account and assess the waiver of redemption fees in the case of insufficient information for the fund to redemption fee when it is applicable. an unanticipated financial emergency, apply redemption fees. Indeed, today Under the second method, the upon written request of the many funds choose not to apply intermediary would enter into an shareholder.37 The fund would be redemption fees, or their policies agreement with the fund requiring the required to waive the fee on against market timing, to shares held intermediary to identify redemptions of redemptions of $10,000 or less. The through these omnibus accounts. A account holders that would trigger the fund also would be permitted to waive number of the market timing abuses application of the redemption fee, and the fee on redemptions greater than identified through our examinations and transmit holdings and transaction $10,000 in these emergency investigations reveal that certain information to the fund (or its transfer circumstances. This exception is shareholders were concealing abusive agent) sufficient to allow the fund to designed to permit shareholders access market timing trades through omnibus assess the amount of the redemption to their investment when they need to accounts.39 As a result, those fee.44 Under this approach, the meet unforeseen financial demands, shareholders have often been beyond intermediary would be required to such as payment for emergency surgery, the reach of fund directors’ efforts to submit substantially less data along soon after they purchased their shares. protect the fund and its shareholders with each transaction than under the We request comment on this exception. from the harmful effects of short-term first method. • Should this exception be mandatory trading.40 Under the third method, the fund rather than discretionary, on the part of Last year, to address this serious and would enter into an agreement with a the fund, regardless of the amount of the growing problem, Chairman Donaldson financial intermediary requiring the shares redeemed? requested that the NASD convene a intermediary to impose the redemption • Should the rule define the panel of experts from the brokerage, fees and remit the proceeds to the circumstances that would constitute an money management and retirement plan fund.45 This approach would require the unanticipated financial emergency?38 communities to create greater intermediary to determine which • If so, what should those transparency of shareholder account transactions are subject to the fee, and circumstances include? Should they activities.41 Its findings have been very assess the fee. This method would include, for example, (i) death, useful to us in fashioning provisions of alleviate the burden on intermediaries disability, or other specific personal today’s proposal on redemption fees. to transmit shareholder account and emergencies, (ii) personal economic Proposed rule 22c–2 would give the transactional information to the funds hardship or unanticipated changes in fund and financial intermediaries on a transaction-by-transaction basis.46 personal circumstances, or (iii) through which investors purchase and Regardless of which of the three emergencies such as market breaks or redeem shares three methods of assuring methods described above are used to major political or economic events? that the appropriate redemption fees are collect the redemption fee, the proposed • What are the likely costs to funds of imposed.42 Each fund would be able to rule also would require that, on at least administering the financial emergency select the method(s) to use. Under the a weekly basis, the financial exception? first method, the fund intermediary intermediary provide to the fund the • Should the rule limit the number of must transmit to the fund (or its transfer Taxpayer Identification Number emergency waivers that a shareholder agent) at the time of the transaction the (‘‘TIN’’), and the amount and dates of all may request, or that a fund may grant? account number used by the purchases, redemptions, or exchanges • Should funds be permitted to waive intermediary to identify the for each shareholder within an omnibus the redemption fee in other transaction.43 This information will account during the previous week.47 circumstances, such as purchases made This information is designed to enable in error, or purchases within the five- 39 See, e.g., SEC v. Security Trust Company, et al., the fund to confirm that fund day period due to automatic investment Civil Action No. 03–2323 (D. Ariz. Nov. 24, 2003) intermediaries are properly assessing (alleging that Security Trust Company (‘‘STC’’), an or reinvestment programs? 48 unregistered financial intermediary, in an attempt the redemption fees. It also would D. Shareholder Accounts and to conceal a hedge fund’s market timing activities 44 Intermediaries from mutual funds, opened five omnibus accounts See proposed rule 22c–2(b)(2). for the hedge fund through which the hedge fund’s 45 See proposed rule 22c–2(b)(3). The Omnibus Many investors’ holdings in mutual trades were rotated to evade detection by the Account Task Force found this method to be the funds are through accounts held by mutual funds. STC also allegedly opened mirror most viable approach. See Omnibus Report, supra accounts for the five omnibus accounts using STC’s broker-dealers, banks, insurance note 31, at 2. taxpayer identification number, which approach 46 Under the second and third methods, funds companies, and retirement plan was intended to impede efforts by mutual fund would be responsible for ensuring that administrators. Many of these holdings companies to detect market timers by their tax intermediaries are properly determining the fee, or are on the books of the fund (or its identification numbers). assessing it. 40 transfer agent) in the name of the The state civil complaint in New York v. 47 See proposed rule 22c–2(c). This proposed Canary Capital Partners, LLC, Canary Investment approach was recommended by the Omnibus intermediary, rather than in the name of Management, et al., (N.Y.S. Ct. filed Sept. 3, 2003) Account Task Force. See Omnibus Report, supra at para. 46, illustrates this practice: ‘‘Timers * * * note , at 7. See also, e.g., Letter from Niels Holch, 37 See proposed rule 22c–2(e)(1)(ii). trade through brokers or other intermediaries * * * Executive Director, Coalition of Mutual Fund 38 See, e.g., 26 CFR 1.457–6(c)(2)(i) (2003) (‘‘An who process large numbers of mutual fund trades Investors, to William H. Donaldson, Chairman, SEC unforeseeable emergency must be defined in the every day through omnibus accounts where trades (Dec. 12, 2003) (available in File No. S7–11–04). A plan as a severe financial hardship of the are submitted to mutual fund companies en masse. fund that receives this information pursuant to the participant or beneficiary resulting from an illness The timer hopes that his activity will not be noticed proposed rule would not be able to use the or accident of the participant or beneficiary, the among the ‘noise’ of the omnibus account.’’ information for its own marketing purposes, unless participant’s or beneficiary’s spouse, or the 41 See Letter from William H. Donaldson, permitted under the intermediary’s privacy participant’s or beneficiary’s property due to Chairman, SEC, to Mary L. Schapiro, Vice Chairman policies. See sections 248.11(a) and 248.15(a)(7)(i) casualty * * * or other similar extraordinary and and President, NASD (Nov. 17, 2003). This letter is of Regulation S–P [17 CFR 248.11(a) and unforeseeable circumstances arising as a result of available in File No. S7–11–04. 248.15(a)(7)(i)]. events beyond the control of the participant or the 42 See proposed rule 22c–2(b). 48 See, e.g., Jonas Max Ferris, Next Scandal: beneficiary * * *’’). 43 See proposed rule 22c–2(b)(1). Brokers?, The Street.com, Nov. 26, 2003, (available
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permit funds to detect market timers • We also request comment on the redemptions therefore are unlikely to who a fund has prohibited from administrative and legal issues that pose risks of harm to the fund.57 purchasing fund shares and who insurance companies and their Finally, proposed rule 22c–2 would attempt to enter the fund through a underlying funds would face as a result not apply to any fund that (i) adopts a different account. In addition, this may of this rule.50 fundamental policy to affirmatively in some cases be helpful to funds that permit short-term trading in all of its E. Exceptions would be able to use the information to redeemable securities,58 and (ii) determine whether shareholders Proposed rule 22c–2 would include discloses in its prospectus that it received appropriate breakpoint four exceptions to the mandatory permits short-term trading of its shares discounts on purchases of fund shares redemption fee.51 First, as discussed and that such trading may result in sold with a front-end sales load.49 above,52 the rule would not require additional costs for the fund.59 This • Would the account information funds to collect redemption fees on exception is designed to permit funds provided by the intermediaries to the redemptions of $2,500 or less, and and investors the freedom to invest in funds be sufficient for the funds to would provide for fee waivers in the funds that affirmatively disclose their properly assess the fees? case of financial emergencies.53 Second, intent to allow short-term trading. Some • Should financial intermediaries the rule would except money market short-term traders find these types of provide shareholder identity and funds from its scope.54 Money market funds to be attractive vehicles. We are transaction information to the fund or funds seek to obtain a stable net asset reluctant to propose a rule that would its transfer agent more (or less) value of one dollar per share, and often prohibit such funds and investors from frequently than weekly? are used for short-term investments. achieving their objectives by requiring • They are therefore designed to the funds to impose a redemption fee. Should the rule limit the number of • ways that redemption fees may be accommodate frequent purchases and Should other types of funds also be assessed, in order to promote greater redemptions, and do not appear to be excepted from the rule? uniformity in the enforcement of susceptible to the harms caused by F. Request for Further Comment on Rule redemption fees across funds and their excessive trading; in fact, they are 22c–2 intermediaries? designed to facilitate frequent trading. • Third, the rule would not apply to The proposed mandatory redemption Should the rule require funds to fee is designed to work together with match shareholder purchases and exchange-traded funds (‘‘ETFs’’).55 Shares issued by ETFs are listed on our other regulatory initiatives and with redemptions that occur through tools fund managers already have at multiple accounts or intermediaries? stock exchanges and, like the shares of • other listed operating companies, trade their disposal to curb harmful market With respect to foreign timing transactions.60 Fund managers shareholders, who do not have a TIN, at negotiated prices on securities exchanges. An ETF redeems shares or can use information they receive about what alternative shareholder identity transactions in omnibus accounts to information should financial units in large blocks, or ‘‘creation units,’’ and redemptions of these units take steps to better enforce market intermediaries send to funds? timing policies, including barring • Should we require that funds retain serve to correct the price of individual shares on the secondary market.56 These market timers from the fund. Tighter their agreements with the financial controls on information about portfolio intermediaries as part of their 50 See Letter from Stephen E. Roth and W. holdings will make successful market recordkeeping obligations? 61 • Thomas Conner, Sutherland, Asbill & Brennan LLP, timing transactions more difficult. Are there additional ways to to Paul F. Roye, Director, Division of Investment While a mandatory redemption fee identify market timing trades that are Management, SEC (Feb. 10, 2004). This letter is would reduce the profitability of available in File No. S7–11–04. executed through the use of multiple abusive market timing trades, standing accounts, multiple customer account 51 See proposed rule 22c–2(e). The rule would not permit funds to exclude other types of funds or numbers, intermediaries, or any other redemptions during the five-day holding period. 6–8 and accompanying text (Nov. 8, 2001) [66 FR means designed to evade detection? (Funds that establish longer holding periods, 57614 (Nov. 15, 2001)]. however, would be free to provide exceptions from 57 In addition, redeeming shareholders generally redemption fees imposed on shares held longer at http://www.thestreet.com/_tscs/jonasmaxferris/ pay transaction fees to the ETF to cover the costs than five days.) Thus, a fund could not waive 10128667.html) (‘‘Could a discount broker ‘‘forget’’ associated with redemptions. See Gary L. redemption fees for some investors (e.g., favored to collect a fund’s short-term redemption fee as Gastineau, The Exchange-Traded Funds Manual institutional clients, fund employees, or fund stated in the fund’s prospectus? ‘‘Omnibus (2002). directors) but apply them to others. See Testimony 58 accounting offers interesting ways to cloak illicit A fundamental policy can be changed only by of Don Phillips, Managing Director, Morningstar trades from a fund, including matching retail buys a majority vote of the outstanding voting securities Inc., on ‘‘Mutual Funds: Who’s Looking Out for and sells against big-money accounts taking the of the fund. See section 8(b) of the Act [15 U.S.C. Investors,’’ Before the House Subcommittee on opposite trade at opportune times.’’). In addition, 80a–8(b)]. Capital Markets, Insurance and Government more than one individual may trade through a 59 See proposed rule 22c–2(e)(2)(iii). Sponsored Enterprises of the Committee on particular account, in which case more than one 60 See supra note 7 and accompanying text. Financial Services, 108th Cong., 1st Sess. (Nov. 4, TIN may be associated with the account. Providing 61 2003) (available at http://news.morningstar.com/ See Compliance Programs of Investment this TIN information to the fund may enable the doc/article/0,1,99258,00.html) (‘‘From our Companies and Investment Advisers, supra note 6, fund to determine whether a redemption fee should conversations with fund managers, it is clear that at nn. 54–56 and accompanying text (a fund’s be charged on a redemption in that account. they believe that redemption fees are the best compliance policies and procedures should address 49 See Disclosure of Breakpoint Discounts by deterrent to market timers. Of course, a fee is only potential misuses of nonpublic information, Mutual Funds, Investment Company Act Release effective if it is enforced. We think that funds must including the disclosure to third parties of material No. 26298 (Dec. 17, 2003) [68 FR 74732 (Dec. 24, be much less lax in waiving fees for bigger accounts information about the fund’s portfolio); see also 2003)] (proposed amendments to Form N–1A to or for 401(k) plans, and that directors should be Disclosure Regarding Market Timing and Selective require that funds disclose sales load breakpoint informed when and under what conditions these Disclosure of Portfolio Holdings, supra note 7, at discount arrangements and methods for calculating fees may be waived.’’). nn. 52–67 and accompanying text (proposal to discounts, based on recommendations of Joint require open-end management investment 52 See supra Section II.C. NASD/Industry Task Force on Breakpoints and companies and insurance company managed 53 results of a joint examination sweep by the See proposed rule 22c–2(e)(1). separate accounts that offer variable annuities to Commission, NASD, and NYSE of broker-dealers 54 See proposed rule 22c–2(e)(2)(i). disclose their policies and procedures with respect revealing that most firms in some instances did not 55 See proposed rule 22c–2(e)(2)(ii). to the disclosure of their portfolio securities, and provide investors with breakpoint discounts for 56 See Actively Managed Exchange-Traded Funds, any ongoing arrangements to make available which they appeared to have been eligible). Investment Company Act Release No. 25258, at nn. information about their portfolio securities).
