11–1–06 Wednesday Vol. 71 No. 211 Nov. 1, 2006
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Contents Federal Register Vol. 71, No. 211
Wednesday, November 1, 2006
Actuaries, Joint Board for Enrollment Education Department See Joint Board for Enrollment of Actuaries RULES Postsecondary education: Federal Pell, Academic Competiveness, and National Agriculture Department Science and Mathematics Access to Retain Talent See Farm Service Agency Grant Programs; eligibility requirements, 64402– See Forest Service 64419 Federal Student Aid Program, 64378–64400 Arts and Humanities, National Foundation See National Foundation on the Arts and the Humanities Employment and Training Administration NOTICES Coast Guard Adjustment assistance; applications, determinations, etc.: RULES ABB, Inc., 64299 Drawbridge operations: Andrew Corp. AFMA, 64299–64300 Maryland and Virginia, 64113–64114 Celestica Corp., 64300 Ports and waterways safety; regulated navigation areas, Connecticut General Life Insurance Co., 64300–64301 safety zones, security zones, etc.: LeeMAH Electronics, Inc., 64301–64302 Caloosahatchee River, FL, 64114–64116 R. L. Stowe Mills, Inc., et al., 64302–64303 Sanibel Island Bridge Span A, Ft. Myers Beach, FL, 64116–64118 Energy Department See Federal Energy Regulatory Commission Commerce Department See International Trade Administration Environmental Protection Agency See National Oceanic and Atmospheric Administration RULES Air quality implementation plans; approval and promulgation; various States: Commodity Futures Trading Commission Utah, 64125–64127 PROPOSED RULES Pesticide programs: Registered futures associations; membership requirement, Plant-incorporated protectorants; procedures and 64171–64173 requirements— Bacillus thuringiensis modified Cry3A protein, 64128– Copyright Office, Library of Congress 64132 NOTICES PROPOSED RULES Copyright office and procedures: Air quality implementation plans; approval and Ringtones; mechanical and digital phonorecord delivery promulgation; various States: rate adjustment proceeding, 64303–64317 Utah, 64182–64183 Copyright royalty fees: NOTICES Subscription and nonsubscription services that transmit Meetings: sound recordings under statutory licenses; intent to FIFRA Scientific Advisory Panel, 64262 audit, 64317–64318 Pesticide, food, and feed additive petitions: Syngenta Seeds, Inc., 64268–64269 Pesticide programs: Defense Department Risk assessments— See Navy Department Chlorflurenol, 64262–64264 NOTICES Pesticide registration, cancellation, etc.: Federal Acquisition Regulation (FAR): Indole-3-acetic acid, 64265–64266 Agency information collection activities; proposals, Racer concentrate, 64264–64265 submissions, and approvals, 64246–64247 Ticks or Mosquitoes, LLC, 64266–64267 Privacy Act; systems of records, 64247–64251 Superfund; response and remedial actions, proposed U.S. Court of Appeals for Armed Forces; practice and settlements, etc.: procedure rule changes, 64251–64256 Constitution Road Drum Site, GA, 64269–64270 DSI Facility Site, MS, 64270–64271 Drug Enforcement Administration Modena Yard Site, PA, 64271 NOTICES Rosso Property Scrapyard Site, NC, 64271–64272 Applications, hearings, determinations, etc.: Second Melts Acid Spill Site, GA, 64272–64273 Alcan Packaging-Bethlehem, 64298 Tindall Property Site, KY, 64273 Aptuit, 64298 Cambrex Charles City, Inc., 64298 Executive Office of the President Kenco VPI, 64298–64299 See Management and Budget Office Tocris Cookson, Inc., 64299 See Presidential Documents
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Farm Service Agency Federal Highway Administration NOTICES PROPOSED RULES Agency information collection activities; proposals, Engineering and traffic operations: submissions, and approvals, 64237 Temporary traffic control devices; work zone safety protection measures for workers and motorists, Federal Aviation Administration 64173–64181 RULES NOTICES Air traffic operating and flight rules, etc.: Highway planning and construction; licenses, permits, Chicago O’Hare International Airport, IL; unscheduled approvals, etc.: arrivals; reservation system, 64111–64113 King and Snohomish Counties, WA; corridor NOTICES improvements, 64331–64332 Exemption petitions; summary and disposition, 64331 Federal Maritime Commission Federal Communications Commission NOTICES RULES Agreements filed, etc., 64280 Radio stations; table of assignments: Ocean transportation intermediary licenses: Missouri, 64152 DCM Logistics, Inc., et al., 64280–64281 Nevada, 64150 Zenus (USA) Logistics LLC et al., 64281 Oregon and Texas, 64152–64153 Various states, 64150–64154 Federal Reserve System Television broadcasting: NOTICES Children’s television programming— Banks and bank holding companies: Digital television broadcasters obligations to provide Change in bank control, 64281–64282 educational programming, 64154–64165 Formations, acquisitions, and mergers, 64282 NOTICES Agency information collection activities; proposals, Federal Transit Administration submissions, and approvals, 64273–64278 NOTICES Meetings: Environmental statements; notice of intent: 2007 World Radiocommunication Conference Advisory Dumbarton Rail Corridor Project, San Francisco Bay, CA, Committee, 64278 64332–64334 Consumer Advisory Committee, 64278–64279 Fish and Wildlife Service Technological Advisory Council, 64279 NOTICES Meetings; Sunshine Act, 64279–64280 Endangered and threatened species permit applications, Federal Emergency Management Agency determinations, etc., 64289–64290 Marine mammal permit applications, determinations, etc., RULES 64290 Flood elevation determinations: Nebraska and Texas, 64148–64150 Food and Drug Administration Various States, 64132–64148 NOTICES PROPOSED RULES Meetings: Flood elevation determinations: Marketed unapproved drugs application process; public North Carolina, 64183–64208 workshop, 64284–64285 Ohio, 64211–64213 Various States, 64208–64211 Forest Service NOTICES NOTICES Disaster and emergency areas: Environmental statements; notice of intent: Hawaii, 64288 Salmon-Challis National Forest, ID, 64237–64240 New York, 64288 General Services Administration Federal Energy Regulatory Commission NOTICES RULES Federal Acquisition Regulation (FAR): Public Utility Regulatory Policies Act: Agency information collection activities; proposals, Small power production and cogeneration facilities, submissions, and approvals, 64246–64247 64342–64375 NOTICES Geological Survey Electric rate and corporate regulation combined filings, NOTICES 64260–64262 Agency information collection activities; proposals, Applications, hearings, determinations, etc.: submissions, and approvals, 64290–64291 CenterPoint Energy - Mississippi River Transmission Corp., 64257 Health and Human Services Department Cheyenne Plains Gas Pipeline Co., LLC, 64257–64258 See Food and Drug Administration East Tennessee Natural Gas, LLC, 64258 See National Institutes of Health Guardian Pipeline, L.L.C., 64258 NOTICES National Fuel Gas Supply Corp., 64258–64259 Reports and guidance documents; availability, etc.: Peoples Gas Light & Coke Co., 64259 Personalized health care improvement through Regional Transmission Organizations et al., 64259 information technology and genomic information in Texas Eastern Transmission, LP, 64259–64260 population- and community-based health care Transcontinental Gas Pipe Line Corp., 64260 delivery systems, 64282–64284
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Homeland Security Department Library of Congress See Coast Guard See Copyright Office, Library of Congress See Federal Emergency Management Agency See Transportation Security Administration Management and Budget Office NOTICES Housing and Urban Development Department Commercial activities performance (Circular A-76): RULES Civilian position full fringe benefit cost factor, Federal HUD-owned properties: pay raise assumptions, inflation factors, and tax HUD-acquired single family property disposition— rates, 64320–64322 Good Neighbor Next Door Sales Program, 64422–64428 National Aeronautics and Space Administration Indian Affairs Bureau NOTICES PROPOSED RULES Federal Acquisition Regulation (FAR): Indian trust management reform, 64181–64182 Agency information collection activities; proposals, NOTICES submissions, and approvals, 64246–64247 Agency information collection activities; proposals, submissions, and approvals, 64291 National Foundation on the Arts and the Humanities Interior Department NOTICES Meetings: See Fish and Wildlife Service Arts Advisory Panel, 64318 See Geological Survey See Indian Affairs Bureau National Institutes of Health See National Park Service PROPOSED RULES NOTICES Indian trust management reform, 64181–64182 Meetings: National Institute of Diabetes and Digestive and Kidney Internal Revenue Service Diseases, 64286–64287 NOTICES National Institute of General Medical Sciences, 64286 Committees; establishment, renewal, termination, etc.: National Institute of Mental Health, 64285–64286 Tax Exempt and Government Entities Advisory National Institute of Neurological Disorders and Stroke, Committee, 64334–64335 64285 Meetings: National Institute on Drug Abuse, 64285 Taxpayer Advocacy Panels, 64335 Scientific Review Center, 64287 Reports and guidance documents; availability, etc.: International Trade Administration Translational Research Working Group; cancer translation NOTICES research development; comment request; correction, Antidumping: 64287–64288 Granular polytetrafluoroethylene resin from— Japan, 64243–64244 National Oceanic and Atmospheric Administration Individually quick frozen red raspberries from— RULES Chile, 64244–64245 Fishery and conservation management: Stainless steel flanges from— Atlantic highly migratory species— India, 64245 Bluefin tuna, 64165–64167 Antidumping and countervailing duties: PROPOSED RULES Administrative review requests, 64240–64241 Fishery conservation and management: Five year (sunset) reviews— Alaska; fisheries of Exclusive Economic Zone— Advance notification, 64241–64242 Pacific halibut and sablefish, 64218–64236 Initiation of reviews, 64242–64243 Atlantic highly migratory species— Commercial shark management measures, 64213–64214 International Trade Commission Northeastern United States fisheries— NOTICES Hagfish, 64214–64216 Import investigations: West Coast States and Western Pacific fisheries— Honey from— Pacific Coast groundfish, 64216–64217 Argentina and China, 64292–64294 NOTICES Welded large diameter line pipe from— Committees; establishment, renewal, termination, etc.: Japan and Mexico, 64294–64297 Marine Protected Areas Federal Advisory Committee, 64245–64246 Joint Board for Enrollment of Actuaries NOTICES National Park Service Meetings: NOTICES Actuarial Examinations Advisory Committee, 64297– Environmental statements; record of decision: 64298 Fort King Special Resource Study, GA, 64291–64292
Justice Department National Science Foundation See Drug Enforcement Administration NOTICES Antarctic Conservation Act of 1978; permit applications, Labor Department etc., 64318 See Employment and Training Administration Privacy Act; systems of records, 64319–64320
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Navy Department Transportation Department NOTICES See Federal Aviation Administration Meetings: See Federal Highway Administration Chief of Naval Operations Executive Panel, 64257 See Federal Transit Administration Nuclear Regulatory Commission PROPOSED RULES Transportation Security Administration Rulemaking petitions: NOTICES Massachusetts Attorney General, 64169–64170 Agency information collection activities; proposals, Ritenour, E. Russell, Ph.D., 64168–64169 submissions, and approvals, 64288–64289 Office of Management and Budget Treasury Department See Management and Budget Office See Internal Revenue Service Postal Service RULES Veterans Affairs Department Domestic Mail Manual: NOTICES Infectious substances; mailing and packaging standards, Agency information collection activities; proposals, 64121–64125 submissions, and approvals, 64335–64339 Sharps and other regulated medical waste containers; Meetings: mailing standards, 64118–64121 Veteran’s Disability Benefits Commission, 64339–64340 Presidential Documents ADMINISTRATIVE ORDERS Immigration; refugee admission numbers and authorization Separate Parts In This Issue (Presidential Determination) No. 2007-1 of October 11, 2006, 64435–64436 Palestine Liberation Organization; waiver of statutory Part II provisions (Presidential Determination) Energy Department, Federal Energy Regulatory No. 2007-2 of October 13, 2006, 64437 Commission, 64342–64375 Trafficking in persons; determination under the Trafficking Victims Protection Act of 2000 (Presidential Part III Determination) No. 2006-25 of September 26, 2006, 64429–64433 Education Department, 64378–64400