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alone it would be unlikely to deter that some funds have applied fair value value calculated the next day after it abusive market timing transactions in pricing inconsistently, or only to the receives those orders, rather than at the which the profits are expected to exceed most egregious pricing discrepancies. time that the fund next calculates its the fee, or that do not involve short-term While a mandatory redemption fee may NAV? Under such an approach, market transactions.62 reduce, or eliminate, arbitrage profit timers would not be able to predict A significant proportion of abusive opportunities, we are also actively whether the next day’s NAV would be market timing has been designed to considering ways in which the higher or lower and, therefore, would exploit systematic pricing discrepancies implementation of fair value pricing not be able to trade profitably. On the between the value assigned to a fund’s could be improved. other hand, such an approach would portfolio securities for purposes of Our examination staff is in the diminish ordinary investors’ ability to calculating the fund’s net asset value process of gathering information about promptly effect their mutual fund and the ‘‘fair value’’ of those portfolio funds’ current fair value pricing investment decisions. securities. We believe that the use of fair practices, and we have directed the staff • Are there other means to discourage value pricing, as required by the Act,63 of the Division of Investment abusive market timing that we should can reduce or eliminate the arbitrage Management to examine the fair value consider? opportunities that these market timers pricing methodologies used by the seek, and that the primary response of funds and the quality of pricing those III. General Request for Comment funds and fund managers must, methodologies yield, for purposes of The Commission requests comment therefore, be to more accurately evaluating whether there are additional on proposed rule 22c–2, suggestions for calculate the daily net asset value of the measures that we could take to improve additions to the proposed rule, and fund by using fair value pricing funds’ fair value pricing. In connection comment on other matters that might methods when closing prices are with our consideration of these issues, have an effect on the proposal contained unreliable.64 we will be seeking additional comment in this Release. We note that comments Recent experience has shown, on specific issues related to fair value are more helpful if they include however, that the requirement to pricing.66 However, at this time we ask supporting data and analysis. implement fair value pricing has not commenters to address generally fair IV. Cost-Benefit Analysis always been sufficient to eliminate these value pricing as it relates to abusive arbitrage opportunities. One possible market timing. What areas of The Commission is sensitive to the reason is that fair value pricing involves uncertainty do funds face when trying costs and benefits imposed by its rules. subjective judgments that leave open the to fair value their portfolio securities? As discussed above, proposed rule 22c– possibility of market timing, albeit at Are there areas of uncertainty that could 2 would require that funds impose a two reduced profits.65 Another possibility is be resolved with further guidance from percent redemption fee on the us? If funds implement fair value redemption of fund shares within five 62 See Conrad S. Ciccotello, Roger M. Edelen, pricing effectively, is a mandatory days of purchase. Jason T. Greene and Charles W. Hodges, Trading at Stale Prices and Modern Technology: Policy redemption fee unnecessary to address A. Benefits abusive market timing? 67 Options for Mutual Funds in the Internet Age, 7 VA We anticipate that funds and J.L. & Tech. 6, at nn. 141–144 and accompanying After reviewing all information, we text (‘‘Redemption fees can be quite effective in will consider whether to issue shareholders would benefit from the reducing stale price trading.’’ However, additional interpretive guidance or proposed rule. The rule is designed to ‘‘redemption fees cannot address the problems undertake further rulemaking with reimburse a fund for the costs of short- caused by large market moves. For example, in the term trading in fund shares. Short-term 1997 Asian Crisis, a fourteen-percent overnight respect to fair value pricing. Those return was available based on the Hong Kong additional comments and information trading can raise transaction costs for market. At that point, even a two-percent will be relevant to our decision whether the fund, disrupt the fund’s stated redemption fee would not deter stale price a mandatory redemption fee is portfolio management strategy, require traders.’’). maintenance of an elevated cash 63 The Investment Company Act requires funds to necessary or appropriate to deter calculate their net asset values using the market abusive market timing. position, and result in lost investment value of portfolio securities when market quotations We request comment on whether opportunities and forced liquidations. are readily available. Section 2(a)(41) [15 U.S.C. there are additional tools that the Short-term trading also can result in 80a–2(a)(41)] of the Investment Company Act and unwanted taxable capital gains for fund rule 2a–4 [17 CFR 270.2a–4]. If a market quotation Commission should consider to combat for a portfolio security is not readily available (or harmful market timing transactions. shareholders and reduce the fund’s is unreliable), the fund must establish a ‘‘fair value’’ • Should the Commission require that long-term performance. Excessive for that security, as determined in good faith by the funds determine the value of purchase trading also can dilute the value of fund fund’s board. See Pricing of Redeemable Securities shares held by long-term shareholders if for Distribution, Redemption, and Repurchase, and redemption orders at the net asset Investment Company Act Release No. 14244 (Nov. a short-term trader, or ‘‘market timer,’’ 21, 1984) [49 FR 46558 (Nov. 27, 1984)] at n. 7 pricing of the fund. However, such adjustments are buys and sells shares rapidly to take (proposing amendments to rule 22c–1). costly to produce and inexact at best.’’). advantage of market inefficiencies when 64 Fair value pricing takes after-market-close 66 Such a request for comment could include, for the price of a mutual fund does not events into account in determining the fund’s daily example, whether we should adopt a rule requiring reflect the current market value of the net asset value. In a release recently adopting rule funds to regularly review the appropriateness and 38a–1, we reiterated the obligation of funds to fair accuracy of methods used in valuing securities. stocks held by that mutual fund. value their securities under certain circumstances Currently such a practice must be a part of a fund’s Dilution could occur if fund shares are to reduce market timing arbitrage opportunities and compliance policies and procedures. See overpriced and short-term traders to have procedures to meet these obligations. See Compliance Policies and Programs of Investment receive proceeds based on the Compliance Programs of Investment Companies and Companies and Investment Advisers, supra note 14 Investment Advisers, supra note 6. at Section II.A. In addition, we could request overvalued shares. Although short-term 65 See Frederick C. Dunbar and Chudozie comment on whether we should adopt a rule traders can profit from engaging in Okongwu, (Market) Timing is (Not) Everything, clarifying when a fund must re-calculate its net frequent trading of fund shares, the Wallstreetlawyer.com, Oct. 2003, (‘‘There are many asset value when it has re-priced portfolio costs associated with such trading are possible ways to adjust pricing. The goal is to adjust securities. the stale prices of the securities held by a fund by 67 We recognize, however, that a redemption fee borne by all fund shareholders. the predicted effect of the information that becomes may nonetheless be necessary to address the costs To the extent that the rule discourages known between each security’s last trade and the of short-term trading discussed previously. short-term trading, long-term investors
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may have more confidence in the intermediaries, such as retirement plan review in accordance with 44 U.S.C. financial markets as a whole, and funds administrators, find it too expensive to 3507(d) and 5 CFR 1320.11. The title for in particular. Funds would benefit by upgrade their systems, potential the collection of information the increase in investor confidence investors may end up investing in requirements is ‘‘Rule 22c–2 under the because long-term investors would be alternative financial products. In some Investment Company Act of 1940, less likely to seek alternative financial cases, however, the costs may be ‘Redemption fees for redeemable products in which to invest. Because the substantially less for broker-dealers and securities.’’’ An agency may not fund retains the redemption fee, long- other intermediaries that already have conduct or sponsor, and a person is not term shareholders are essentially transfer agent systems in place that can required to respond to, a collection of reimbursed for some, if not all, of the be modified to identify short-term information unless it displays a redemption costs caused by the short- trading.70 We seek comments on these currently valid control number. term traders. costs, and whether they are justified by A. Omnibus Accounts the benefits of the proposed rule. B. Costs With respect to the method of As discussed above, we are proposing Currently, some funds already impose determining which shares are subject to rule 22c–2 to require a mandatory two redemption fees on redemptions made the redemption fees, we considered the percent redemption fee to be applied on within a specified period of time, often benefits and costs associated with all redemptions of fund shares held five thirty days to a year. The proposed rule adopting a LIFO method compared to a business days or less, subject to certain would likely result in minimal costs for FIFO approach, the current method narrow exceptions. To ensure that the those funds. With respect to funds that used by most funds to impose redemption fees are applied uniformly, do not currently impose redemption redemption fees. We understand that fund shares held by financial fees, the proposed requirement of a the LIFO method may entail intermediaries in omnibus accounts mandatory two percent redemption fee substantially greater costs than FIFO. must be subject to the fee. The rule would provide three also would likely result in a minimal Moreover, unlike FIFO, the use of LIFO methods by which a fund could assess burden. may warrant the exclusion of certain and collect the redemption fees on transactions, such as investments made With respect to omnibus accounts, we shares held through omnibus accounts. through a periodic purchase plan. Thus, recognize that the proposed rule, if The fund could direct the financial the use of LIFO may add a level of adopted, may result in costs for funds intermediary to: (i) Provide the fund, complexity to the administration of the and their intermediaries. The costs to a upon submission of each purchase and redemption fee, particularly in omnibus fund’s transfer agent to store the redemption order, the account number accounts, which could result in shareholder information and track the used by the financial intermediary to trading activity may be significant, and additional costs. identify the shareholder (paragraph those costs may ultimately be passed on (b)(1)); (ii) provide the fund, as to 68 C. Request for Comment to investors. In some cases, the redemption orders upon which the fund The Commission requests comment transfer agent will have to upgrade its must charge a redemption fee, on the potential costs and benefits of the recordkeeping systems; however, some transaction and holdings information proposed rule. We also request transfer agents may have software that sufficient to permit the fund to assess comment on the potential costs and can be used, or modestly modified, to the amount of the redemption fee benefits of any alternatives suggested by accommodate the matching of purchases (paragraph (b)(2)); or (iii) assess the commenters. We encourage commenters and redemptions. In addition, with redemption fee and remit the fee to the to identify, discuss, analyze, and supply respect to funds and their transfer fund (paragraph (b)(3)). In addition, agents, the costs of storing the data will relevant data regarding any additional regardless of the approach selected be mitigated because the proceeds of the costs and benefits. For purposes of the above, at least once weekly, the fund two percent redemption fee will be Small Business Regulatory Enforcement 71 must receive from the financial retained by the funds for the benefit of Act of 1996, the Commission also intermediary the TIN of all shareholders their long-term shareholders. We seek requests information regarding the that purchased or redeemed shares held comments on these costs, and whether potential annual effect of the proposals in omnibus accounts, and the amount they are justified by the benefits of the on the U.S. economy. Commenters are and dates of such shareholder purchases proposed rule. requested to provide empirical data to and redemptions (paragraph (c)). We also recognize that the proposed support their views. The Commission staff estimates that rule, if adopted, may impose some costs V. Paperwork Reduction Act there are currently 3,100 active on financial intermediaries that will registered open-end investment have to upgrade their software or other Certain provisions of proposed rule companies and that each fund (or its technology because their systems 22c–2 would result in new ‘‘collection transfer agent) would be required to currently may not be able to either of information’’ requirements within the collect redemption fees on transactions meaning of the Paperwork Reduction transmit the shareholder data or track 72 in omnibus accounts. We also estimate trading patterns of individual Act of 1995. The Commission is that about (i) 15 percent of all funds accountholders.69 If financial submitting this proposal to the Office of would receive information from Management and Budget (‘‘OMB’’) for intermediaries according to the 68 Many funds already pay the intermediaries approach set forth in paragraph (b)(1), [redemption] fees will raise additional costs to plan who sell their funds for the recordkeeping they (ii) 35 percent of all funds would perform for omnibus accounts. participants.’’ 69 See, e.g., Letter from Edward L. Yingling, 70 Broker-dealers using National Securities receive information from intermediaries American Bankers Association, to Paul F. Roye, Clearing Corporation already transmit TINs to fund according to the approach set forth in Director, Division of Investment Management, SEC transfer agents for certain types of ‘‘networking’’ paragraph (b)(2), and (iii) 50 percent of (November 12, 2003) (available File S7–11–04). The arrangements. See Omnibus Report, supra note 31, all funds would arrange for American Bankers Association noted that at 4, n. 6. redemption fees would increase 401(k) plan costs: 71 Pub. L. No. 104–121, Title II, 110 Stat. 857 intermediaries to assess the redemption the ‘‘need to set accounting processes for those (1996). fees, pursuant to paragraph (b)(3). These accounts and to administer the movement of 72 44 U.S.C. 3501–3520. collection of information requirements
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would be mandatory because a fund transactional data to match purchases certain transactional and periodic must receive the above information from and redemptions within a shareholder’s information to the fund as outlined in the financial intermediary to ensure that account, and assess redemption fees Section II.D. For the purpose of these redemption fees are properly assessed in would be 300 burden hours per fund, estimates, with respect to the omnibus accounts. for an aggregate burden of 325,500 hours transaction information under Regardless of the approach selected, for all funds.79 paragraph (b), we have assumed that we anticipate that all funds would have We estimate the start-up costs about 15 percent of intermediaries to modify their agreements or contracts required to store and process would supply the transactional with their intermediaries. This information necessary to assess information to the fund pursuant to modification would create a one-time redemption fees to be $560,000 per paragraphs (b)(1), 35 percent of burden of 4.5 hours per fund (4 hours fund, for an aggregate cost of intermediaries would supply the by in-house counsel, .5 hours by $607,600,000 for all funds.80 We transactional information pursuant to support staff) 73 for a total burden of estimate the annual ongoing operation paragraph (b)(2) of the proposed rule, 13,950 hours.74 and maintenance costs would be $6,640 and about half of the intermediaries for an aggregate cost of $7,204,400 for 1. Funds: Paragraph (b)(1) themselves would assess the all funds.81 We estimate the ongoing redemption fee pursuant to paragraph As noted above, 15 percent of all collection of information burden on (b)(3) of the rule. funds (i.e., 465 funds) are expected to funds to be 300 hours per fund, for an Under paragraph (b)(1), the select the option set forth in paragraph aggregate burden of 325,500 hours.82 Commission staff estimates that the one- (b)(1). The Commission staff estimates, The operation and maintenance costs time capital cost to financial based on information provided by would be $6,640 per fund for an intermediaries to develop or upgrade funds, that the one-time burden on a aggregate cost of $7,204,400 for all their software or other technological fund to develop or upgrade its systems 83 funds. systems to collect, and store the for the storage of information received required transactional information to be from intermediaries, evaluate 3. Funds: Paragraph (b)(3) $100,000 per intermediary for an transactional data to match purchases As noted above, 50 percent of all aggregate cost of $102,000,000 for all and redemptions within a shareholder’s funds (i.e., 1,550 funds) are expected to intermediaries.85 The Commission staff account, and assess redemption fees select the option set forth in paragraph also anticipates an ongoing burden for would be 300 burden hours, for an (b)(3). Under paragraph (b)(3), the fund financial intermediaries to comply with aggregate burden of 139,500 hours for and intermediary would enter into an the transactional information all funds.75 We estimate the start-up agreement whereby the intermediary requirements set forth in the rule. We costs required to store and process itself would assess the fee. Under this information necessary to assess estimate the annual burden to be 240 approach, funds would not receive any hours for an aggregate burden of 244,800 redemption fees to be $560,000 per shareholder data from intermediaries. hours.86 The operation and maintenance fund, for an aggregate cost of Therefore, there would be no collection costs would be $100,000 per $260,400,000 for all funds.76 of information requirements for funds. In addition, funds also would have an intermediary for a total cost of 87 ongoing burden to operate and maintain 4. Intermediaries: Paragraphs (b)(1)–(3) $102,000,000 for all intermediaries. systems to store and process The Commission staff estimates that Under paragraph (b)(2), the information necessary to impose there are currently approximately 6,800 Commission staff estimates that the one- redemption fees in omnibus accounts. financial intermediaries (2,203 broker- time capital cost to financial Based on information provided by dealers classified as specialists in fund intermediaries to develop or upgrade funds, we estimate this burden to be 300 shares, 2,400 banks,84 196 insurance their software or other technological hours annually per fund, for an companies sponsoring registered systems to collect, and store the aggregate burden of 139,500 hours.77 separate accounts organized as unit required transactional information to be The operation and maintenance costs investment trusts, and approximately $10,000 per intermediary for an would be $6,640 per fund, for an 2,000 retirement plan administrators) aggregate cost of $23,800,000 for all 88 aggregate cost of $3,087,600 for all that would be required to transmit intermediaries. The Commission staff funds.78 also anticipates an ongoing burden for 79 (300 hours × 1,085 funds = 325,500 hours). financial intermediaries to comply with 2. Funds: Paragraph (b)(2) 80 ($560,000 per fund × 1,085 funds = the transactional information As noted above, 35 percent of all $607,600,000). requirements set forth in the rule. We funds (i.e., 1,085 funds) are expected to 81 ($6,640 per fund × 1,085 funds = $7,204,400). estimate the annual burden to be 24 82 × select the option set forth in paragraph (300 hours 1,085 funds = 325,500 hours). hours per intermediary for an aggregate 83 × (b)(2). Under paragraph (b)(2) of the ($6,640 per fund 1,085 funds = $7,204,400). burden of 57,120 hours.89 The operation 84 The Commission staff estimates that for the rule, the Commission staff estimates, quarter ending September 30, 2003, about 2,400 and maintenance costs would be based on information provided by banks reported to the Federal Financial Institutions $10,000 per intermediary for a total cost funds, that the one-time burden on Examination Council (on their Reports of Condition of $23,800,000 for all intermediaries.90 funds to develop or upgrade their and Income) that they sell private label or third party mutual fund shares or variable annuity systems for the storage of information 85 ($100,000 per intermediary × 1,020 contracts (‘‘annuities’’). Unregistered annuities intermediaries = $102,000,000). received from intermediaries, evaluate would not be subject to proposed rule 22c–2. This 86 (240 hours per intermediary × 1,020 number may be an over-estimate of the number of intermediaries = 244,800 hours). banks that would be affected by the proposed rule 73 These estimates are based on discussions with 87 ($100,000 per intermediary × 1,020 fund representatives. because some of these banks may only sell annuities not required to register under the intermediaries = $102,000,000). 74 (3,100 funds × 4.5 hours = 13,950 hours). 88 × Investment Company Act of 1940. The number of ($10,000 per intermediary 2,380 75 × (300 hours 465 funds = 139,500 hours). banks selling funds or annuities may also count intermediaries = $23,800,000). 76 × ($560,000 per fund cost 465 funds = some banks selling on the banks’ premises through 89 (24 hours per intermediary × 2,380 $260,400,000). registered broker-dealers. These banks have already intermediaries = 57,120 hours). 77 (300 hours × 465 funds = 139,500 hours). been counted in the estimate of the number of 90 ($10,000 per intermediary × 2,380 78 ($6,640 per fund × 465 funds = $3,087,600). broker-dealer respondents. intermediaries = $23,800,000).