Securities and Exchange Commission Part IV NOTICES Education Department, 64402–64419 Agency information collection activities; proposals, submissions, and approvals, 64322–64323 Investment Company Act of 1940: Part V AIG SunAmerica Life Assurance Co., et al., 64323–64326 Housing and Urban Development Department, 64422–64428 Self-regulatory organizations; proposed rule changes: National Association of Securities Dealers, Inc., 64326– Part VI 64327 Executive Office of the President, Presidential Documents, Social Security Administration 64429–64433, 64435–64437 NOTICES Agency information collection activities; proposals, submissions, and approvals, 64327–64330 Reader Aids Meetings: Ticket to Work and Work Incentives Advisory Panel, Consult the Reader Aids section at the end of this issue for 64330 phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws. State Department To subscribe to the Federal Register Table of Contents NOTICES LISTSERV electronic mailing list, go to http:// Exchange Visitor Program: listserv.access.gpo.gov and select Online mailing list Professor and Research Scholar Exchange Program; archives, FEDREGTOC-L, Join or leave the list (or change effective implementation date, 64330 settings); then follow the instructions.
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CFR PARTS AFFECTED IN THIS ISSUE
A cumulative list of the parts affected this month can be found in the Reader Aids section at the end of this issue.
3 CFR 648...... 64214 660...... 64216 Administrative Orders: 679...... 64218 Presidential Determinations: No. 2006-25...... 64431 No. 2007-1...... 64435 No. 2007-2...... 64437 10 CFR Proposed Rules: 35...... 64168 51...... 64169 14 CFR 93 (2 documents) ...... 64111 17 CFR Proposed Rules: 170...... 64171 18 CFR 292...... 64342 23 CFR Proposed Rules: 630...... 64173 24 CFR 291...... 64422 25 CFR Proposed Rules: 15...... 64181 18...... 64181 150...... 64181 152...... 64181 179...... 64181 33 CFR 117...... 64113 165 (2 documents) ...... 64114, 64116 34 CFR 668 (2 documents) ...... 64378, 64402 673...... 64378 682...... 64378 685...... 64378 690...... 64402 691...... 64402 39 CFR 111 (2 documents) ...... 64118, 64121 40 CFR 52...... 64125 174...... 64128 Proposed Rules: 52...... 64182 43 CFR Proposed Rules: 4...... 64181 30...... 64181 44 CFR 67 (3 documents) ...... 64132, 64141, 64148 Proposed Rules: 67 (3 documents) ...... 64183, 64208, 64211 47 CFR 73 (7 documents) ...... 64150, 64152, 64153, 64154 76...... 64154 50 CFR 635...... 64165 Proposed Rules: 635...... 64123
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Rules and Regulations Federal Register Vol. 71, No. 211
Wednesday, November 1, 2006
This section of the FEDERAL REGISTER (2) Visiting the FAA’s Regulations and as well as the air carriers and other contains regulatory documents having general Policies Web page at http:// operators at O’Hare and beyond. This applicability and legal effect, most of which www.faa.gov/regulations_policies/; or rule facilitates the Agency’s exercise of are keyed to and codified in the Code of (3) Accessing the Government its authority to manage the safe and Federal Regulations, which is published under Printing Office’s Web page at http:// efficient use of the navigable airspace. 50 titles pursuant to 44 U.S.C. 1510. www.gpoaccess.gov/fr/index.html. Background The Code of Federal Regulations is sold by You can also get a copy by sending a the Superintendent of Documents. Prices of request to the Federal Aviation Since November 2003, O’Hare has new books are listed in the first FEDERAL Administration, Office of Rulemaking, suffered an inordinate and unacceptable REGISTER issue of each week. ARM–1, 800 Independence Avenue, number of delays as the result of over- SW., Washington, DC 20591, or by scheduling at the airport, which was calling (202) 267–9680. Make sure to also having a crippling effect on the DEPARTMENT OF TRANSPORTATION identify the amendment number or entire National Airspace System. In docket number of this rulemaking. August 2004, the FAA intervened by Federal Aviation Administration Small Business Regulatory Enforcement ordering a limit on the number of Fairness Act scheduled arrivals at the airport during 14 CFR Part 93 the peak operating hours of 7 a.m. The Small Business Regulatory through 8:59 p.m., Central Time, [Docket No. FAA–2005–19411; SFAR No. Enforcement Fairness Act (SBREFA) of 105] effective November 1, 2004, so that the 1996 requires FAA to comply with system could return to a reasonably small entity requests for information or RIN 2120–AI47 balanced level of operations and delay.3 advice about compliance with statutes On October 20, 2004, we published a and regulations within its jurisdiction. Reservation System for Unscheduled notice of proposed rulemaking (NPRM) Therefore, any small entity that has a Arrivals at Chicago’s O’Hare seeking public comments on a proposed International Airport question regarding this document may contact their local FAA official, or the reservation system for unscheduled arrivals at O’Hare (69 FR 61708). AGENCY: Federal Aviation person listed under FOR FURTHER Effective November 1, 2004, and while Administration (FAA), DOT. INFORMATION CONTACT. You can find out this rulemaking was pending, we ACTION: more about SBREFA on the Internet at Final rule; extension of implemented a corresponding voluntary expiration date. our site, http://www.faa.gov/ regulations_policies/rulemaking/ reservation program for unscheduled SUMMARY: This action extends the sbre_act/. arrivals using the general procedures expiration date of Special Federal followed during Special Traffic Aviation Regulation (SFAR) No. 105 Authority for This Rulemaking Management Programs and the High through October 31, 2008. This action is The U.S. Government has exclusive Density Rule. necessary to maintain the reservation sovereignty over the airspace of the On July 8, 2005, the FAA published system established for unscheduled United States.1 Under this broad SFAR No. 105, ‘‘Reservation System for arrivals at O’Hare International Airport authority, Congress has delegated to the Unscheduled Arrivals at Chicago’s consistent with the newly adopted Administrator extensive and plenary O’Hare International Airport’’ (70 FR limitations imposed on scheduled authority to ensure the safety of aircraft 39610). As stated in SFAR No. 105, the operations at the airport. and the efficient use of the Nation’s benefits achieved by the FAA’s August 18 Order would dissipate if certain DATES: This final rule is effective on navigable airspace. In this regard, the operations