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Under the approach set forth in waiver, with an aggregate burden on requirements for all 9,900 respondents paragraph (b)(3) of the proposed rule, shareholders of 5,167 hours.99 (i.e., 3,100 funds + 6,800 intermediaries), an average of the first there would be no collection of C. Aggregate Hours and Cost Burdens information requirements on year cost and the subsequent annual intermediaries. To arrive at the total information costs must be calculated. Over the three- collection burden for all 9,900 year period for which we are seeking 5. Funds and Intermediaries: Paragraph respondents (i.e., 3,100 funds + 6,800 approval, the weighted average (c) intermediaries) under the proposed aggregate annual cost would be amendments to rule 22c–2, an average $1,053,492,000.102 With respect to the periodic of the first year burden and the information, including the TIN of the subsequent annual burdens must be D. Request for Comments shareholder, to be provided on at least calculated. Over the three-year period We request comment on whether a weekly basis as set forth in paragraph for which we are seeking approval, the these estimates are reasonable. Pursuant (c) of the proposed rule, we estimate weighted average aggregate annual to 44 U.S.C. 3506(c)(2)(B), the that there would be a burden on funds information collection burden would be Commission solicits comments in order to collect and evaluate the data, and 8,856,737 hours.100 The Commission to: (i) Evaluate whether the proposed intermediaries to transmit it. However, estimates that there will be a total of collections of information are necessary that burden is reduced because we are 155,592,600 responses annually, which for the proper performance of the requiring the data to be provided on at includes responses by funds, functions of the Commission, including least a weekly basis, rather than on a intermediaries, and fund whether the information will have transaction-by-transaction basis. We shareholders.101 practical utility; (ii) evaluate the estimate the annual burden on a fund to To arrive at the total annual cost of accuracy of the Commission’s estimate be 2,080 hours 91 for a total burden of the new information collection of the burden of the proposed 6,448,000 hours for all funds.92 We collections of information; (iii) estimate the capital costs to be $100,000 99 (31,000 requests per year × 10 minutes = determine whether there are ways to 310,000 minutes or 5,167 hours). enhance the quality, utility, and clarity per fund for an aggregate cost of 100 In the first year after adoption: (i) The $310,000,000 for all funds,93 and the aggregate burden for funds is expected to be of the information to be collected; and ongoing yearly cost to be $20,584,000.94 6,926,950 hours (13,950 hours for contract (iv) minimize the burden of the We estimate the annual burden to be modifications + 139,500 hours for funds relying on collections of information on those who paragraph (b)(1) + 325,500 hours for funds relying 240 hours per intermediary for a total are to respond, including through the on paragraph (b)(2) + 6,448,000 hours for the use of automated collection techniques burden of 1,632,000 hours for all information collection requirements in paragraph or other forms of information financial intermediaries.95 We estimate (c) = 6,926,950 hours); (ii) the aggregate burden for intermediaries is expected to be 1,933,920 hours technology. the capital costs to be $150,000 per (244,800 hours for intermediaries relying on Persons wishing to submit comments intermediary for an aggregate cost of paragraph (b)(1) + 57,120 for intermediaries relying 96 on paragraph (b)(2) + 1,632,000 hours for the on the collection of information $1,020,000,000, and an ongoing cost requirements of the proposed to be $100,000 per intermediary for an information collection requirements in paragraph (c) = 1,933,920 hours); and (iii) the aggregate burden aggregate yearly cost of $680,000,000 for for redeeming shareholders is expected to be 5,167 102 In the first year after adoption: (i) the aggregate all intermediaries.97 hours. Thus, in the first year after adoption, the cost burden for funds is expected to be aggregate burden for all respondents is expected to $1,178,000,000 ($260,400,000 for funds relying on B. Emergency Exception be 8,866,037 hours (6,926,950 hours for funds + paragraph (b)(1) + $607,600,000 for funds relying on 1,933,920 hours for intermediaries + 5,167 hours for paragraph (b)(2) + 310,000,000 for the information The proposed rule also would contain redeeming shareholders = 8,866,037 hours). In the collection requirements in paragraph (c) = an exception that would permit a second and third years after adoption, the annual $1,178,000,000); and (ii) the aggregate cost burden burden for respondents is expected to fall to for intermediaries is expected to be $1,145,800,000 shareholder, in case of an unanticipated 8,852,087 hours, because the burden attributable to ($102,000,000 for intermediaries relying on financial emergency, to make a written one-time contract modifications will no longer be paragraph (b)(1) + $23,800,000 for intermediaries request to the fund to waive the incurred by funds. Thus, the average annual burden relying on paragraph (b)(2) + $1,020,000,000 for the redemption fee if the amount of the over the three-year period for which we are seeking information collection requirements in paragraph approval is expected to be 8,856,737 hours (c) = $1,145,800,000). Thus, in the first year after shares redeemed is $10,000 or less. We (8,866,037 first year’s burden + 8,852,087 second adoption, the aggregate cost burden for all estimate that each fund would receive year’s burden + 8,852,087 third year’s burden/3 = respondents is expected to be $2,323,800,000. In the approximately ten waiver requests on an 8,856,737 hours). second and third years after adoption, the annual 101 Specifically, the staff estimates that annually cost burden for respondents is expected to fall to annual basis. Therefore, the aggregate there will be: (i) 150,000,000 responses under $836,676,000, because funds and intermediaries number of requests would be 31,000.98 paragraph (b)(1) (1 response for each of the 15% of will incur only the ongoing operation and We estimate that it will take each the estimated 1 billion purchase and sale maintenance costs of systems that have been put in transactions in fund shares that we assume will be place during the first year. Specifically, in each of shareholder 10 minutes to prepare a subject to paragraph (b)(1) = 150,000,000 the second and third years after adoption: (i) The responses); (ii) 5,208,000 responses under aggregate cost burden for funds is expected to be 91 (40 hours per week × 52 weeks = 2,080 hours paragraph (b)(2) (1 response for each of the $30,876,000 ($3,087,600 for funds relying on per year). estimated 35% of the approximately 14,880,000 paragraph (b)(1) + $7,204,400 for funds relying on 92 (2,080 hours per fund × 3,100 funds = affected redemption transactions per year (3,100 paragraph (b)(2) + $20,584,000 for the information × 6,448,000 hours per year). funds 4,800 affected redemptions per fund per collection requirements in paragraph (c) = 93 ($100,000 per fund × 3,100 funds = year = 14,880,000 affected redemptions) that are $30,876,000); and (ii) the aggregate cost burden for $310,000,000). subject to paragraph (b)(2) = 5,208,000 responses); intermediaries is expected to be $805,800,000 (iii) 353,600 responses under paragraph (c) (6,800 ($102,000,000 for intermediaries relying on 94 ($6,640 per fund × 3,100 funds = $20,584,000). intermediaries × 52 responses per year = 353,600 paragraph (b)(1) + $23,800,000 for intermediaries 95 × (240 hours per intermediary 6,800 responses); and (iv) 31,000 responses by relying on paragraph (b)(2) + $680,000,000 for the intermediaries = 1,632,000 hours). shareholders seeking a financial emergency information collection requirements in paragraph 96 × ($150,000 per intermediary 6,800 exception under the rule. Thus, we anticipate that (c) = $805,800,000). Thus, the average annual cost intermediaries = $1,020,000,000). there will be a total of 155,592,600 annual burden over the three year period for which we are 97 ($100,000 per intermediary × 6,800 responses (150,000,000 responses under (b)(1) + seeking approval is expected to be $1,053,492,000 intermediaries = $680,000,000). 5,208,000 responses under (b)(2) + 353,600 ($1,178,000,000 first year’s burden + $805,800,000 98 (10 requests per year × 3,100 funds = 31,000 responses under (c) + 31,000 responses for the second year’s burden + $805,800,000 third year’s requests per year). emergency exception = 155,592,600 responses). burden/3 = $1,053,492,000).
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amendments should direct them to the D. Small Entities Subject to the Because the Commission and its staff Office of Management and Budget, Proposed Rule and Amendments are not familiar with the full range of Attention Desk Officer of the Securities A small business or small available technologies associated with and Exchange Commission, Office of organization (collectively, ‘‘small these upgrades, we request that Information and Regulatory Affairs, entity’’) for purposes of the Regulatory commenters address the cost of such Room 10102, New Executive Office Flexibility Act is a fund that, together upgrades, including specific data when Building, Washington, DC 20503, and with other funds in the same group of available. should send a copy to Jonathan G. Katz, related investment companies, has net E. Reporting, Recordkeeping, and Other Secretary, Securities and Exchange assets of $50 million or less as of the Compliance Requirements end of its most recent fiscal year.104 Of Commission, 450 Fifth Street, NW., The proposal would not contain new approximately 3,925 funds (3,100 Washington, DC 20549–0609, with mandatory reporting or recordkeeping registered open-end investment reference to File No. S7–11–04. OMB is requirements. required to make a decision concerning companies and 825 registered unit the collections of information between investment trusts), approximately 163 F. Duplicative, Overlapping, or 105 30 and 60 days after publication of this are small entities. A broker-dealer is Conflicting Federal Rules Release; therefore a comment to OMB is considered a small entity if its total The Commission has not identified best assured of having its full effect if capital is less than $500,000, and it is any federal rules that duplicate, overlap, not affiliated with a broker-dealer that OMB receives it within 30 days after or conflict with the proposed rule. has $500,000 or more in total capital.106 publication of this Release. Requests for Of approximately 6,800 registered G. Significant Alternatives materials submitted to OMB by the broker-dealers, approximately 880 are Commission with regard to these The Regulatory Flexibility Act directs small entities, with approximately 400 the Commission to consider significant collections of information should be in of these classified as specialists in alternatives that would accomplish the writing, refer to File No. S7–11–04, and funds. A transfer agent is considered a stated objective, while minimizing any be submitted to the Securities and small entity if it has: (i) Received less significant adverse impact on small Exchange Commission, Records than 500 items for transfer and less than entities. Alternatives in this category Management, Office of Filings and 500 items for processing during the would include: (i) Establishing different Information Services. preceding six months (or in the time compliance or reporting standards that VI. Initial Regulatory Flexibility that it has been in business, if shorter); take into account the resources available Analysis (ii) transferred items only of issuers that to small entities; (ii) clarifying, would be deemed ‘‘small businesses’’ or consolidating, or simplifying the This Initial Regulatory Flexibility ‘‘small organizations’’ as defined in rule compliance requirements under the rule Analysis (‘‘IRFA’’) has been prepared in 0–10 under the Securities Exchange Act for small entities; (iii) using accordance with 5 U.S.C. 603. It relates of 1934; (iii) maintained master performance rather than design to rule 22c–2 and amendments to rule shareholder files that in the aggregate standards; and (iv) exempting small 11a–3 under the Investment Company contained less than 1,000 shareholder entities from coverage of the rule, or any Act, which we are proposing in this accounts or was the named transfer part of the rule. Release. agent for less than 1,000 shareholder The Commission does not presently accounts at all times during the believe that the establishment of special A. Reasons for the Proposed Action preceding fiscal year (or in the time that compliance requirements or timetables it has been in business, if shorter); and under the proposal for small entities is As discussed more fully in Section I (iv) is not affiliated with any person feasible or necessary. The proposed rule of this Release, the reason for the (other than a natural person) that is not arises from enforcement actions and proposed action is that short-term a small business or small organization settlements that underscore the need to trading of fund shares, including market under rule 0–10.107 We estimate that 40 reimburse funds so that long-term timing activity, imposes costs on funds out of approximately 208 registered shareholders will not be disadvantaged that are borne by long-term fund transfer agents qualify as small by shareholders that engage in frequent shareholders. entities. trading and fund managers that As we discussed above, under the selectively permit such short-term B. Objectives of the Proposed Action proposed rule, any redemption of fund trading. Excepting small entities from As discussed more fully in Section II shares (with certain limited exceptions) the proposed rule could disadvantage of this Release, the objective of the held for five business days or less would fund shareholders of small entities and proposed rule is to require shareholders be subject to a two percent redemption compromise the effectiveness of the to reimburse the fund for costs incurred fee. This rule would apply to all proposed rule. Nevertheless, we request by the fund when they engage in short- transactions, including those in comment on whether it is feasible or omnibus accounts. The Commission term trading in fund shares, and to deter necessary for small entities to have staff expects that this rule would require short-term trading. special requirements or timetables for that funds and intermediaries develop compliance with the proposed rule. C. Legal Basis or upgrade software or other Should the proposed rule be altered in technological systems to impose order to ease the regulatory burden on As indicated in Section VII of this redemption fees in omnibus accounts. small entities, without sacrificing its Release, new rule 22c–2 and effectiveness? amendments to rule 11a–3 are proposed 104 17 CFR 270.0–10. With respect to further clarifying, pursuant to the authority set forth in 105 Some or all of these entities may contain consolidating or simplifying the sections 11(a), 22(c) and 38(a) of the multiple series or portfolios. If a registered compliance requirements of the 103 investment company is a small entity, the portfolios Investment Company Act. or series it contains are also small entities. proposed rule, using performance rather 106 17 CFR 240.0–10. than design standards, and exempting 103 15 U.S.C. 80a–11(a), 80a–22(c), and 80a–37(a). 107 17 CFR 240.0–10(h). small entities from coverage of the rule
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or any part of the rule, we believe such Federal Regulations is proposed to be redemption fee required in paragraph (a) changes are impracticable. Small amended as follows: of this section. entities are as vulnerable to the (c) Periodic information required. In problems uncovered in recent PART 270—RULES AND order to determine whether the enforcement actions and settlements as REGULATIONS, INVESTMENT redemption fee is properly assessed large entities; shareholders of small COMPANY ACT OF 1940 under paragraph (a) of this section, a entities are equally in need of protection 1. The authority citation for Part 270 fund must require each financial from short-term traders. We believe that continues to read in part as follows: intermediary, as described in paragraph a mandatory redemption fee will serve (b) of this section, to provide it no less as a useful tool to discourage short-term Authority: 15 U.S.C. 80a–1 et seq., 80a– frequently than once each week, trading. Exempting small entities from 34(d), 80a–37, and 80a–39, unless otherwise (1) The Taxpayer Identification noted. coverage of the rule or any part of the Number of all shareholders that rule could compromise the effectiveness * * * * * purchased or redeemed shares held of the proposed rule. through an account with the financial § 270.11a–3 [Amended] H. Solicitation of Comments intermediary for the time period 2. Section 270.11a–3 is amended by submitted; and The Commission encourages the revising the undesignated paragraph (2) The amount and dates of such submission of comments with respect to following (b)(2) to read as follows: shareholder purchases and redemptions any aspect of this IRFA. Comment is * * * * * for the time period submitted. specifically requested on the number of (b) * * * (d) Calculation of the redemption fee. small entities that would be affected by (2) * * * In determining the amount of the the proposed rule, and the likely impact Any scheduled variation of a redemption fee under paragraph (a) of of the proposals on small entities. redemption fee, other than pursuant to this section, the fund must treat the Commenters are asked to describe the § 270.22c–2, must be reasonably related shares held in the account (or an nature of any impact and provide to the costs to the fund of processing the account to which the account is the empirical data supporting its extent. type of redemptions for which the fee is successor) the longest period of time as These comments will be considered in charged; the first shares redeemed (first in, first connection with any adoption of the * * * * * out or FIFO). The fund must determine proposed rule and amendments, and 3. Section 270.22c–2 is added to read the amount of the redemption fee on the reflected in the Final Regulatory as follows: basis of proceeds payable to the Flexibility Analysis. shareholder before the imposition of any Comments should be submitted in § 270.22c–2 Redemption fees for deferred sales load or administrative fee. triplicate to Jonathan G. Katz, Secretary, redeemable securities. The fee may either reduce the amount Securities and Exchange Commission, (a) Redemption fee. It is unlawful for of the proceeds to the shareholder or 450 Fifth Street, NW., Washington, DC any fund issuing redeemable securities, increase the number of shares 20549–0609. Comments also may be its principal underwriter, or any dealer redeemed. submitted electronically to the in such securities to redeem a (e) Exceptions.—(1) Waiver of fees. following E-mail address: rule- redeemable security issued by the fund, Notwithstanding paragraph (a), [email protected]. All comment letters within five business days after the (i) A fund may waive the redemption should refer to File No. S7–11–04, and security was purchased, unless the fund this file number should be included on fee if the amount of the shares redeemed imposes a redemption fee of two percent is 2,500 dollars or less; 109 and the subject line if E-mail is used.108 of the amount redeemed, which fee Comment letters will be available for (ii) In the case of an unanticipated shall be retained by the fund. financial emergency, upon written public inspection and copying in the (b) Transaction information required request of the shareholder, Commission’s Public Reference Room, for assessment of fee. For the purpose of (A) A fund must waive the 450 Fifth Street, NW., Washington, DC imposing the fee required pursuant to redemption fee if the amount of the 20549–0102. Electronically submitted paragraph (a) of this section, a fund shares redeemed is 10,000 dollars or comment letters also will be posted on must, with respect to each shareholder less; and the Commission’s Internet Web site account held by a financial (B) A fund may waive the redemption (http://www.sec.gov). intermediary: fee if the amount of the shares redeemed VII. Statutory Authority (1) Require the financial intermediary to provide the fund, upon submission of is more than 10,000 dollars. (2) Excepted funds. The requirements The Commission is proposing rule each purchase and redemption order, of paragraphs (a) through (c) of this 22c–2 and amendments to rule 11a–3 the account number used by the section do not apply to: pursuant to the authority set forth in financial intermediary to identify the (i) Money market funds; sections 11(a), 22(c) and 38(a) of the shareholder; Investment Company Act [15 U.S.C. (2) Have entered into an agreement (ii) Any fund that issues securities 80a–11(a), 80a–22(c) and 80a–37(a)]. with the financial intermediary under that are listed on a national securities exchange; and List of Subjects in 17 CFR Part 270 which the intermediary must provide the fund, as to redemption orders upon (iii) Any fund that has adopted a Investment companies, Reporting and which the fund must charge a fundamental policy to affirmatively recordkeeping requirements, Securities. redemption fee under paragraph (a) of 109 As discussed in the preamble to this Release, Text of Proposed Rule this section, transaction and holdings the Commission also is proposing, as an alternative For reasons set out in the preamble, information sufficient to permit the to this paragraph (e)(1)(i), that the waiver of fees on Title 17, Chapter II of the Code of fund to assess the amount of the redemptions of $2,500 or less be mandatory rather redemption fee; or than discretionary on the part of the fund. See supra note 36 and accompanying text. If we were 108 Comments on the IRFA will be placed in the (3) Have entered into an agreement to adopt this alternative approach, paragraph same public file that contains comments on the with the financial intermediary under (e)(1)(i) of the proposed rule would be revised proposed rule. which the intermediary must assess the accordingly.
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permit short-term trading of its insurance company that sponsors a company that is registered under the securities, if its prospectus clearly and registered separate account organized as Act and is regulated as a money market prominently discloses that the fund a unit investment trust. fund under § 270.2a–7. permits short-term trading of its (2) Fund means an open-end By the Commission. securities and that such trading may management investment company that result in additional costs for the fund. is registered or required to register Dated: March 5, 2004. (f) Definitions. For the purposes of under section 8 of the Investment Margaret H. McFarland, this section, Company Act (15 U.S.C. 80a–8), and Deputy Secretary. (1) Financial intermediary means a includes a separate series of such an [FR Doc. 04–5374 Filed 3–10–04; 8:45 am] record holder as defined in rule 14a–1(i) investment company. BILLING CODE 8010–01–P under the Securities Exchange Act of (3) Money market fund means an 1934 (17 CFR 240.14a–1(i)) and an open-end management investment
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Part V
Federal Trade Commission 16 CFR Part 316 Definitions, Implementation, and Reporting Requirements Under the CAN– SPAM Act; Proposed Rule
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FEDERAL TRADE COMMISSION be publicly available on the FTC Web purpose of which is the commercial site. The fields marked with an asterisk advertisement or promotion of a 16 CFR Part 316 on the form are required in order for the commercial product or service [Project No. R411008] FTC to fully consider a particular (including content on an Internet comment. Commenters may choose not website operated for a commercial RIN 3084–AA96 to fill in one or more of those fields, but purpose.)’’ 2 if they do so, their comments may not The CAN–SPAM Act also provides Definitions, Implementation, and be considered. discretionary authority for the Reporting Requirements Under the The FTC Act and other laws the Commission to issue regulations CAN–SPAM Act Commission administers permit the concerning certain of the Act’s other 3 AGENCY: Federal Trade Commission collection of public comments to definitions and provisions. (FTC). consider and use in this proceeding as Specifically, the Commission is authorized to: ACTION: Advance notice of proposed appropriate. All timely and responsive public comments with all required • Modify the definition of the term rulemaking; request for public ‘‘transactional or relationship message’’ comment. fields completed, whether filed in paper or electronic form, will be considered by under the Act ‘‘to the extent that such SUMMARY: The FTC is requesting the Commission, and will be available modification is necessary to comment on various topics related to to the public on the FTC Web site, to the accommodate changes in electronic mail §§ 3(2)(c), 3(17)(B), 5(c)(1), 5(c)(2), and extent practicable, at http://www.ftc.gov. technology or practices and accomplish the purposes of [the] Act;’’ 4 13 of the Controlling the Assault of Non- As a matter of discretion, the FTC makes • Solicited Pornography and Marketing every effort to remove home contact Modify the 10-business-day period Act of 2003 (‘‘CAN–SPAM Act’’ or ‘‘the information for individuals from the prescribed in the Act for honoring a 5 Act’’). In addition, the FTC is requesting public comments it receives before recipient’s opt-out request; • Specify activities or practices as comment on topics relevant to certain placing those comments on the FTC aggravated violations (in addition to reports to Congress required by Web site. More information, including those set forth as such in § 5(b) of the additional provisions of the CAN– routine uses permitted by the Privacy CAN–SPAM Act) ‘‘if the Commission SPAM Act. Act, may be found in the FTC’s privacy determines that those activities or policy, at http://www.ftc.gov/ ftc/ DATES: Comments addressing the practices are contributing substantially privacy.htm. ‘‘National Do Not E-mail’’ Registry must to the proliferation of commercial be submitted on or before March 31, FOR FURTHER INFORMATION CONTACT: electronic mail messages that are 2004. Comments addressing any other Michael Goodman, Staff Attorney, (202) unlawful under subsection [5(a) of the aspect of the CAN–SPAM Act must be 326–3071; or Catherine Harrington- Act];’’ 6 and submitted on or before April 12, 2004. McBride, Staff Attorney, (202) 326– • Issue regulations to implement the ADDRESSES: Interested parties are 2452; Division of Marketing Practices, provisions of this Act.’’ 7 invited to submit written comments. Bureau of Consumer Protection, Federal In issuing this Advance Notice of Comments should refer to ‘‘CAN–SPAM Trade Commission, 600 Pennsylvania Proposed Rulemaking (‘‘ANPR’’), the Act Rulemaking, Project No. R411008’’ Avenue, NW., Washington, DC 20580. Commission initiates the mandatory to facilitate the organization of SUPPLEMENTARY INFORMATION: ‘‘primary purpose’’ rulemaking comments. A comment filed in paper proceeding by soliciting comment on form should include this reference both I. Background issues relating to that term and its use in the text and on the envelope, and The CAN–SPAM Act, which took in the Act. In addition, this notice should be mailed to the following effect on January 1, 2004, imposes a solicits comments on the several areas address: Federal Trade Commission, series of new requirements on the use of of discretionary regulation listed above. CAN–sySPAM Act, Post Office Box commercial electronic mail messages Finally, the Commission also seeks 1030, Merrifield, VA 22116–1030. (‘‘email’’). In addition, the Act gives Please note that courier and overnight federal civil and criminal enforcement 2 CAN–SPAM Act, § 3(2)(A) (emphasis supplied). deliveries cannot be accepted at this authorities new tools to combat 3 The Act authorizes the Commission to use notice and comment rulemaking pursuant to the address. Courier and overnight unsolicited commercial email (‘‘UCE’’ or Administrative Procedures Act, 5 U.S.C. 553. CAN– deliveries should be delivered to the ‘‘spam’’). The Act also allows state SPAM Act, § 13. following address: Federal Trade attorneys general to enforce its civil 4 CAN–SPAM Act, § 3(17)(B). Commission/Office of the Secretary, provisions, and creates a private right of 5 CAN–SPAM Act, § 5(c)(1)(A)–(C). Room 159–H, 600 Pennsylvania action for providers of Internet access 6 CAN–SPAM Act, § 5(c)(2). Avenue, NW., Washington, DC 20580. services. 7 CAN–SPAM Act, § 13(a). This provision excludes from the scope of its general grant of Comments containing confidential The CAN–SPAM Act directs the rulemaking authority § 4 of the Act (relating to material must be filed in paper form. Commission to issue regulations, not criminal offenses) and § 12 of the Act (expanding An electronic comment can be filed later than 12 months following the the scope of the Communications Act of 1934). In by (1) clicking on http:// enactment of the Act, ‘‘defining the addition, § 13(b) limits the general grant of rulemaking authority in § 13(a) by specifying that www.regulations.gov; (2) selecting relevant criteria to facilitate the the Commission may not use that authority to ‘‘Federal Trade Commission’’ at ‘‘Search determination of the primary purpose of establish ‘‘a requirement pursuant to § 5(a)(5)(A) to for Open Regulations;’’ (3) locating the an electronic mail message.’’1 The term include any specific words, characters, marks, or summary of this Notice; (4) clicking on ‘‘the primary purpose’’ is incorporated labels in a commercial electronic mail message, or to include the identification required by § 5(a)(5)(A) ‘‘Submit a Comment on this in the Act’s definition of the key term in any particular part of such a mail message (such Regulation;’’ and (5) completing the ‘‘commercial electronic mail message.’’ as the subject line or body).’’ Section 5(a)(5)(A) form. For a given electronic comment, Specifically, ‘‘commercial electronic provides that ‘‘it is unlawful for any person to any information placed in the following mail message’’ encompasses ‘‘any initiate the transmission of any commercial electronic mail message to a protected computer fields—‘‘Title,’’ ‘‘First Name,’’ ‘‘Last electronic mail message the primary unless the message provides clear and conspicuous Name,’’ ‘‘Organization Name,’’ ‘‘State,’’ identification that the message is an advertisement ‘‘Comment,’’ and ‘‘Attachment’’—will 1 CAN–SPAM Act, § 3(2)(C). or solicitation * * * ’’
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comment in this ANPR on a variety of messages’’ are those, the primary that, due to changing technology or topics relevant to certain reports that, purpose of which is either: practices, might become inappropriate pursuant to the mandate of the CAN– • To facilitate, complete, or confirm a to exclude from coverage of CAN– SPAM Act, the Commission must issue commercial transaction that the SPAM’s provisions as ‘‘transactional or within the coming two years. recipient has previously agreed to enter relationship messages.’’ into with the sender; II. Mandatory ‘‘Primary Purpose’’ • To provide warranty information, B. 10-Business-Day Period for Rulemaking product recall information, or safety or Processing Opt-Out Requests The CAN–SPAM Act mandates that security information with respect to a the FTC issue regulations ‘‘defining the commercial product or service used or Section 5(a)(4) of the CAN–SPAM Act relevant criteria to facilitate the purchased by the recipient; addresses the time within which a determination of the primary purpose of • To provide specified types of request to ‘‘opt-out’’ of receiving an electronic mail message.’’ This information with respect to a additional electronic mail messages mandate is integral to the Act’s subscription, membership, account, must be honored. Section 5(a)(4)(A) definition of ‘‘commercial electronic loan, or comparable ongoing prohibits senders and persons acting on mail message.’’ 8 Generally, the Act commercial relationship involving the their behalf from initiating the applies only to messages that fall within ongoing purchase or use by the recipient transmission of a commercial email this definition.9 Thus, the ‘‘primary of products or services offered by the message to any recipient who has opted purpose’’ regulation will elucidate how sender; 13 out of receiving their commercial email to determine whether a particular • To provide information directly messages. This section also provides message constitutes a ‘‘commercial related to an employment relationship that senders have ten (10) business days electronic mail message,’’ and is or related benefit plan in which the after receiving a recipient’s opt-out therefore subject to the CAN–SPAM recipient is currently involved, request to process it and put it into Act’s requirements and prohibitions. participating, or enrolled; or effect. Accordingly, the FTC seeks comment on • To deliver goods or services, Section 5(c)(1) gives the Commission how to determine an electronic mail including product updates or upgrades, the authority to issue regulations message’s primary purpose, including that the recipient is entitled to receive modifying the 10-business-day period comment on criteria that would under the terms of a transaction that the facilitate this determination. recipient has previously agreed to enter for processing recipients’ opt-out into with the sender. requests if the Commission determines III. Subjects for Discretionary Section 3(17)(B) gives the that a different time period would be Rulemaking Under the CAN–SPAM Act Commission the authority to modify the more reasonable ‘‘after taking into In addition to seeking comment on definition in § 3(17)(A) to ‘‘expand or account (A) the purposes of [subsection the mandatory ‘‘primary purpose’’ contract the categories of messages that 5(a)]; (B) the interests of recipients of rulemaking, the Commission also seeks are treated as ‘‘transactional or commercial electronic mail; and (C) the comment on the four areas of relationship messages’’ for the purposes burdens imposed on senders of lawful discretionary rulemaking that were of this Act to the extent that such commercial electronic mail.’’ 15 established in the Act. These four areas, modification is necessary to Accordingly, the FTC seeks comment on described in detail below, are: (1) The accommodate changes in electronic mail the reasonableness of the 10-business- Act’s definition of ‘‘transactional or technology or practices and accomplish day time period for processing opt-out relationship messages;’’ (2) the 10- the purposes of the Act.’’ 14 requests, and on whether a different business-day period for processing opt- Accordingly, the FTC seeks comment on time period would be more reasonable, out requests; (3) the Act’s enumeration the categories of ‘‘transactional or in view of the three considerations of ‘‘aggravated violations;’’ and (4) the relationship messages’’ identified in the enumerated in the statute and the implementation of the provisions of the Act, and on how changes in technology relative costs and benefits. CAN–SPAM Act generally. or practices might warrant C. Additional Aggravated Violations A. Transactional or Relationship modifications with respect to these Messages categories to accomplish the purposes of Section 5(c)(2) of the Act grants the the Act. The Commission seeks Commission rulemaking authority with The CAN–SPAM Act designates five comment on additional categories of broad categories of messages as respect to the list of ‘‘aggravated messages that changes in technology or violations’’ set forth in § 5(b) of the Act. ‘‘transactional or relationship practices might warrant excluding from 10 The practices listed in § 5(b) include messages.’’ The Act excludes these the definition of ‘‘commercial electronic email address harvesting and dictionary messages from its definition of messages’’ by designating them as attacks. The Act’s provisions relating to ‘‘commercial electronic mail ‘‘transactional or relationship 11 enforcement by the States and by message,’’ and thus excludes them messages.’’ The Commission also seeks from most of the Act’s substantive providers of Internet access service 12 comment on additional categories of requirements and prohibitions. messages that might warrant designation create the possibility of increased ‘‘Transactional or relationship as ‘‘transactional or relationship statutory damages if the court finds a messages’’ to accomplish the purposes defendant has engaged in one of the 8 CAN–SPAM, § 3(2)(C). of the Act. The Commission also seeks practices specified in § 5(b) while also 9 One provision, § 5(a)(1), which prohibits false or violating § 5(a). Specifically, misleading transmission information, applies comment on categories listed in § 3(17) equally to ‘‘commercial electronic mail messages’’ §§ 7(f)(3)(C) and (g)(3)(C) permit the and ‘‘transactional or relationship messages’; 13 The specified types of information are: court to increase a statutory damages otherwise, CAN–SPAM’s prohibitions and notification concerning a change in the terms or award up to three times the amount that requirements cover only ‘‘commercial electronic features; notification of a change in the recipient’s would have been granted without the mail messages.’’ standing or status; or regular periodic account 10 CAN–SPAM Act, § 3(17). statement or balance information. CAN–SPAM Act, commission of an aggravated 11 CAN–SPAM Act, § 3(2)(B). § 3(17)(A)(iii). 12 See note 9 above. 14 CAN–SPAM Act, § 3(17)(B). 15 CAN–SPAM Act, § 5(c)(1).
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violation.16 The Commission seeks the efforts of companies and individuals accounts.’’18 Moreover, § 9(b) provides comment on what activities and seeking to comply with the Act if the that ‘‘the Commission may establish and practices, if any, should be added to the Commission were to adopt rule implement the plan, but not earlier than list of aggravated violations under § 5(b) provisions clarifying the obligations of 9 months after the date of enactment of of the Act. multiple senders under the Act. this Act.’’ Thus, Congress has The third issue involves the authorized establishment of a National D. Implementation of Provisions of the requirement of § 5(a)(5)(A)(iii) of the Act CAN–SPAM Act Generally Do Not E-Mail Registry, but is interested for initiators of commercial electronic in learning of potential concerns about Section 13 of the Act details the mail to include in their messages, inter practicality, technical feasibility, fourth and final area of discretionary alia, ‘‘a valid physical postal address of privacy, and enforceability that such a rulemaking by the Commission under the sender.’’ Some companies and registry raises. The Commission issued the CAN–SPAM Act. Specifically, individuals seeking to comply with the a Request for Information (‘‘RFI’’) to § 13(a) provides that the Commission Act have sought guidance on what is potential vendors seeking information may issue regulations to implement the necessary for an address to meet the on how an effective registry might be provisions of the Act.17 Accordingly, the requirements of the Act. Some have structured,19 and is also seeking Commission seeks comment on any asked whether a valid physical postal comment in response to this Notice that additional regulations that may help address would include a Post Office box would assist it in preparing this report. implement the provisions of the Act. or commercial mail drop. The Since the effective date of CAN– Commission seeks comment on whether B. A System for Rewarding Those Who SPAM, several issues have repeatedly it would further the purposes of CAN– Supply Information About CAN–SPAM arisen that potentially may warrant SPAM or assist the efforts of companies Violations rulemaking under § 13. The first of these and individuals seeking to comply with involves a scenario where a sender of a the Act if the Commission were to adopt Section 11(1) of the Act requires the commercial email message seeks to rule provisions clarifying what Commission, on or before September 16, induce recipients to forward the constitutes a valid physical postal 2004, to submit a report to the Senate message to friends and acquaintances, address of the sender. Committee on Commerce, Science, and who, in turn, are urged to forward the There may be other issues of Transportation and the House of message. The Commission seeks interpretation or compliance that have Representatives Committee on Energy comment on whether it would further not yet come to the attention of the and Commerce setting forth a system for the purposes of CAN–SPAM or assist Commission but that might warrant rewarding those who supply the efforts of companies and individuals consideration for rulemaking under § 13 information about violations of the Act. seeking to comply with the Act if the of the Act. The Commission seeks The statute further specifies that the Commission were to adopt rule comment on any such issues, and report include ‘‘procedures for the provisions clarifying the legal solicits specific recommendations for Commission to grant a reward of not obligations of initiators and recipients proposed provisions that might further less than 20 percent of the total civil who forward messages in such the purposes of CAN–SPAM or assist penalty collected for a violation of the ‘‘forward-to-a-friend’’ scenarios. the efforts of companies and individuals Act to the first person that identifies the The second issue involves whether seeking to comply with the Act. person in violation of the Act, and several entities or persons supplies information that leads to the simultaneously could be considered the IV. Reports Required by CAN–SPAM successful collection of a civil penalty ‘‘sender’’ of a particular electronic mail CAN–SPAM requires the Commission by the Commission.’’ (The Act, message under the terms of the Act. For to prepare and submit to Congress four however, does not authorize the example, an email message that separate reports within the next two Commission to establish or implement promotes an upcoming conference and years: A report on establishing a such a reward system.) In addition, the also includes ads from the companies nationwide marketing Do Not E-mail statute requires that the report also sponsoring the conference may have registry to be submitted by June 16, include ‘‘procedures to minimize the more than one sender. A common 2004; a report on establishing a system burden of submitting a complaint to the concern regarding this type of message for rewarding those who supply Commission concerning violations of is whether it may be sent to a recipient information about CAN–SPAM [the CAN–SPAM] Act, including who has previously opted out of violations by September 16, 2004; a procedures to allow the electronic receiving messages from one of the report setting forth a plan for requiring submission of complaints to the sponsoring companies whose ad is in commercial email to be identifiable Commission.’’ Accordingly, the the message. The Commission seeks from its subject line by June 16, 2005; Commission seeks comment that would comment on whether it would further and a report on the effectiveness of assist it in preparing this report. the purposes of CAN–SPAM or assist CAN–SPAM by December 16, 2005. C. Labeling Commercial Electronic Mail 16 This heightened statutory damages calculation A. National Do Not E-Mail Registry also applies when a court finds that the defendant’s Section 9(a) of the CAN–SPAM Act Section 11(2) of the Act requires the violations of § 5(a) were committed ‘‘willfully and mandates a Commission report setting Commission to submit a report that sets knowingly.’’ CAN–SPAM Act, §§ 7(f)(3)(C) and forth a plan for requiring commercial (g)(3)(C). forth ‘‘a plan and timetable for email to be identifiable from its subject 17 As noted above, the Act expressly excludes establishing a nationwide marketing Do- from this grant of rulemaking authority the criminal Not-E-Mail registry.’’ The report is to line, or an explanation of any concerns provisions in § 4 and its amendment of the include ‘‘an explanation of any the Commission has that cause the Communications Act of 1934 in § 12. Section 13(b) Commission to recommend against the further limits the scope of this rulemaking authority practical, technical, security, privacy, by prohibiting the Commission from requiring any enforceability, or other concerns that the specific words, characters, marks, or labels in a Commission has regarding such a 18 CAN–SPAM Act, § 9(a). commercial email pursuant to § 5(a)(5)(A), or from 19 This RFI is available at: http://www.ftc.gov/ftc/ requiring the identification required by § 5(a)(5)(A) registry; and * * * an explanation of oed/fmo/procure/040224donotemailrfi.pdf. in any particular part of a commercial email, such how the registry would be applied with Responses to this RFI were due on or before March as the subject line or body. See note 7, above. respect to children with email 10, 2004.