at the airport remained October 28, 2006, and SFAR No. 105 Administrator is required to assign by capped but other operations were published at 70 FR 39610 (July 8, 2005), regulation or order use of the airspace 2 permitted to grow. SFAR No. 105 as amended at 70 FR 66255 (November to ensure its efficient use. maintained the historical level of 2, 2005), 71 FR 16219 (March 31, 2006), The FAA’s broad statutory authority unscheduled operations at O’Hare and and in this rule, shall remain in effect to manage the efficient use of airspace supported other agency actions at until October 31, 2008. encompasses management of the nationwide system of air commerce and O’Hare that address congestion and FOR FURTHER INFORMATION CONTACT: air traffic control. To ensure the efficient delay until additional capacity exists at Gerry Shakley, System Operations use of the airspace, the FAA must take the airport. Services, Air Traffic Organization; steps to prevent congestion at an airport In SFAR No. 105, we discussed that Telephone: (202) 267–9424; E-mail: from disrupting or adversely affecting it may be necessary to extend this rule [email protected]. the air traffic system for which the FAA limiting unscheduled arrivals at O’Hare SUPPLEMENTARY INFORMATION: is responsible. Inordinate delays of the to coincide with a final rule addressing sort experienced at O’Hare in late 2003 scheduled arrivals, if adopted, or with Availability of Rulemaking Documents and much of 2004 can have a crippling an extension of the August 2004 Order. You can get an electronic copy using effect on other parts of the system, The NPRM addressing scheduled the Internet by: causing significant losses in time and arrivals at O’Hare was published on (1) Searching the Department of money for individuals and businesses, March 25, 2005 (70 FR 15520). Transportation’s electronic Docket Management System (DMS) Web page 1 49 U.S.C. 40103(a). 3 Operating Limitations at Chicago International (http://dms.dot.gov/search); 2 49 U.S.C. 40103(b)(1). Airport. Docket No. FAA–2004–16944.
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On November 2, 2005, we extended currently valid OMB control number. provide system delay benefits at the expiration date on SFAR No. 105 The OMB Control Number for this minimal cost. until March 31, 2006. On March 31, information collection is 2120–0694. Regulatory Flexibility Determination 2006, we extended the expiration date Executive Order 12866 and DOT 4 The Regulatory Flexibility Act of 1980 on No. 105 through October 28, 2006, Regulatory Policies and Procedures to maintain the current operating (RFA) establishes ‘‘as a principle of environment at the airport while we Changes to Federal regulations must regulatory issuance that agencies shall considered comments to the proposed undergo several economic analyses. endeavor, consistent with the objective rule for scheduled arrivals. First, Executive Order 12866 directs that of the rule and of applicable statutes, to On August 29, 2006, the FAA each Federal agency shall propose or fit regulatory and informational published the ‘‘Congestion and Delay adopt a regulation only upon a reasoned requirements to the scale of the Reduction at Chicago O’Hare determination that the benefits of the business, organizations, and International Airport’’ final rule. That intended regulation justify its costs. governmental jurisdictions subject to final rule codifies the limit on Second, the Regulatory Flexibility Act regulation.’’ To achieve that principle, scheduled arrivals initially imposed of 1980 requires agencies to analyze the the RFA requires agencies consider under the FAA’s August 2004 Order and economic impact of regulatory changes flexible regulatory proposals, to explain will expire on October 31, 2006. The on small entities. Third, the Trade the rationale for their actions, and to rationale supporting SFAR 105 remains Agreements Act (19 U.S.C. 2531–2533) solicit comments. The RFA covers a valid, in that the benefits achieved prohibits agencies from setting wide-range of small entities, including under the August 2004 Order and now standards that create unnecessary small businesses, not-for-profit expected to continue under the obstacles to the foreign commerce of the organizations and small governmental Congestion and Delay Reduction final United States. In developing U.S. jurisdictions. rule would dissipate if other operations standards, this Trade Act requires Agencies must perform a review to agencies to consider international at the airport were permitted to grow. determine whether a proposed or final standards and, where appropriate, to be Consequently, it is imperative to rule will have a significant economic the basis of U.S. standards. Fourth, the maintain the limits imposed by this impact on a substantial number of small Unfunded Mandates Reform Act of 1995 SFAR, during the same timeframe as the entities. If the agency determines that it (Pub. L. 104–4) requires agencies to Congestion and Delay Reduction final will, the agency must prepare a prepare a written assessment of the rule, until additional capacity is regulatory flexibility analysis as costs, benefits, and other effects of available at the airport. described in the RFA. Therefore, we find that notice and proposed or final rules that include a Federal mandate likely to result in the However, if an agency determines that comment procedures under 5 U.S.C. a proposed or final rule is not expected section 553(b) are impracticable and expenditure by State, local, or tribal governments, in the aggregate, or by the to have a significant economic impact contrary to the public interest. We on a substantial number of small further find that good cause exists to private sector, of $100 million or more annually adjusted for inflation). This entities, section 605(b) of the RFA make this rule effective in less than 30 provides that the head of the agency days. portion of the preamble summarizes the FAA’s analysis of the economic impact may so certify and a regulatory International Compatibility of this SFAR extension. flexibility analysis is not required. The The Department of Transportation certification must include a statement In keeping with U.S. obligations providing the factual basis for this under the Convention on International Order DOT 2100.5 prescribes policies and procedures for simplification, determination, and the reasoning should Civil Aviation, it is FAA policy to be