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plan.20 This report is due on or before Mail Registry must be submitted on or As a matter of discretion, the FTC makes June 16, 2005. Accordingly, the before March 31, 2004. Written every effort to remove home contact Commission seeks comment on how comments on all other aspects of the information for individuals from the best to require that commercial email be CAN–SPAM Act must be submitted on public comments it receives before identifiable from its subject line, and on or before April 12, 2004. Comments placing those comments on the FTC concerns about implementing this type should refer to ‘‘CAN–SPAM Act Web site. More information, including of labeling requirement. In particular, Rulemaking, Project No. R411008’’ to routine uses permitted by the Privacy information is sought concerning the facilitate the organization of comments. Act, may be found in the FTC’s privacy feasibility, costs, and benefits of labeling A comment filed in paper form should policy, at http://www.ftc.gov/ftc/ commercial email. include this reference both in the text privacy.htm. and on the envelope, and should be Without limiting the scope of issues D. Effectiveness and Enforcement of the mailed to the following address: Federal on which it seeks comment, the CAN–SPAM Act Trade Commission, CAN–SPAM Act, Commission is particularly interested in Section 10 of the CAN–SPAM Act Post Office Box 1030, Merrifield, VA receiving comments on the following requires the Commission to submit a 22116–1030. Please note that courier questions. In responding to these report to Congress providing a detailed and overnight deliveries cannot be questions, include detailed, factual analysis of the effectiveness and accepted at this address. Courier and support whenever possible. enforcement of the Act and the need (if overnight deliveries should be delivered A. Criteria for Determining Whether any) for Congress to modify such to the following address: Federal Trade ‘‘The Primary Purpose’’ of an Electronic provisions. This report is due on or Commission/Office of the Secretary, Mail Message is Commercial before December 16, 2005, and must Room 159–H, 600 Pennsylvania include: Avenue, NW., Washington, DC 20580. If 1. The term ‘‘the primary purpose’’ • An analysis of the extent to which the comment contains any material for could be interpreted to mean that an technological and marketplace which confidential treatment is email’s commercial advertisement or developments, including changes in the requested, it must be filed in paper promotion is more important than all of nature of the devices through which (rather than electronic) form, and the the email’s other purposes combined. consumers access their electronic mail first page of the document must be Does this interpretation provide relevant messages, may affect the practicality clearly labeled ‘‘Confidential.’’21 criteria to help determine the primary and effectiveness of the Act; An electronic comment can be filed purpose of an email? Why or why not? • Analysis and recommendations by (1) clicking on http:// When an email has more than one concerning how to address commercial www.regulations.gov; (2) selecting purpose, what determines whether one email that originates in or is transmitted ‘‘Federal Trade Commission’’ at ‘‘Search purpose is more important than all other through or to facilities or computers in for Open Regulations;’’ (3) locating the purposes combined? other nations; and summary of this Notice; (4) clicking on 2. The term ‘‘the primary purpose’’ • Analysis and recommendations ‘‘Submit a Comment on this could be interpreted to mean that the concerning options for protecting Regulation;’’ and (5) completing the email’s commercial advertisement or consumers, including children, from form. For a given electronic comment, promotion is more important than any receiving and viewing commercial email any information placed in the following other single purpose of the email, but that is obscene or pornographic. fields—‘‘Title,’’ ‘‘First Name,’’ ‘‘Last not necessarily more important than all Accordingly, the Commission seeks Name,’’ ‘‘Organization Name,’’ ‘‘State,’’ other purposes combined. Does this comment on how the effectiveness and ‘‘Comment,’’ and ‘‘Attachment’’—will interpretation provide relevant criteria enforcement of the Act should be be publicly available on the FTC Web to help determine the primary purpose assessed, and on the specific areas of site. The fields marked with an asterisk of an email? Why or why not? When an inquiry set forth in § 10 of the Act. on the form are required in order for the email has more than one purpose, what FTC to fully consider a particular determines whether one purpose is V. Communications by Outside Parties comment. Commenters may choose not more important than any other purpose? to Commissioners or Their Advisors to fill in one or more of those fields, but 3. In other contexts, the FTC has Written communications and if they do so, their comments may not stated that marketing material is to be summaries or transcripts of oral be considered. judged by the net impression that the communications respecting the merits The FTC Act and other laws the material as a whole makes on the of this proceeding from any outside Commission administers permit the reasonable observer. The ‘‘net party to any Commissioner or collection of public comments to impression’’ standard has been used to Commissioner’s advisor will be placed consider and use in this proceeding as assess the meaning of an advertisement on the public record. See 16 CFR appropriate. All timely and responsive and the adequacy of disclosures. This 1.26(b)(5). public comments with all required standard takes into account placement fields completed, whether filed in paper of disclosures within the marketing VI. Invitation to Comment or electronic form, will be considered by material, the proximity of disclosures to All persons are hereby given notice of the Commission, and will be available the relevant claims, the prominence of the opportunity to submit written data, to the public on the FTC Web site, to the the disclosures, and whether other parts views, facts, and arguments addressing extent practicable, at http://www.ftc.gov. of the marketing material distract the issues raised by this Notice. Written attention from the disclosure. Should comments on the National Do Not E- 21 Commission Rule 4.2(d), 16 CFR 4.2(d). The this ‘‘net impression’’ analysis be comment must be accompanied by an explicit applied to determining whether the request for confidential treatment, including the 20 Section 11(2) expressly contemplates that the factual and legal basis for the request, and must primary purpose of an email is a means for making commercial electronic mail identify the specific portions of the comment to be commercial advertisement or identifiable from its subject line should be ‘‘by withheld from the public record. The request will promotion? Why or why not? Are there means of compliance with Internet Engineering be granted or denied by the Commission’s General considerations unique to electronic mail Task Force Standards, the use of the characters Counsel, consistent with applicable law and the ‘‘ADV’’ in the subject line, or other comparable public interest. See Commission Rule 4.9(c), 16 CFR that would influence the application of identifier.’’ 4.9(c). such analysis, and if so, how?
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4. The term ‘‘the primary purpose’’ needed to prevent evasion of the Act’s sender are considered transactional or could be interpreted to mean that a requirements and prohibitions? relationship messages under the Act. commercial advertisement or promotion 3. Email messages that provide Should the Commission modify or in an email is more than incidental to warranty information, product recall elaborate on this definition? Why or the email. Does this interpretation information, or safety or security why not? provide relevant criteria to help information with respect to a 9. Some transactional or relationship determine ‘‘the’’ primary purpose of an commercial product or service used or messages may also advertise or promote email? Why or why not? purchased by the recipient are a commercial product or service. In 5. In determining whether a considered transactional or relationship such a case, is ‘‘the primary purpose’’ of commercial advertisement or promotion messages under the Act. Should the the message relevant? If so, what criteria in an email is the primary purpose of Commission modify or elaborate on this should determine what is ‘‘the primary the email, one approach could be to definition? Why or why not? purpose’? Should such messages be base the analysis on whether the 4. Email messages that provide notice deemed to be commercial email commercial aspect of the email concerning a change in the terms or messages? Should they be deemed financially supports the other aspects of features of a subscription, membership, transactional or relationship messages? the email. For example, an electronic account, loan, or comparable ongoing Why? newsletter may be funded by advertising commercial relationship involving the within the newsletter. Such advertising ongoing purchase or use by the recipient C. Modifying the 10–Business-Day Time arguably would not constitute the of products or services offered by the Period for Processing Opt-Out Requests primary purpose of the newsletter. Does sender are considered transactional or 1. Is ten (10) business days an the issue of whether the commercial relationship messages under the Act. appropriate deadline for acting on an aspect provides the financial support for Should the Commission modify or opt-out request by deleting the non-commercial content provide elaborate on this definition? Why or requester’s email address from the relevant criteria to help determine the why not? sender’s email directory or list? Why or primary purpose of an email? Why or 5. Email messages that provide why not? If not, what time limit would notification of a change in the why not? Does it matter what the overall be appropriate? Why? recipient’s standing or status with purpose of the newsletter is? Why or 2. What procedures are required to respect to a subscription, membership, why not? Is this an appropriate way to delete a person’s email address from the account, loan, or comparable ongoing approach the question of whether an sender’s email directory or list? What commercial relationship involving the email’s primary purpose is commercial? reasons, if any, prevent such deletion in ongoing purchase or use by the recipient Why or why not? a time period shorter than ten (10) 6. Should the identity of an email’s of products or services offered by the business days? What burdens, including sender affect whether or not the primary sender are considered transactional or costs, would be borne by senders if the purpose of the sender’s email is a relationship messages under the Act. time period were shortened? What commercial advertisement or Are the terms used in this subsection of benefits to consumers would result from promotion? Why or why not? For the Act (§ 3(17)(A)(iii)) clear, or is a time deadline shorter than ten (10) example, if a professional sports league further clarification needed to prevent business days for effectuating an opt-out sends email promoting its involvement evasion of the Act’s requirements and request? with a charitable organization, should prohibitions? 3. What costs are associated with that email be considered to have a 6. Email messages that provide, at deleting a person’s email address from commercial ‘‘primary purpose’’ under regular periodic intervals, account a sender’s email directory or list? What the Act based on the league’s ‘‘for- balance information or other types of costs does the recipient bear from profit’’ status? account statements with respect to a 7. Are there other ways to determine subscription, membership, account, unwanted electronic mail during the whether a commercial advertisement or loan, or comparable ongoing period from submission of the request to promotion in an email is the primary commercial relationship involving the the effectuation of that request? purpose of the email? Do these ongoing purchase or use by the recipient 4. What currently is the average time approaches provide relevant criteria to of products or services offered by the to create and implement procedures to help determine the primary purpose of sender are considered transactional or delete a person’s email address from a an email? Why or why not? relationship messages under the Act. sender’s email directory or list following Should the Commission modify or that person’s opt-out request? What B. Modifying What Is a ‘‘Transactional elaborate on this definition? Why or factors affect the length of time or Relationship Message’’ why not? necessary to create and implement these 1. Have any changes in electronic 7. Email messages that provide procedures? mail technology or practices occurred information directly related to an 5. What currently is the average time since the CAN–SPAM Act became employment relationship or related in which a request to be removed from effective on January 1, 2004, that would benefit plan in which the recipient is an email list is processed once these necessitate modification of the CAN– currently involved, participating, or procedures have been created and SPAM Act’s definition of ‘‘transactional enrolled are considered transactional or implemented? What factors affect the or relationship message’’ to accomplish relationship messages under the Act. length of time necessary to process such the purposes of the Act? Should the Commission modify or a request? 2. Email messages that facilitate, elaborate on this definition? Why or 6. What is the industry standard, if complete, or confirm a commercial why not? any, regarding the time frame to create transaction that the recipient has 8. Email messages that deliver goods and implement procedures for previously agreed to enter into with the or services, including product updates processing opt-out requests? What is the sender are considered transactional or or upgrades, that the recipient is industry standard, if any, regarding the relationship messages under the Act. entitled to receive under the terms of a time frame to process opt-out requests Are the terms ‘‘facilitate, complete, or transaction that the recipient has once procedures have been created and confirm’’ clear, or is further clarification previously agreed to enter into with the implemented?
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7. How are lists of email addresses determined to be the ‘‘sender’’? If a disclosures, if any, should be required? used for electronic mail marketing consumer previously has exercised his Why? Should the Commission maintained, distributed, and used? or her rights under § 5(a)(3) by ‘‘opting distinguish between different types of What impact, if any, do the out’’ from receiving commercial e-mail ‘‘forwarding’’ campaigns? Why or why maintenance, distribution, and use of from one of the companies advertised in not? these lists have on the time it takes to the e-mail example above, has § 5(a)(4) g. What are the costs and benefits of effectuate an opt-out request? of the Act been violated? If so, by forwarded commercial e-mail 8. How do the size and structure of whom? campaigns to consumers? To the sender’s business, the use of third- 2. Should the Commission use its businesses? Are the costs and benefits to party e-mailers, and the manner in authority in § 13 to issue regulations consumers and industry different for which opt-out requests are received clarifying who meets the definition of forwarded commercial e-mail affect the time it takes to effectuate an ‘‘sender’’ under the Act? If so, how? If campaigns than for other types of opt-out request? not, why not? unsolicited commercial e-mail? Why or 3. The Act defines ‘‘initiate’’ to mean why not? D. Identifying Additional ‘‘Aggravated originate or transmit, or procure the 4. Section 5(a)(5)(A)(iii) requires the Violations’’ origination or transmission of, a disclosure of ‘‘a valid physical postal 1. Section 5(c)(2) of the Act gives the message. In turn, the term ‘‘procure’’ address of the sender’’ in each Commission authority to ‘‘specify means to pay, provide consideration, or commercial electronic mail message. additional activities or practices to ‘‘induce’’ a person to initiate a message How should this required disclosure be which [§ 5(b)] applies if the Commission on one’s behalf. interpreted? Should a PO Box be determines that those activities or a. Do ‘‘forward-to-a-friend’’ and considered a ‘‘valid physical postal practices are contributing substantially similar marketing campaigns that rely address’’? Why or why not? Should a to the proliferation of commercial on customers to refer or forward commercial mail drop be considered a electronic mail messages that are commercial e-mails to someone else fall ‘‘valid physical postal address’’? Why or unlawful under [§ 5(a)].’’ Section 5(b) within the parameters of ‘‘inducing’’ a why not? identifies four ‘‘aggravated violations.’’ person to initiate a message on behalf of 5. Section 5(a)(1), regarding false or What additional activities or practices, someone else? misleading transmission information, if any, should be treated as ‘‘aggravated b. Are there different types of such addresses information displayed in a violations’’ under the Act? Why should ‘‘forwarding’’ marketing campaigns? message’s ‘‘from’’ line. Is the Act these activities or practices be What forms do these campaigns take? sufficiently clear on what information considered ‘‘aggravated violations’? c. Should these marketing campaigns may or may not be disclosed in the How do these activities or practices have to comply with the Act? Why or ‘‘from’’ line? What ‘‘from’’ line contribute substantially to the why not? If so, who should be information should be considered proliferation of commercial e-mail that considered a person who ‘‘initiates’’ the acceptable under the Act? Why? If a violates § 5(a)? Do these activities or message when one recipient forwards sender’s e-mail address does not, on its practices have any use other than the message to another person? Who face, identify the sender by name, does initiating e-mail that violates the Act? should be required to provide an ‘‘opt- that e-mail address comply with 2. Are there new technologies that out’’ mechanism for the message? § 5(a)(1)? have been developed or are in Should each person who forwards the F. National Do Not E-Mail Registry development that would contribute message be required to comply with the Report substantially to the proliferation of Act? Should the original sender of the commercial e-mail that is unlawful message remain liable for compliance 1. The Commission is required to under § 5(a)? If so, what are they? with the Act after the original recipient write a report setting forth a plan and Should they be added to the list of forwards the message to someone else? timetable for establishing a nationwide ‘‘aggravated violations’’ under § 5(b)? Why or why not? marketing Do Not E-mail Registry, Why or why not? What are the costs and d. Do the Act’s requirements and including an explanation of any benefits to industry in implementing prohibitions reach e-mail messages practical, technical, security, privacy, procedures to overcome these containing advertisements sent by using enforceability, or other concerns technologies? What are the costs and a Web site that urges or enables regarding such a registry, and an benefits to consumers? Do these new individuals to e-mail articles or other explanation of how the registry would technologies have any use other than materials to friends or acquaintances? be applied with respect to children with initiating e-mail that violates the Act? How, if at all, does the Act apply to this email accounts. The Commission issued situation when recipients have a Request for Information (‘‘RFI’’) to E. Issuing Regulations Implementing the previously ‘‘opted-out’’ of receiving e- potential vendors seeking information Act mails from the advertised entities? on how an effective registry might be 1. Section 3(16) of the Act defines e. Should unsolicited commercial e- structured, and is also seeking when a person is a ‘‘sender’’ of mail campaigns that rely on having information from the public in this commercial e-mail. The definition customers refer or forward the e-mail to Notice. What practical, technical, appears to contemplate that more than other parties be treated differently from security, privacy, enforceability, and one person can be a ‘‘sender’’ of other unsolicited commercial e-mail? other concerns exist with respect to commercial e-mail; for example, an e- Why or why not? If there are different establishment of such a registry? Can mail containing ads for four different types of these campaigns, should the these concerns be overcome so that a companies. In such a case, who is the different types be treated differently? registry would be workable and ‘‘sender’’ of the e-mail? What costs or Why or why not? effective? If so, what might be an burdens may be imposed on such f. If referrals or forwarding of e-mails appropriate plan and timetable for entities if all are determined to be should be distinguished from other establishing a registry? Is such a registry ‘‘senders’’? What costs or burdens may types of e-mail, how should they be a practical, efficient, and workable be imposed on consumers if only the distinguished? What, if any, restrictions method of solving the spam problem? entity originating the e-mail is should be placed on them? Why? What What are the relative costs and benefits?