clear. comply with International Civil analysis, and review of regulations. If This final rule extends the expiration Aviation Organization (ICAO) Standards the expected cost impact is so minimal date of SFAR No. 105, which provides and Recommended Practices to the that a rule does not warrant a full for fewer airport delays at a minimum maximum extent practicable. The FAA evaluation, this order permits a cost. Just as in the initial and final determined that there are no ICAO statement to that effect. The basis for the regulatory flexibility analyses, the FAA Standards and Recommended Practices minimal impact must be included in the expects there will be a substantial that correspond to these proposed preamble, if a full regulatory evaluation number of small entities affected by the regulations. of the cost and benefits is not prepared. Such a determination has been made for extension of this final SFAR, however, Paperwork Reduction Act this rule. The reasoning for that the economic effect will continue to be As required by the Paperwork determination follows: insignificant. Therefore, as the FAA Reduction Act of 1995 (44 U.S.C. In the preamble of SFAR No. 105, the Administrator, I certify that this action 3507(d)), the FAA submitted a copy of FAA stated that we might consider will not have a significant economic the new information collection extending SFAR 105 for a time period impact on a substantial number of small requirements(s) in this final rule to the that would coincide with a final rule entities. limiting scheduled operations. The FAA Office of Management and Budget Trade Impact Assessment (OMB) for its review. OMB approved the is extending this SFAR through October collection of this information and 31, 2008, to maintain the current level The Trade Agreements Act of 1979 assigned OMB Control Number 2120– of operations at O’Hare consistent with prohibits Federal agencies from 0694. the final rule published on August 29, engaging in any standards or related An agency may not collect or sponsor 2006, that addresses scheduled activities that create unnecessary the collection of information, nor may it operations at the airport. In the final obstacles to the foreign commerce of the impose an information collection economic assessment of SFAR No. 105, United States. Legitimate domestic requirement, unless it displays a the FAA found that the rule provided objectives, such as safety, are not system delay benefits at a minimal cost. considered unnecessary obstacles. The 4 The limits on unscheduled arrivals do not apply The FAA finds that this extension is statute also requires consideration of on Saturdays. cost beneficial and will continue to international standards and, where
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appropriate, that they be the basis for the executive order because it is not a deviation allows the new drawbridge to U.S. standards. ‘‘significant regulatory action’’ under remain closed-to-navigation each day The FAA has assessed the potential Executive Order 12866, and it is not from 10 a.m. to 2 p.m. beginning on effect of the extension of this final rule likely to have a significant adverse effect October 25, 2006 until and including and determined that it will not have an on the supply, distribution, or use of December 24, 2006, to facilitate effect on foreign commerce. energy. completion of the Outer Loop portion for the new Woodrow Wilson Bridge Unfunded Mandates Reform Act The Amendment construction project. The Unfunded Mandates Reform Act I For the reasons set forth above, the DATES: This deviation is effective from of 1995 (the Act), enacted as Pub. L. Federal Aviation Administration is 10 a.m. on October 25, 2006, until 2 104–4 on March 22, 1995, is intended, amending chapter I of title 14 Code of p.m. on December 24, 2006. among other things, to curb the practice Federal Regulations as follows: ADDRESSES: Materials referred to in this of imposing unfunded Federal mandates document are available for inspection or on State, local, and tribal governments. PART 93—SPECIAL AIR TRAFFIC copying at Commander (dpb), Fifth Title II of the Act requires each Federal RULES AND AIRPORT TRAFFIC Coast Guard District, Federal Building, agency to prepare a written statement 1st Floor, 431 Crawford Street, assessing the effects of any Federal I 1. The authority citation for part 93 continues to read as follows: Portsmouth, VA 23704–5004 between mandate in a proposed or final agency 8 a.m. and 4 p.m., Monday through rule that may result in a $100 million or Authority: 49 U.S.C. 106(g), 40103, 40106, Friday, except Federal holidays. The more expenditure (adjusted annually for 40109, 40113, 44502, 44514, 44701, 44719, 46301. telephone number is (757) 398–6222. inflation) in any one year by State, local, Commander (dpb), Fifth Coast Guard and tribal governments, in the aggregate, I 2. Section 9 of Special Federal District maintains the public docket for or by the private sector; such a mandate Aviation Regulation (SFAR) No. 105 is this temporary deviation. is deemed to be a ‘‘significant regulatory revised to read as follows: FOR FURTHER INFORMATION CONTACT: action.’’ The FAA currently uses an inflation-adjusted value of $120.7 Special Federal Aviation Regulation Waverly W. Gregory, Jr., Bridge million in lieu of $100 million. No. 105—Operating Limitations for Administrator, Fifth Coast Guard This final rule does not contain such Unscheduled Operations at Chicago’s District, at (757) 398–6222. a mandate. Therefore, the requirements O’Hare International Airport SUPPLEMENTARY INFORMATION: In June 2006, the southernmost portion of the of Title II of the Unfunded Mandates * * * * * Reform Act of 1995 do not apply. bascule spans for the new Woodrow Section 9. Expiration. This Special Wilson Memorial Bridge, at mile 103.8, Executive Order 13132, Federalism Federal Aviation Regulation expires at 9 across Potomac River between The FAA has analyzed this final rule p.m., Central Time, on October 31, 2008, Alexandria, Virginia and Oxon Hill, under the principles and criteria of unless sooner terminated. Maryland was publicly placed into Executive Order 13132, Federalism. We Issued in Washington, DC on October 26, service, switching I–95 Northbound determined that this action will not 2006. traffic onto the new Outer Loop portion have a substantial direct effect on the Marion C. Blakey, of the bridge. The newly-constructed States, or the relationship between the Administrator. portion of bridge will be required to national Government and the States, or [FR Doc. 06–9000 Filed 10–27–06; 12:36 pm] open for vessels in accordance with the on the distribution of power and BILLING CODE 4910–13–P current drawbridge operating responsibilities among the various regulations set out in 33 CFR 117.255(c). levels of government. Therefore, we While the drawbridge is operational, coordinators for the construction of the have determined that this final rule does DEPARTMENT OF HOMELAND new Woodrow Wilson Bridge Project not have federalism implications. SECURITY indicated that the bascule span is not Environmental Analysis Coast Guard yet fully commissioned and the work FAA Order 1050.1E identifies FAA continues through the rigorous testing actions that are categorically excluded 33 CFR Part 117 phase. Opening the new bascule span from preparation of an environmental for a vessel at this time would take assessment or environmental impact [CGD05–06–108] approximately 45 minutes in a best case statement under the National scenario. This has the potential to have RIN 1625–AA–09 Environmental Policy Act in the a significant impact upon I–95 traffic, absence of extraordinary circumstances. Drawbridge Operation Regulations; especially during the 10 a.m. to 2 p.m. The FAA has determined this proposed Potomac River, Between Maryland and bridge-opening time frame currently rulemaking action qualifies for the Virginia available for commercial vessels, in categorical exclusion identified in accordance with 33 CFR 117.255(c). paragraph 312f, and involves no AGENCY: Coast Guard, DHS. Coordinators requested a temporary extraordinary circumstances. ACTION: Notice of temporary deviation deviation from the current operating from regulations. regulation for the new Woodrow Wilson Regulations That Significantly Affect Memorial (I–95) Bridge set out in 33 Energy Supply, Distribution, or Use SUMMARY: The Commander, Fifth Coast CFR 117.255(c). The FAA has analyzed this final rule Guard District, has approved a Though good progress has been made under Executive Order 13211, Actions temporary deviation from the regarding commissioning of the north Concerning Regulations that regulations governing the operation of and south drawbridges (both now Significantly Affect Energy Supply, the new Woodrow Wilson Memorial carrying I–95 vehicle traffic), the Distribution, or Use (66 FR 28355, May (I–95) Bridge, mile 103.8, across coordinators are requesting an 18, 2001). We have determined that it is Potomac River between Alexandria, additional two months of the 10 a.m. to not a ‘‘significant energy action’’ under Virginia and Oxon Hill, Maryland. This 2 p.m. restriction of bridge operation to
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proceed with commissioning activities DEPARTMENT OF HOMELAND enforcement vessel on scene will advise through December 24, 2006. From a SECURITY mariners of the restriction. river-user standpoint, the coordinators Background and Purpose have received no requests from boaters Coast Guard or mariners to open during the 10 a.m. Kelly Brothers construction was to 2 p.m. timeframe since the restriction 33 CFR Part 165 contracted by Lee County Department of was issued in late June 2006. In fact, no Transportation to replace the fender [COTP Sector St. Petersburg 06–195] system on the Cape Coral Bridge on the requests have been received for an Caloosahatchee River. The replacement opening of the new bridge at all since RIN 1625–AA00 will include demolition of the existing July 3, 2006. Finally, the coordinators Safety Zone; Caloosahatchee River, FL fender piles, installation of new fender have received no complaints on the 10 piles, and installation of the fender a.m. to 2 p.m. restriction. AGENCY: Coast Guard, DHS. timbers. The replacement will require a The coordinators requested that the ACTION: Temporary final rule. tug and barge to be placed in the new Outer Loop portion of the new navigable channel partially blocking the drawbridge not be available for SUMMARY: The Coast Guard is channel. The unaffected portion openings for vessels each day between establishing a temporary safety zone on (approximately 45 feet) will remain the hours of 10 a.m. to 2 p.m. from the waters of the Caloosahatchee River, unobstructed and open for traffic. The Florida in the vicinity of the Cape Coral Monday, October 25 through December nature of this work and the close Bridge while repair operations are being 24, 2006 or until the bridge is properly proximity of the channel present a conducted. This rule is necessary to commissioned, whichever comes first. hazard to mariners transiting the area. ensure the safety of the construction The temporary deviation will only affect This safety zone is being established to workers and mariners on the navigable ensure the safety of life on the navigable vessels with mast heights of 75 feet or waters of the United States. greater as the existing drawbridge is able waters of the United States. DATES: This rule is effective from 6 a.m. to open in accordance with the current on September 18 through 6 p.m. on Discussion of Rule operating regulations set out in 33 CFR December 22, 2006. The safety zone encompasses the 117.255(a). Management of the Federal ADDRESSES: following waters of the Caloosahatchee and auxiliary channels will continue to Documents indicated in this preamble as being available in the River, Florida: all waters from surface to be closely coordinated between the docket are part of docket [COTP 06–195] bottom within 5 feet of the construction coordinators for the construction of the and are available for inspection or barge and accompanying tug that are new Woodrow Wilson Bridge Project, copying at Coast Guard Sector St. working on the bridge fender system the Coast Guard and vessels requesting Petersburg, Prevention Department, 155 during the repair hours of 7 a.m. to 6 transit through the construction zone. Columbia Drive, Tampa, Florida 33606– p.m. Monday through Friday. Vessels Furthermore, all affected vessels with 3598 between 7:30 a.m. and 3:30 p.m., and persons are prohibited from mast heights greater than 75 feet will be Monday through Friday, except Federal anchoring, mooring, or transiting within able to receive an opening of the new holidays. this zone, unless authorized by the drawbridge in the ‘‘off-peak’’ vehicle Captain of the Port Sector St. Petersburg FOR FURTHER INFORMATION CONTACT: LT or his designated representative. The traffic hours (evening and overnight) in Ronaydee Marquez at Coast Guard zone is effective from 6 a.m. on accordance with 33 CFR 117.255(c). Sector St. Petersburg (813) 228–2191 Ext September 18 through 6 p.m. on Maintaining the new drawbridge in the 8307. closed-to-navigation position each day December 22, 2006. Enforcement of the SUPPLEMENTARY INFORMATION: from 10 a.m. to 2 p.m. on October 25, zone will be from 7 a.m. to 6 p.m. every 2006 through December 24, 2006 will Regulatory Information Monday through Friday during the effective period. On-scene notice will be help reduce the impact to vehicular We did not publish a notice of traffic during this phase of new bridge provided by local law enforcement proposed rulemaking (NPRM) for this marine units enforcing the safety zone. construction. regulation. Under 5 U.S.C. 553(b)(B), the The Coast Guard has informed the Coast Guard finds that good cause exists Regulatory Evaluation known users of the waterway of the for not publishing an NPRM. The Coast This rule is not a ‘‘significant closure period for the bridge so that Guard received notification of the regulatory action’’ under section 3(f) of these vessels can arrange their transits construction only fourteen days prior to Executive Order 12866, Regulatory to minimize any impact caused by the the start of the construction, which was Planning and Review, and does not temporary deviation. not enough time to publish an NPRM. require an assessment of potential costs Publishing an NPRM and delaying its In accordance with 33 CFR 117.35(c), and benefits under section 6(a)(3) of that effective date would be contrary to the Order. The Office of Management and this work will be performed with all due public interest since immediate action is Budget has not reviewed it under that speed in order to return the bridge to needed to minimize potential danger to Order. normal operation as soon as possible. the construction workers and mariners We expect the economic impact of This deviation from the operating transiting the area. The Coast Guard will this rule to be so minimal that a full regulations is authorized under 33 CFR issue a broadcast notice to mariners to Regulatory Evaluation is unnecessary. 117.35. advise mariners of the restriction. The rule will only be enforced for a Dated: October 20, 2006. For the same reasons, under 5 U.S.C. limited amount of time. Moreover, 553(d)(3), the Coast Guard finds that Waverly W. Gregory, Jr., vessels may still transit the unaffected good cause exists for making this rule portion of the channel. Chief, Bridge Administration Branch, Fifth effective less than 30 days after Coast Guard District. publication in the Federal Register. The Small Entities [FR Doc. E6–18332 Filed 10–31–06; 8:45 am] Coast Guard will issue a broadcast Under the Regulatory Flexibility Act BILLING CODE 4910–15–P notice to mariners and a local law (5 U.S.C. 601–612), we have considered
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whether this rule would have a effect on State or local governments and it is not a ‘‘significant regulatory action’’ significant economic impact on a would either preempt State law or under Executive Order 12866 and is not substantial number of small entities. impose a substantial direct cost of likely to have a significant adverse effect The term ‘‘small entities’’ comprises compliance on them. We have analyzed on the supply, distribution, or use of small businesses, not-for-profit this rule under that Order and have energy. The Administrator of the Office organizations that are independently determined that it does not have of Information and Regulatory Affairs owned and operated and are not implications for federalism. has not designated it as a significant dominant in their fields, and Unfunded Mandates Reform Act energy action. Therefore, it does not governmental jurisdictions with require a Statement of Energy Effects populations of less than 50,000. The Unfunded Mandates Reform Act under Executive Order 13211. The Coast Guard certifies under 5 of 1995 (2 U.S.C. 1531–1538) requires U.S.C. 605(b) that this rule will not have Federal agencies to assess the effects of Technical Standards a significant economic impact on a their discretionary regulatory actions. In substantial number of small entities. particular, the Act addresses actions The National Technology Transfer This rule may affect the following that may result in the expenditure by a and Advancement Act (NTTAA) (15 entities, some of which may be small State, local, or tribal government, in the U.S.C. 272 note) directs agencies to use entities: the owners or operators of aggregate, or by the private sector of voluntary consensus standards in their vessels intending to transit near the $100,000,000 or more in any one year. regulatory activities unless the agency Cape Coral Bridge from 6 a.m. on Though this rule will not result in such provides Congress, through the Office of September 18 through 6 p.m. on an expenditure, we do discuss the Management and Budget, with an December 22, 2006. The nature of the effects of this rule elsewhere in this explanation of why using these operation will require the channel to be preamble. standards would be inconsistent with partially blocked, however the applicable law or otherwise impractical. Taking of Private Property unaffected portion (approximately 45 Voluntary consensus standards are feet) will remain unobstructed and open This rule will not effect a taking of technical standards (e.g., specifications for traffic. This safety zone will not have private property or otherwise have of materials, performance, design, or a significant economic impact on a taking implications under Executive operation; test methods; sampling substantial number of small entities Order 12630, Governmental Actions and procedures; and related management because this rule will be enforced in a Interference with Constitutionally systems practices) that are developed or place where marine traffic is expected to Protected Property Rights. adopted by voluntary consensus be minimal. Civil Justice Reform standards bodies. Assistance for Small Entities This rule meets applicable standards This rule does not use technical Under section 213(a) of the Small in sections 3(a) and 3(b)(2) of Executive standards. Therefore, we did not Business Regulatory Enforcement Order 12988, Civil Justice Reform, to consider the use of