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2. How could such a registry be supply, and in what format? Would I. Study of Subject Line Labeling structured and applied to best protect such information likely be received in a children with email accounts? Could form and manner that would make it 1. Prior to the enactment of the CAN– such a registry be effective as a means useful in an enforcement action to prove SPAM Act, many states required that to protect children from inappropriate violations of the Act? unsolicited non-adult commercial email spam? have an ‘‘ADV’’ label. How was this 6. How successful have been the provision enforced by the States? What G. System for Rewarding Those Who efforts of private entities or others to obstacles to enforcement did the States Supply Information About CAN–SPAM establish and operate reward programs encounter? What, if any, limitations Violations similar to the one contemplated in the were found in these laws that the 1. What kinds of information would Act? Have such reward programs been Commission should consider addressing be most useful in facilitating successful in eliciting information in the required report regarding subject enforcement of the Act? What kinds of otherwise unavailable to support line labeling? enforcement or other legal action? Have information can the FTC reasonably 2. How effective is labeling? expect to receive? Would such such reward programs been successful information likely be received in a form in achieving the goal of reducing or 3. Should the Commission and manner that would make it useful deterring certain conduct? recommend that all unsolicited non- in an enforcement action to prove 7. How might the Commission adult commercial email be labeled violations of the Act? How would this implement ‘‘procedures to minimize the ‘‘ADV ’’? Why or why not? information advance the Commission’s burden of submitting a complaint to the 4. Would labeling, as part of a regime ability to identify and locate people who Commission concerning violations of that includes other technological or law violate the Act? How could a system for [the CAN–SPAM Act], including enforcement approaches, be an rewarding those who supply procedures to allow the electronic appropriate and effective tool to help information about violations of the Act submission of complaints to the control spam? Why or why not? be structured? What are the relative Commission,’’ as provided by the Act? costs and benefits? 5. What are the costs and benefits to 2. What procedures would be H. Study of Effects of the CAN–SPAM industry of labeling? necessary to determine who is ‘‘the first Act 6. What are the costs and benefits to person that identifies the person in consumers of labeling? 1. The Commission is required to violation of the Act, and supplies 7. If the Commission recommends information that leads to the successful write a report providing a detailed analysis of the effectiveness and that non-adult commercial email have collection of a civil penalty by the an ‘‘ADV’’ label, should it also Commission,’’ as specified by the Act? enforcement of the provisions of the Act and the need (if any) for the Congress to recommend that senders be allowed to What other procedures would be provide additional explanatory necessary to implement a reward modify such provisions. What measures of the effectiveness of the Act should information in the subject line; e.g., system, e.g., to resolve disputes among ‘‘ADV: Automobiles’’? Why or why not? competitors seeking to be ‘‘the first the Commission consider? person that identifies the person in 2. Are there any developments likely J. Regulatory Flexibility Act violation of the Act’’? to reach the market in the next two 3. Is the phrase ‘‘identifies the person years that are likely to affect the 1. What burden to small business does in violation of the Act’’ sufficiently clear effectiveness of the Act? How should the Act impose in the Act’s to provide a bright line with respect to the Commission monitor these requirements that certain disclosures be who will be entitled to a reward? If not, developments? made in commercial electronic mail how can deciding this issue be made messages? How, if at all, may the 3. This report must include an more certain? burdens associated with required 4. How would the prospect of analysis and recommendations disclosures be minimized? receiving a portion of civil penalties concerning how to address commercial email that originates in or is transmitted 2. Does the Act impose any disparate collected by the FTC affect existing impact on small businesses? If so, how incentives for persons who have through or to facilities or computers in other nations, including initiatives or may this disparate impact be information about the identity of minimized? spammers to come forward with such policy provisions that the Federal information? government could pursue through 3. Describe and, where feasible, 5. How would a reward system affect international negotiations, fora, estimate the number of small entities to the behavior of ISPs and other industry organizations, or institutions. Given the which the Act applies. ease of falsifying header information, participants with regard to initiating VII. Conclusion and conducting investigations of how can the Commission determine the spammers, and other approaches to extent to which email originates in or is The Commission will proceed from addressing unsolicited commercial transmitted through or to facilities or this ANPR with proposed rulemaking email? Under what circumstances, if computers in other nations? How and drafting of required reports. any, would ISPs and other industry should the Commission conduct this Evaluation of comments submitted in participants likely submit information analysis? response to this ANPR will comprise under a proposed reward system? What 4. This report must include an part of the Commission’s rulemaking factors would be relevant to an ISP’s analysis and recommendations and report-drafting processes. choice whether to proceed under a concerning options for protecting By direction of the Commission. reward system as opposed to proceeding consumers, including children, from the under the private right of action for ISPs receipt and viewing of commercial Donald S. Clark, created by § 7(g) of the Act? Specifically, email that is obscene or pornographic. Secretary. what kind of information would ISPs How should the Commission conduct [FR Doc. 04–5500 Filed 3–10–04; 8:45 am] and other industry participants likely this analysis? BILLING CODE 6750–01–P
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Part VI
Department of the Interior Bureau of Indian Affairs
25 CFR Part 243 Reindeer in Alaska; Proposed Rule
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DEPARTMENT OF THE INTERIOR granted under 25 U.S.C. 500k and Cir. 1997), cert. denied, 523 U.S. 1117 delegated to the Assistant Secretary— (1998). Accordingly, it is necessary in Bureau of Indian Affairs Indian Affairs by 209 DM 8.1. these regulations to draw a distinction between Alaskan reindeer, owned by Background 25 CFR Part 243 Alaska Natives or the United States The Reindeer Act of September 1, RIN 1076–AE37 Government, and imported reindeer, 1937, 50 Stat. 900 (25 U.S.C. 500–500n) which are not descended from those Reindeer in Alaska authorizes and directs the Secretary of present in Alaska at the time of the the Interior to organize and manage the passage of the Reindeer Act. The former AGENCY: Bureau of Indian Affairs, reindeer industry or business in Alaska are subject to the restrictions on Interior. in such a manner as to establish and alienation imposed by 25 U.S.C. 500i, ACTION: Notice of proposed rulemaking. maintain a complete and self-sustaining whereas the latter are not. economy for the Natives of Alaska, and Although the BIA has for many years SUMMARY: The Bureau of Indian Affairs to encourage and develop Alaska Native under the authority of 25 U.S.C. 500(g) is promulgating these regulations activity and responsibility in all administered a program under which relating to the Alaska Native reindeer branches of the industry or business (25 government-owned reindeer were industry to meet the needs of Alaska U.S.C. 500 and 500f). To preserve the loaned to individual Native herders to Native Reindeer owners. These Native character of the reindeer industry help them establish or increase the size regulations would also apply to non- in Alaska, the sale or transfer of Native of their private herds, it has been Natives who own, or want to own, or government-owned reindeer or determined that more formal guidelines reindeer in Alaska. They will provide reindeer products is allowed only under for the operation of such loan program Alaska Native reindeer owners, regulations to be developed by the need not be provided for in these government officials, and those doing Secretary (25 U.S.C. 500i). regulations. As a result of animals business with them, with procedures For many years the Bureau of Indian running off to join wild caribou herds and policies for administration of the Affairs (BIA) used an informal permit that have invaded the grazing range of reindeer industry in Alaska. system in conjunction with the the domesticated herds, the substantial This proposed rule also contains infrequent sale of live reindeer. majority of the government-owned Paperwork Reduction Act information, Contracts for the sale of meat (and more reindeer in the hands of Native which we are submitting to the Desk recently velvet antler) were seldom borrowers have been lost. Because the Officer for the Department of the reviewed. A May 23, 1979, opinion by BIA has no means to rebuild its stock of Interior, OIRA/OMB for review and the Assistant Regional Solicitor, Alaska, reindeer available for loan, it has been approval. concluded that 25 U.S.C. 500i determined that it is not feasible to prohibited transfer of ownership of DATES: Comments on the proposed rule continue the reindeer loan program. must be received on or before June 9, reindeer or reindeer products to anyone 2004. Comments on the information not an Alaska Native, unless such Procedural Requirements collection activities should be received transfers were carried out in accordance with regulations adopted by the Regulatory Planning and Review close to April 12, 2004, in order to (Executive Order 12866) receive maximum consideration. Secretary. A subsequent opinion concluded that, in the absence of such In accordance with the criteria in ADDRESSES: Public comments on this regulations, BIA officials had no legal Executive Order 12866, this rule is not proposed rule should be addressed to: authority to permit such sales. A a significant regulatory action. OMB Alaska Regional Director, Attn: Warren primary purpose of the regulations makes the final determination under Eastland, Bureau of Indian Affairs, P.O. being proposed is to prescribe the Executive Order 12866. Box 25520 (3rd floor, Federal Building), procedures by which valid transfers can (a) This rule will not have an annual Juneau, Alaska 99802–5520. be carried out. A secondary purpose is economic effect of $100 million or You may submit comments to ratify or validate past transfers that adversely affect an economic sector, concerning the information collection to have occurred without benefit of productivity, jobs, the environment, or the Desk Officer for the Department of authorizing regulations. other units of government. A cost- the Interior, OIRA/OMB, by For better than five decades after benefit and economic analysis is not telefacsimile at (202) 395–6566 or by e- _ enactment of the 1937 Reindeer Act, it required. The scale of reindeer herding mail to: OIRA [email protected]. was presumed that it established a in Alaska is such that the value of the Please send a copy of your comments government and Native monopoly on entire industry, including animals and on the information collection to the the ownership of live reindeer in infrastructure, is less than $100 million. Bureau of Indian Affairs at the location Alaska. However, litigation more (b) This rule will not create specified in the ADDRESSES section. Note recently arose over the right of a non- inconsistencies with other agencies’ that requests for comments on the rule Native to import into Alaska reindeer actions. The Bureau of Indian Affairs is and the information collection are obtained from external sources. The the sole agency tasked with separate. Reindeer Herders Association administration of the Reindeer Act of FOR FURTHER INFORMATION CONTACT: challenged the Bureau of Indian Affairs’ 1937. Warren Eastland, Wildlife Biologist, 1989 interpretation of the Act, which (c) This rule will not materially affect 907–586–7321. had found that non-Native importation entitlements, grants, user fees, loan SUPPLEMENTARY INFORMATION: These of non-Alaska reindeer was not programs, or the rights and obligations proposed regulations will have no prohibited. Although that BIA of their recipients. There are no impact on the reindeer grazing interpretation was initially disfavored, entitlements, grants, fees, loan programs regulations administered by the Bureau in decisions by the Interior Board of or other obligations associated with the of Land Management, which are found Indian Appeals and the Federal District administration of the Reindeer Act of at 43 CFR part 4300. Court, it was eventually approved and 1937. This proposed rule is published by reinstated by Circuit Court of Appeals in (d) This rule will not raise novel, legal authority of the Secretary of the Interior Williams v. Babbitt, 115 F.3d 657 (9th or policy issues. This rule merely
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formalizes commonly accepted practice reindeer industries, and protects the Civil Justice Reform (Executive Order for the administration of the Bureau of industry from illegal competition from 12988) Indian Affairs’ responsibility under the non-Natives. Reindeer Act of 1937. In accordance with Executive Order Unfunded Mandates Reform Act 12988, the Office of the Solicitor has Regulatory Flexibility Act In accordance with the Unfunded determined that the rule does not The Department of the Interior Mandates Reform Act (2 U.S.C. 1501 et unduly burden the judicial system and certifies that this rule will not have a seq.): meets the requirements of sections 3(a) significant economic effect on a (a) This rule will not ‘‘significantly or and 3(b)(2) of the Order. The proposed substantial number of small entities as uniquely’’ affect small governments. A regulations do not involve court action, defined under the Regulatory Flexibility Small Government Agency Plan is not nor do they provide significant use of Act (5 U.S.C. 601 et seq.). The proposed required. The administration of the enforcement and judicial action. regulations do not require any Reindeer Act does not affect any permitting or data gathering from Native governmental agency, but clarifies for Paperwork Reduction Act reindeer owners, and only a very few Indian Reorganization Act councils the regulatory requirements for Alaska The previous OMB Control Number, non-Natives who wish to acquire Alaska 1076–0047, covered the loan of reindeer reindeer will be affected, and then only reindeer sales to Natives and non- Natives. to Alaska Natives who wished to start by limited data gathering and not in an their own herd of reindeer or to improve economic way. (b) This rule will not produce a Federal mandate of $100 million or their existing herd. The collection was Small Business Regulatory Enforcement greater in any year; i.e., it is not a allowed to expire because many Fairness Act (SBREFA) ‘‘significant regulatory action’’ under reindeer ran off to join the caribou herds that traveled into the area where the This rule is not a major rule under 5 the Unfunded Mandates Reform Act. federal reindeer were located. Therefore, U.S.C. 804(2), the Small Business The entire reindeer industry in Alaska, a sufficient number of reindeer could Regulatory Enforcement Fairness Act. including the value of all the animals This rule: and the supporting infrastructure, does not be maintained in the reindeer loan (a) Does not have an annual effect on not add up to $100 million. program to meet the minimum PRA transactions per year. This proposed the economy of $100 million or more. Takings Implications (Executive Order The entire reindeer industry in Alaska, 12630) regulation does require an information collection under the Paperwork including the value of all the animals In accordance with Executive Order and the supporting infrastructure, does Reduction Act. The information will be 12630, the rule does not have significant used to monitor the use and sale of not add up to $100 million. takings implications. A takings (b) Will not cause a major increase in Alaskan reindeer. The information we implication assessment is not required. now require under the proposed costs or prices for consumers, The proposed regulations do not involve individual industries, Federal, State, or regulations is limited to names and taking issues. They do clarify under addresses of non-Natives who wish to local government agencies, or what conditions non-Natives may possess Alaska reindeer and to reports geographic regions. These regulations acquire Alaska reindeer, do not affect of reindeer disposition and yearly only affect the administration of the the ownership of Alaska reindeer by reports. The reporting or application Reindeer Act of 1937 and do not affect Natives, and are not expected to affect the value of, or prices received for Alaska reindeer currently owned by hourly burden varies from 5 minutes to Alaska reindeer. non-Natives. 20 minutes, depending upon the kind of (c) Does not have significant adverse report or application used. The special effects on competition, employment, Federalism (Executive Order 13132) use and sale reports are submitted investment, productivity, innovation, or In accordance with Executive Order annually to BIA staff. Researchers at the the ability of U.S.-based enterprises to 13132, the rule does not have significant University of Alaska, who study the compete with foreign-based enterprises. Federalism effects. A Federalism Alaska Native reindeer, submit their The administration of the Reindeer Act assessment is not required. The findings to BIA staff in lieu of a generic allows Alaska Natives to compete, proposed regulations do not involve any report. The table below explains the should they wish, with other nations’ aspect of Federal-State relations. collection activity.
Time per Estimate Cost per Federal × × cost @ Form form Time number of users cost per form no $32.75/ (minutes) form of users hour
Special use permit display ...... 10 2 × 10 = 20 minutes ...... $1.67 $3.34 $10.92 Reindeer sale permit ...... 10 8 × 10 = 80 minutes ...... 1.67 13.36 43.68 Annual report form ...... 10 2 × 10 = 20 minutes ...... 1.67 3.34 10.92 8 × 5 = 40 minutes ...... 0.84 6.72 21.84 Generic report ...... 15–20 1 × 20 =20 minutes ...... 3.34 3.34 10.92
Subtotals Permit ...... 100 min ...... 16.70 54.60 Report ...... 80 min ...... 13.40 43.68
Totals ...... 180 = 3 hours ...... 30.10 98.28
We invite your comments on the to perform agency functions adequately; burden is accurate; whether the agency necessity of the information collection whether the estimate of the public can improve the quality, utility, and
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clarity of the information requested; if Effects on the Nation’s Energy Supply we withhold their home address from the use of automated, electronic, (Executive Order 13211) the rulemaking record. We will honor mechanical or other technological In accordance with Executive Order the request to the extent allowable by collection techniques would reduce the 13211, this regulation does not have a law. There also may be circumstances in time needed for public response; and if significant effect on the nation’s energy which we would withhold from the our methodology and assumptions are supply, distribution, or use. The rulemaking record a respondent’s valid. proposed regulations pertain only to identity, as allowable by law. Documentation has been prepared who and under what conditions may If you wish us to withhold your name and submitted to the Office of own Alaska reindeer. There are no and/or address, you must state this Information and Regulatory Affairs, energy issues involved. prominently at the beginning of your Office of Management and Budget, for comment. However, we will not review and approval of the information Clarity of This Regulation consider anonymous comments. We request. Executive Order 12866 requires each will make all submissions from Please note that we will not require agency to write regulations that are easy organizations or businesses, and from nor sponsor a request for information, to understand. We invite your individuals identifying themselves as and you need not respond to a request comments on how to make this rule representatives or officials of that does not have a valid OMB Control easier to understand, including answers organizations or businesses, available Number. to questions such as the following: for public inspection in their entirety. (1) Are the requirements in the rule We request comments on the List of Subjects in 25 CFR Part 243 clearly stated? information collection request. You may (2) Does the rule contain technical Indians—Alaska natives, Livestock— submit them to the location in the language or jargon that interferes with Reindeer. ADDRESSES section. Please note that its clarity? these comments are separate from any Dated: February 27, 2004. (3) Does the format of the rule comments on the rule. Your comments David W. Anderson, (grouping and order of sections, use of will be available for public review at the Assistant Secretary—Indian Affairs. headings, paragraphing, etc.) aid or location in the ADDRESSES section. If you reduce its clarity? For the reasons discussed in the wish your name or address withheld, (4) Would the rule be easier to preamble, the Bureau of Indian Affairs you must state this prominently at the understand if it were divided into more proposes to add 25 CFR part 243 to read beginning of your comment. We will (but shorter) sections? (A ‘‘section’’ as follows: honor your request to the extent allowed appears in bold type and is preceded by by law. the symbol ‘‘§ ’’ and a numbered PART 243—REINDEER IN ALASKA National Environmental Policy Act heading; for example, § 243.2 What terms do I need to know?) Sec. We have analyzed this rule in (5) Is the description of the rule in the 243.1 What is the purpose of this part? 243.2 What terms do I need to know? accordance with the criteria of the SUPPLEMENTARY INFORMATION section of 243.3 Delegation of authority. National Environmental Policy Act and the preamble helpful in understanding 516 DM. This rule does not constitute a 243.4 Who can own or possess Alaskan the proposed rule? reindeer? major Federal action significantly (6) What else could we do to make the 243.5 Who can own or possess imported affecting the quality of the human rule easier to understand? reindeer, and what limitations apply? environment. An environmental Send a copy of any comments that 243.6 Which sales or transfers do not assessment is not required. The concern how we could make this rule require a permit? proposed regulations do not constitute easier to understand to: Office of 243.7 How can a non-Native acquire live any irretrievable commitment of Regulatory Affairs, Department of the reindeer? resources, nor will they permit Interior, Room 7229, 1849 C Street, 243.8 What penalties apply to violations of this part? environmental activities that are not NW., Washington, DC 20240. You may otherwise regulated. The proposed 243.9 Who may inherit live Alaskan also e-mail the comments to this reindeer and by what means? regulations are merely administrative address: [email protected] 243.10 Information collection. matters pertaining to the Reindeer Act Public Comment Solicitation 243.11 Are transfers of Alaskan reindeer of 1937. that occurred before issuance of this part Government-to-Government If you wish to comment on this valid? 243.12 Are Alaskan reindeer trust property Relationship With Tribes proposed rule, you may mail or hand- deliver your written comments to the owned by the U.S. Government for the In accordance with the President’s person listed in the ADDRESSES section benefit of Alaska Natives? memorandum of April 29, 1994, of this document. Submissions by 243.13 Who may appeal an action under this part? ‘‘Government-to-Government Relations facsimile should be sent to (907) 586– with Native American Tribal 7120. We cannot accept electronic Authority: Sec. 12, 50 Stat. 902; 48 U.S.C. Governments’’ (59 FR 22951), Executive submissions at this time. All written 250k. Interpret or apply sec. 3, 50 Stat. 900. Order 13175, and 512 DM 2, we have comments received by the date § 243.1 What is the purpose of this part? evaluated potential effects on federally indicated in the DATES section of this recognized Indian tribes and have document will be carefully assessed and The Department’s policy is to determined that there are no potential fully considered prior to publication of encourage and develop the activity and effects. The proposed regulations affect a final rule. responsibility of Alaska Natives in all only individuals or groups of Our practice is to make comments, branches of the reindeer industry or individuals outside of tribal including names and home addresses of business in Alaska, and to preserve the governments, and the restrictive respondents, available for public review Native character of that industry or measures contained affect only non- during regular business hours. business. This part contains Natives. Individual respondents may request that requirements governing acquiring and
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transferring reindeer and reindeer § 243.4 Who can own or possess Alaskan (1) Distinguish the imported reindeer products in Alaska. reindeer? from the Alaskan reindeer by applying (a) Only Alaska Natives, organizations a distinctly different permanent earmark § 243.2 What terms do I need to know? of Alaska Natives, or the United States or tattoo on all imported reindeer; and Act means the Reindeer Industry Act for the benefit of these Natives, can own (2) Register the earmark or tattoo with of September 1, 1937, 50 Stat. 900 (25 Alaskan reindeer in Alaska. the State Division of Agriculture book of U.S.C. 500 et seq.), as amended. (1) Any transfer not allowed by this livestock brand marks. Alaska Native means: part is not legal, and does not confer (1) Eskimos, Indians, and Aleuts ownership or the right to keep Alaskan § 243.6 Which sales or transfers do not inhabiting Alaska at the time of the reindeer, reindeer products, or any require a permit? Treaty of Cession of Alaska to the interest in them. The following transfers do not require United States and their descendants; (2) Anyone violating this part will a permit: and forfeit their reindeer or reindeer (a) Sale by Alaska Natives of dead (2) Indians and Eskimos who, since products to the Federal Government. reindeer or reindeer products to non- the year 1867 and before September 1, (b) An Alaska Native or a Native Natives; and 1937, migrated into Alaska from the reindeer organization may transfer (b) Transfer of live reindeer between Dominion of Canada, and their reindeer that they own to other Alaska unrelated Alaska Natives. descendants currently living in Alaska. Natives or Native reindeer organizations Alaskan Reindeer means: § 243.7 How can a non-Native acquire live without restriction, except as provided (1) All reindeer descended from those reindeer? in this part. present in Alaska at the time of passage (c) We may maintain reindeer for If you are a non-Native who wants to of the Act; and acquire live Alaskan reindeer, you must (2) Any caribou introduced into research projects, so long as the purpose of the research benefits the Native apply to us in writing. We will either animal husbandry or that have joined grant the request and issue a written reindeer herds. reindeer industry. We retain title to these reindeer and will determine their permit valid for 90 days or reject the BIA means the Bureau of Indian request and give our reasons in writing. Affairs. eventual disposition. (d) A non-Native manager of Alaskan Any transfer that we authorize is subject Designee means the person assigned to the following conditions. by the Alaska Regional Director to reindeer must, by the last day of September each year: (a) The transfer must meet the administer the reindeer program. requirements of the Act and this part. Imported reindeer means reindeer (1) Provide us a copy of the contract (b) Within 30 days of transfer, you brought into Alaska from any region with the Native reindeer owner; and must either butcher the reindeer in outside of Alaska by non-Native persons (2) Provide us a written report of all Alaska or ship them out of Alaska. If since passage of the Act. It does not Alaskan reindeer kept, born, died or you ship the reindeer out alive: include ‘‘Alaskan’’ reindeer sold live transferred. (1) You must comply with all Federal and shipped out of Alaska, or their (e) We may permit possession of a and State animal health regulations descendants, that have been returned to limited number of Alaskan reindeer by governing transfers and shipments; and Alaska. a non-Native applicant under a Special Native reindeer organization means Use Permit for Public Display. (2) The reindeer and their any corporation, association, or other (1) We can revoke this permit for descendants must never be brought back organization, whether incorporated or cause. to Alaska alive. not, composed solely of Alaska Natives, (2) The permit will not allow the (c) Within 30 days of the transfer, you for the purpose of engaging in or permit-holder to keep a breeding herd must report to us the actual number of promoting the reindeer industry. (i.e., a herd that is capable of reindeer transferred or slaughtered. reproduction). Non-Native means a person who is § 243.8 What penalties apply to violations not an Alaska Native. (3) The permit holder must report to of this part? Regional Director means the officer in us in writing by the last day of If you are a non-Native transferee of charge of the Alaska Regional Office of September each year on all reindeer live Alaskan reindeer who violates the the Bureau of Indian Affairs. held under this permit. provisions of this part, you are subject Reindeer products mean the meat, § 243.5 Who can own or possess imported to the penalties in this section. hide, antlers, or any other products reindeer, and what limitations apply? (a) Under 25 U.S.C. 500i, you can be derived from reindeer. Transfer means the conveyance of (a) Anyone, including non-Natives, fined up to $5,000 if you: ownership of reindeer or reindeer may own imported reindeer in Alaska (1) Take possession of reindeer products, or any interest in them or for any legitimate purpose, subject to without a permit issued under § 243.7; interest in an Alaska Native reindeer State and Federal animal health laws or organization, by any method. and regulations. (2) Do not abide by the terms of a We, us and our mean the Regional (b) Imported reindeer must not be permit issued under § 243.7 (including Director or the Director’s designee. intermingled with, or be bred to, the requirement you slaughter or export Alaskan reindeer without our written the reindeer within 30 days and not § 243.3 Delegation of authority. consent. Any offspring resulting from a bring them back alive into Alaska). The Secretary of the Interior has mating with Alaskan reindeer are (b) Under 25 U.S.C. 500b, you are delegated authority under the Act considered Alaskan reindeer and a non- barred from asserting your title to the through the Assistant Secretary ‘‘Indian Native owner may not maintain these reindeer if you: Affairs to the Alaska Regional Director reindeer alive in Alaska. (1) Do not obtain from us a transfer of the Bureau of Indian Affairs. All (c) This paragraph applies if a non- permit and fully comply with its terms; claims of ownership of reindeer in Native owner of imported reindeer in or Alaska, as required by the Act (section Alaska contracts with a Native reindeer (2) Fail to file with us a claim of title 500b), must be filed with the Regional owner to keep and manage the imported to reindeer within 30 days of acquiring Director or the Director’s designee. reindeer. The owner must: them.
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§ 243.9 Who may inherit live Alaskan to maintain a complete and self- (d) Would have been prohibited under reindeer and by what means? sustaining economy for Alaska Natives §§ 243.6 or 243.8 of this part. (a) Privately owned live Alaskan (25 U.S.C. 500f). The collection of reindeer may pass to the deceased information as required in §§ 243.4, § 243.12 Are Alaskan reindeer trust owner’s Native heirs by descent or 243.5, 243.6, 243.7 and 243.8 has not property owned by the U.S. Government for the benefit of Alaska Natives? devise. been approved by the Office of (b) This paragraph applies if the final Management and Budget under 44 Except for reindeer maintained by probate decree of the Department of the U.S.C. 3507; a previously assigned BIA for research purposes or under Interior, or the decision of any clearance number 1076–0047 was other special use permits, all Alaskan reviewing Federal court, identifies a allowed to expire. A request has been reindeer are the private property of their non-Native as inheriting Alaskan submitted to the Office of Management Native owners subject only to: reindeer. The non-Native may inherit, and Budget for review and (a) The restrictions of the Reindeer but must be allowed no more than 30 reinstatement of this control number. Act; and days from receiving the final determination of heirship to: § 243.11 Are transfers of Alaskan reindeer (b) BIA’s responsibility to ensure that (1) Slaughter the reindeer; that occurred before issuance of this part any transfers of ownership are in (2) Apply for a permit to transfer the valid? accordance with this part. reindeer to an out-of-state transferee; or All transfers of live Alaskan reindeer (3) Apply for a permit to transfer or reindeer products that were § 243.13 Who may appeal an action under ownership of the reindeer to one or completed before the effective date of this part? more Alaska Native family members or this part are hereby ratified and Any interested party adversely other Alaska Native(s). confirmed. This ratification does not affected by a decision under this part extend to transfers that: § 243.10 Information collection. has the right of appeal as provided in 25 (a) Were fraudulent; CFR part 2, and 43 CFR part 4, subpart The Department of the Interior (b) Were made under duress; D. collects information for the Reindeer (c) Did not result in payment of fair Act to ensure compliance with its terms, compensation to the Native transferer; [FR Doc. 04–5467 Filed 3–10–04; 8:45 am] to monitor the industry in Alaska, and or BILLING CODE 4310–W7–P
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Reader Aids Federal Register Vol. 69, No. 48 Thursday, March 11, 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. 1006...... 9763 Presidential Documents 3 CFR 1007...... 9763 Executive orders and proclamations 741–6000 Proclamations: 1030...... 9763 The United States Government Manual 741–6000 6867 (Amended by 1032...... 9763 Proc. 7757) ...... 9515 Other Services 1033...... 9763 7757...... 9515 1124...... 9763 741–6020 Electronic and on-line services (voice) 7758...... 10131 1126...... 9763 Privacy Act Compilation 741–6064 7759...... 10593 1131...... 9763 Public Laws Update Service (numbers, dates, etc.) 741–6043 7760...... 11483 TTY for the deaf-and-hard-of-hearing 741–6086 7761...... 11485 8 CFR 7762...... 11489 214...... 11287 Executive Orders: ELECTRONIC RESEARCH Proposed Rules: 13288 (Continued by 208...... 10620 World Wide Web Notice of March 2, 212...... 10620 2004 ...... 10313 1003...... 10627 Full text of the daily Federal Register, CFR and other publications 13322 (Superseded by is located at: http://www.access.gpo.gov/nara 1208...... 10627 EO 13332)...... 10891 1212...... 10627 Federal Register information and research tools, including Public 13331...... 9911 1240...... 10627 Inspection List, indexes, and links to GPO Access are located at: 13332...... 10891 http://www.archives.gov/federallregister/ Administrative Orders: 9 CFR E-mail Memorandums: 71...... 10137 Memorandum of March 78...... 9747 FEDREGTOC-L (Federal Register Table of Contents LISTSERV) is 5, 2004 ...... 11489 93...... 9749 an open e-mail service that provides subscribers with a digital Notices: 93...... 10633 form of the Federal Register Table of Contents. The digital form Notice of March 8, 94...... 10633 of the Federal Register Table of Contents includes HTML and 2004 ...... 11491 95...... 10633 PDF links to the full text of each document. Presidential 11 CFR To join or leave, go to http://listserv.access.gpo.gov and select Determinations: Online mailing list archives, FEDREGTOC-L, Join or leave the list No. 2004–23 of Proposed Rules: (orchange settings); then follow the instructions. February 25, 2004 ...... 9915 100...... 11736 No. 2004–24 of 102...... 11736 PENS (Public Law Electronic Notification Service) is an e-mail February 25, 2004 ...... 9917 104...... 11736 service that notifies subscribers of recently enacted laws. No. 2004–25 of 106...... 11736 To subscribe, go to http://listserv.gsa.gov/archives/publaws-l.html February 26, 2004 ...... 10595 114...... 11736 and select Join or leave the list (or change settings); then follow Memorandums: the instructions. Memorandum of March 12 CFR FEDREGTOC-L and PENS are mailing lists only. We cannot 1, 2004 ...... 10133 220...... 10601 respond to specific inquiries. Memorandum of March 229...... 10602 3, 2004 ...... 10597 609...... 10901 Reference questions. Send questions and comments about the Notices: 611...... 10901 Federal Register system to: [email protected] March 2, 2004 ...... 10313 612...... 10901 The Federal Register staff cannot interpret specific documents or 614...... 10901 regulations. 5 CFR 615...... 10901 300...... 10152 617...... 10901 FEDERAL REGISTER PAGES AND DATE, MARCH 890...... 9919 741...... 9926 1201...... 11503 14 CFR 9515–9742...... 1 7 CFR 9743–9910...... 2 21...... 10315 301...... 10599 9911–10130...... 3 29...... 10315 319...... 9743 10131–10312...... 4 39 ...... 9520, 9521, 9523, 9526, 400...... 9519 9750, 9927, 9930, 9932, 10313–10594...... 5 457...... 9519 9934, 9936, 9941, 10317, 10595–10900...... 8 701...... 10300 10319, 10321, 10913, 10914, 10901–11286...... 9 783...... 9744 10915, 10917, 10919, 10921, 11287–11502...... 10 906...... 10135 11290, 11293, 11296, 11297, 11503–11788...... 11 1230...... 9924 11299, 11303, 11305, 11308, Proposed Rules: 11504 16...... 10354 71 ...... 10103, 10324, 10325, 319...... 9976 10326, 10327, 10328, 10329, 457...... 11342 10330, 10331, 10603, 10604, 1000...... 9763 10605, 10606, 10608, 10609, 1001...... 9763 10610, 10611, 10612, 11480, 1005...... 9763 11712
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95...... 10612 314...... 9982 34 CFR 87...... 10951 97...... 10614 888...... 10390 Proposed Rules: 92...... 10951 Proposed Rules: 106...... 11276 96...... 10951 39 ...... 10179, 10357, 10360, 24 CFR Ch. XII...... 10188 10362, 10364, 10364, 10366, 21...... 11314 37 CFR Ch. XXV...... 10188 10369, 10370, 10372, 10374, 24...... 11314 201...... 11515 10375, 10378, 10379, 10381, 200...... 10106, 11494 270...... 11515 46 CFR 10383, 10385, 10387, 10636, 203...... 11500 Proposed Rules: 67...... 10174 10638, 10641, 10939, 11346, Proposed Rules: 1...... 9986 310...... 9758 11547, 11549, 11550, 11552, 5...... 10126 2...... 9986 Proposed Rules: 11554, 11556, 11558 570...... 10126 10...... 9986 67...... 11582 71...... 10389 990...... 11349 11...... 9986 221...... 11582 201...... 11566 16 CFR 3284...... 9740 38 CFR 47 CFR 304...... 9943 25 CFR Proposed Rules: 1...... 11531 54...... 11326 Proposed Rules: 316...... 11776 36...... 10618 73...... 11540 30...... 10181 Proposed Rules: Proposed Rules: 17 CFR 37...... 10181 19...... 10185 73...... 9790, 9791 39...... 10181 20...... 10185 210...... 9722, 11244 42...... 10181 48 CFR 228...... 9722 44...... 10181 39 CFR 229...... 9722 47...... 10181 1817...... 9963 239...... 11244 111...... 11532, 11534 243...... 11784 241...... 11536 Proposed Rules: 240...... 9722 23...... 10118 Proposed Rules: 249...... 9722, 11244 26 CFR 52...... 10118 270...... 9722, 11244 3001...... 11353 1...... 9529, 11507 274...... 9722, 11244 40 CFR 49 CFR Proposed Rules: Proposed Rules: 52...... 10161 200...... 11126 1 ...... 9560, 9771, 11560, 11561 193...... 11330 62 ....9554, 9949, 10165, 11537 230...... 11126 375...... 10570 63...... 10512 240...... 11126 28 CFR 541...... 9964 69...... 10332 242...... 11126 50...... 10152 571...... 10928, 11337 70...... 9557, 10167 249...... 11126 Proposed Rules: 82...... 9754 270...... 9726, 11762 29 CFR 172...... 9565 180 ...... 9954, 9958, 11317 173...... 9565 19 CFR 1607...... 10152 271...... 10171, 11322 174...... 9565 Proposed Rules: Proposed Rules: 122...... 10151 175...... 9565 2...... 11234 52 ...... 9776, 11577, 11580 176...... 9565 20 CFR 37...... 11234 62 ...... 9564, 9987, 10186 177...... 9565 2550...... 9900 82...... 11358 Proposed Rules: 178...... 9565 141...... 9781 659...... 11218 667...... 11234 30 CFR 142...... 9781 670...... 11234 920...... 11512 271...... 10187 50 CFR 300...... 9988, 10646 21 CFR 946...... 11314 17...... 10335 314...... 11309 Proposed Rules: 41 CFR 216...... 9759 920...... 11562 520...... 9753, 9946 60-3...... 10152 223...... 11540 943...... 9983 522...... 11506 102-39...... 11539 229...... 9760 558...... 9947 622...... 9969 803...... 11310 33 CFR 44 CFR 635...... 10936 806...... 11310 117 .....9547, 9549, 9550, 9551, 64...... 9755 648 ...... 9970, 10174, 10177, 807...... 11310 10158, 10159, 10160, 10615 65...... 10923 10937 814...... 11310 165 ...... 9552, 9948, 10616, 67...... 10924, 10927 660...... 11064 820...... 11310 11314 Proposed Rules: 679...... 11545 870...... 10615 Proposed Rules: 67...... 10941 Proposed Rules: 882...... 10331 100...... 9984, 11564 17...... 10956 1005...... 11310 117 ...... 9562, 10182, 10183, 45 CFR 622...... 10189 Proposed Rules: 11351 Proposed Rules: 660...... 11361 101...... 9559 402...... 9774 74...... 10951 679...... 10190
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REMINDERS reclamation plan comments due by 3-15- Air programs: The items in this list were submissions: 04; published 2-11-04 Outer Continental Shelf editorially compiled as an aid Maryland; published 3-11-04 [FR 04-02982] regulations— to Federal Register users. POSTAL SERVICE Caribbean, Gulf, and South California; consistency Atlantic fisheries— Inclusion or exclusion from Organization and update; comments due this list has no legal administration: Vermilion snapper; by 3-15-04; published significance. comments due by 3-15- 2-12-04 [FR 04-03079] Post offices; discontinuance; 04; published 2-13-04 published 3-11-04 Air quality implementation [FR 04-03281] plans; approval and RULES GOING INTO TRANSPORTATION Northeastern United States promulgation; various EFFECT MARCH 11, 2004 DEPARTMENT fisheries— States: Federal Aviation Atlantic sea scallop; California; comments due by COMMERCE DEPARTMENT Administration comments due by 3-15- 3-15-04; published 2-12- National Oceanic and Airworthiness directives: 04; published 1-16-04 04 [FR 04-03077] Atmospheric Administration Air Cruisers Co.; published [FR 04-01012] Florida; comments due by Fishery conservation and 2-5-04 CONSUMER PRODUCT 3-15-04; published 2-13- management: TRANSPORTATION SAFETY COMMISSION 04 [FR 04-03074] Alaska; fisheries of DEPARTMENT Federal Hazardous Environmental statements; Exclusive Economic Research and Special Substances Act: availability, etc.: Zone— Programs Administration Baby bath seats; Coastal nonpoint pollution Pollock; published 3-12-04 Hazardous materials: requirements; comments control program— due by 3-15-04; published Minnesota and Texas; COMMODITY FUTURES Transportation— 12-29-03 [FR 03-31135] Open for comments TRADING COMMISSION Security requirements; until further notice; Commodity Exchange Act: published 2-10-04 COURT SERVICES AND OFFENDER SUPERVISION published 10-16-03 [FR Customer funds investment; TREASURY DEPARTMENT AGENCY FOR THE 03-26087] published 2-10-04 Internal Revenue Service DISTRICT OF COLUMBIA Hazardous waste: FEDERAL Income taxes: Semi-annual agenda; Open for Low-level radioactive waste; COMMUNICATIONS New markets tax credit; comments until further management and COMMISSION published 3-11-04 notice; published 12-22-03 disposal; comments due Common carrier services: [FR 03-25121] by 3-17-04; published 11- 18-03 [FR 03-28651] Federal-State Joint Board DEFENSE DEPARTMENT COMMENTS DUE NEXT Solid Waste: on Universal Service— Acquisition regulations: WEEK Products containing Schools and libraries; U.S.-Chile and U.S.- universal service recovered materials; AGRICULTURE Singapore Free Trade comprehensive support mechanism; Agreements; published 2-10-04 DEPARTMENT procurement guideline; implementation; comments comments due by 3-19- Radio stations; table of Agricultural Marketing due by 3-15-04; published 04; published 2-18-04 [FR assignments: Service 1-13-04 [FR 04-00568] 04-03449] Nevada; correction; Hazelnuts grown in— Federal Acquisition Regulation Solid wastes: published 3-11-04 Oregon and Washington; (FAR): comments due by 3-16- Hazardous waste; GENERAL SERVICES Commercially available off- 04; published 1-16-04 [FR identification and listing— ADMINISTRATION the-shelf items; comments 04-01004] Solvent-contaminated due by 3-15-04; published Federal Management reusable shop towels, Regulation: AGRICULTURE 1-15-04 [FR 04-00852] DEPARTMENT rags, disposable wipes, Exchange/sale authority; ENERGY DEPARTMENT and paper towels; Rural Business-Cooperative replacement of personal Federal Energy Regulatory conditional exclusion; Service property; published 3-11- Commission comments due by 3-19- Program regulations: 04 Electric rate and corporate 04; published 1-30-04 HEALTH AND HUMAN Business and industry loans; regulation filings: [FR 04-01972] tangible balance sheet SERVICES DEPARTMENT Virginia Electric & Power Superfund program: equity; comments due by Food and Drug Co. et al.; Open for National oil and hazardous 3-16-04; published 1-16- Administration comments until further substances contingency 04 [FR 04-00979] Animal drugs, feeds, and notice; published 10-1-03 plan— related products: COMMERCE DEPARTMENT [FR 03-24818] National priorities list Lincomycin injectable National Oceanic and ENVIRONMENTAL update; comments due solution; published 3-11- Atmospheric Administration PROTECTION AGENCY by 3-19-04; published 04 Fishery conservation and Air pollutants, hazardous; 2-18-04 [FR 04-03368] management: HOMELAND SECURITY national emission standards: FEDERAL DEPARTMENT Alaska; fisheries of Pulp and paper industry; COMMUNICATIONS Exclusive Economic COMMISSION Coast Guard comments due by 3-18- Zone— 04; published 2-17-04 [FR Digital television stations; table Outer Continental Shelf Skates; comments due by 04-03369] of assignments: activities: 3-19-04; published 3-4- Air pollution; standards of Kansas; comments due by Gulf of Mexico; safety zone; 04 [FR 04-04871] performance for new 3-15-04; published 2-10- published 2-10-04 Atlantic highly migratory stationary sources: 04 [FR 04-02832] INTERIOR DEPARTMENT species— Commercial or industrial Television broadcasting: Surface Mining Reclamation Pelagic longline fishery; solid waste incineration UHF television discount; and Enforcement Office sea turtle bycatch and units; comments due by comments due by 3-19- Permanent program and bycatch mortality 3-18-04; published 2-17- 04; published 2-27-04 [FR abandoned mine land reduction measures; 04 [FR 04-03366] 04-04391]
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GENERAL SERVICES notice; published 1-14-04 Senior Executive Service: Variable annuity, ADMINISTRATION [FR 04-00749] Pay and performance endowment, and life Federal Acquisition Regulation Drawbridge operations: awards; new pay-for- insurance contracts; (FAR): Florida; comments due by performance system; diversification Commercially available off- 3-16-04; published 1-16- comments due by 3-15- requirements; hearing; the-shelf items; comments 04 [FR 04-01057] 04; published 1-13-04 [FR comments due by 3-18- due by 3-15-04; published 04-00733] 04; published 2-17-04 [FR Virginia; comments due by 04-03401] 1-15-04 [FR 04-00852] 3-15-04; published 1-13- SECURITIES AND GOVERNMENT ETHICS 04 [FR 04-00637] EXCHANGE COMMISSION OFFICE Ports and waterways safety: Investment advisers: Certificates of divestiture; Coronado Bay Bridge, San Codes of ethics; comments LIST OF PUBLIC LAWS comments due by 3-15-04; Diego, CA; security zone; due by 3-15-04; published published 1-13-04 [FR 04- comments due by 3-16- 1-27-04 [FR 04-01669] This is a continuing list of 00685] 04; published 1-16-04 [FR Securities: public bills from the current HEALTH AND HUMAN 04-01058] Penny stock rules; session of Congress which SERVICES DEPARTMENT San Francisco Bay, San comments due by 3-16- have become Federal laws. It Children and Families Francisco and Oakland, 04; published 1-16-04 [FR may be used in conjunction Administration CA; security zones; 04-00881] with ‘‘PLUS’’ (Public Laws Update Service) on 202–741– Head Start Program: comments due by 3-15- SMALL BUSINESS 6043. This list is also Vehicles used to transport 04; published 1-15-04 [FR ADMINISTRATION 04-00914] available online at http:// children; safety features Disaster loan areas: www.archives.gov/ and safe operation Station Port Huron, MI, Maine; Open for comments federal—register/public—laws/ requirements; comments Lake Huron; regulated until further notice; public—laws.html. navigation area; due by 3-16-04; published published 2-17-04 [FR 04- comments due by 3-15- 1-16-04 [FR 04-01096] 03374] The text of laws is not HEALTH AND HUMAN 04; published 1-15-04 [FR TRANSPORTATION published in the Federal SERVICES DEPARTMENT 04-00913] DEPARTMENT Register but may be ordered Food and Drug INTERIOR DEPARTMENT in ‘‘slip law’’ (individual Federal Aviation Administration Surface Mining Reclamation pamphlet) form from the Administration Biological products: and Enforcement Office Superintendent of Documents, Air carrier certification and Permanent program and U.S. Government Printing Spore-forming operations: microorganisms; abandoned mine land Office, Washington, DC 20402 performance requirements; reclamation plan Multi-engine airplanes; (phone, 202–512–1808). The comments due by 3-15- submissions: extended operations; text will also be made comments due by 3-15- available on the Internet from 04; published 12-30-03 Texas; comments due by 3- 04; published 1-6-04 [FR GPO Access at http:// [FR 03-31918] 19-04; published 3-3-04 03-32335] www.gpoaccess.gov/plaws/ Reports and guidance [FR 04-04636] Airworthiness directives: index.html. Some laws may documents; availability, etc.: JUSTICE DEPARTMENT Airbus; comments due by 3- not yet be available. Evaluating safety of Justice Programs Office antimicrobial new animal 15-04; published 2-13-04 Grants: H.R. 743/P.L. 108–203 drugs with regard to their [FR 04-03207] microbiological effects on Correctional Facilities on Bombardier; comments due Social Security Protection Act bacteria of human health Tribal Lands Program; by 3-15-04; published 2- of 2004 (Mar. 2, 2004; 118 concern; Open for comments due by 3-15- 13-04 [FR 04-03133] Stat. 493) comments until further 04; published 1-15-04 [FR Empresa Brasileira de S. 523/P.L. 108–204 notice; published 10-27-03 04-00281] Aeronautica, S.A. [FR 03-27113] NATIONAL AERONAUTICS (EMBRAER); comments Native American Technical HOMELAND SECURITY AND SPACE due by 3-19-04; published Corrections Act of 2004 (Mar. DEPARTMENT ADMINISTRATION 2-18-04 [FR 04-03350] 2, 2004; 118 Stat. 542) Customs and Border Federal Acquisition Regulation McDonnell Douglas; Last List March 2, 2004 Protection Bureau (FAR): comments due by 3-15- Inspection, search, and Commercially available off- 04; published 1-29-04 [FR seizure: the-shelf items; comments 04-01912] Administrative forfeiture due by 3-15-04; published Class E airspace; comments Public Laws Electronic notices; publication; 1-15-04 [FR 04-00852] due by 3-15-04; published Notification Service comments due by 3-15- NUCLEAR REGULATORY 1-14-04 [FR 04-00850] (PENS) 04; published 1-14-04 [FR COMMISSION Restricted areas; comments 04-00724] Low-level radioactive waste, due by 3-19-04; published Organization and functions; management and disposal; 2-3-04 [FR 04-02178] PENS is a free electronic mail field organization, ports of framework; comments due VOR Federal airways; notification service of newly entry, etc.: by 3-17-04; published 11- comments due by 3-19-04; enacted public laws. To Memphis, TN; port limits 18-03 [FR 03-28496] published 2-3-04 [FR 04- subscribe, go to http:// 02179] listserv.gsa.gov/archives/ extension; comments due PERSONNEL MANAGEMENT publaws-l.html by 3-15-04; published 1- OFFICE TREASURY DEPARTMENT 14-04 [FR 04-00813] E-Government Act of 2002; Internal Revenue Service Note: This service is strictly HOMELAND SECURITY implementation: Income taxes: for E-mail notification of new DEPARTMENT Information Technology Business electronic filing; laws. The text of laws is not Coast Guard Exchange Program; guidance; cross reference; available through this service. Anchorage regulations: comments due by 3-15- comments due by 3-18- PENS cannot respond to Maryland; Open for 04; published 1-15-04 [FR 04; published 12-19-03 specific inquiries sent to this comments until further 04-00862] [FR 03-31239] address.
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