voluntary consensus Fairness Act of 1996 (Pub. L. 104–121), minimize litigation, eliminate standards. we want to assist small entities in ambiguity, and reduce burden. Environment understanding the rule so they can Protection of Children better evaluate its effects on them and We have analyzed this rule under participate in the rulemaking process. We have analyzed this rule under Commandant Instruction M16475.lD Small entities may contact the person Executive Order 13045, Protection of and Department of Homeland Security listed under FOR FURTHER INFORMATION Children from Environmental Health Management Directive 5100.1, which CONTACT for assistance in understanding Risks and Safety Risks. This rule is not guide the Coast Guard in complying and participating in this rulemaking. an economically significant rule and with the National Environmental Policy Small businesses may also send does not create an environmental risk to Act of 1969 (NEPA) (42 U.S.C. 4321– comments on the actions of Federal health or risk to safety that may 4370f), and have concluded that there employees who enforce, or otherwise disproportionately affect children. are no factors in this case that would determine compliance with, Federal Indian Tribal Governments limit the use of a categorical exclusion regulations to the Small Business and This rule does not have tribal under section 2.B.2 of the Instruction. Agriculture Regulatory Enforcement Therefore, this rule is categorically Ombudsman and the Regional Small implications under Executive Order 13175, Consultation and Coordination excluded, under figure 2–1, paragraph Business Regulatory Fairness Boards. (34)(g), of the Instruction, from further The Ombudsman evaluates these with Indian Tribal Governments, because it does not have a substantial environmental documentation. A final actions annually and rates each agency’s ‘‘Environmental Analysis Check List’’ responsiveness to small business. If you direct effect on one or more Indian tribes, on the relationship between the and a final ‘‘Categorical Exclusion wish to comment on actions by Determination’’ are available in the employees of the Coast Guard, call Federal Government and Indian tribes, docket where indicated under 1–888–REG–FAIR (1–888–734–3247). or on the distribution of power and responsibilities between the Federal ADDRESSES. Collection of Information Government and Indian tribes. List of Subjects in 33 CFR Part 165 This rule calls for no new collection Energy Effects of information under the Paperwork Harbors, Marine safety, Navigation Reduction Act of 1995 (44 U.S.C. 3501– We have analyzed this rule under (water), Reporting and recordkeeping 3520). Executive Order 13211, Actions requirements, Security measures, Concerning Regulations That Waterways. Federalism Significantly Affect Energy Supply, A rule has implications for federalism Distribution, or Use. We have I For the reasons discussed in the under Executive Order 13132, determined that it is not a ‘‘significant preamble, the Coast Guard amends 33 Federalism, if it has a substantial direct energy action’’ under that order because CFR part 165 as follows:
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PART 165—REGULATED NAVIGATION DEPARTMENT OF HOMELAND publication in the Federal Register. The AREAS AND LIMITED ACCESS AREAS SECURITY Coast Guard will issue a broadcast notice to mariners and local law I 1. The authority citation for part 165 Coast Guard enforcement vessels will be in the continues to read as follows: vicinity of this zone to advise mariners 33 CFR Part 165 of the restriction. Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 U.S.C. 191, 195; 33 CFR [COTP St. Petersburg 06–219] Background and Purpose 1.05–1(g), 6.04–1, 6.04–6, and 160.5; Public RIN 1625–AA00 Law 107–295, 116 Stat. 2064; Department of Boh Brothers Construction will be performing construction work on the Homeland Security Delegation No. 0170.1. Safety Zone; Sanibel Island Bridge Sanibel Island Bridge between October Span A, Ft. Myers Beach, FL I 2. Add a new temporary § 165.T07– 2006 and March 2007. This work will 195 to read as follows: AGENCY: Coast Guard, DHS. involve setting girders, setting the deck, ACTION: Temporary final rule. setting overhangs, placing resteel, § 165.T07–195 Safety Zone; pouring the bridge deck, and wrecking Caloosahatchee River, Florida. SUMMARY: The Coast Guard is the old bridge’s deck on the Sanibel establishing a temporary safety zone on Island Bridge span ‘‘A’’. These (a) Location. The Coast Guard is the waters of San Carlos Bay, Florida in operations will require placing a barge establishing a temporary safety zone on the vicinity of the Sanibel Island Bridge in the navigational channel. The nature the waters of the Caloosahatchee River, span ‘‘A’’ while bridge construction is of this work and the close proximity of Florida, in the vicinity of the Cape Coral conducted. This rule is necessary to the channel present a hazard to Bridge, that includes all the waters from ensure the safety of the construction mariners transiting the area. This safety surface to bottom, within a 5 foot radius workers and mariners on the navigable zone is being established to ensure the of the construction barge and waters of the United States. safety of life on the navigable waters of accompanying tug that are working on DATES: This rule is effective from 6 a.m. the United States. the bridge fender system. on October 16, 2006 through 9 p.m. on Discussion of Rule (b) Definitions. The following March 31, 2007. definitions apply to this section: ADDRESSES: Documents indicated in this The safety zone encompasses the Designated representative means preamble as being available in the following waters of San Carlos Bay, Florida: All waters from surface to Coast Guard Patrol Commanders docket are part of docket [COTP 06–219] bottom, within a 400 foot radius of the including Coast Guard coxswains, petty and are available for inspection or copying at Coast Guard Sector St. following coordinates: 26°28′59″ N, officers and other officers operating Petersburg, Prevention Department, 155 082°00′52″ W. Vessels are prohibited Coast Guard vessels, and federal, state, Columbia Drive, Tampa Florida 33606– from anchoring, mooring, or transiting and local officers designated by or 3598 between 7:30 a.m. and 3:30 p.m., within this zone, unless authorized by assisting the Captain of the Port (COTP) Monday through Friday, except Federal the Captain of the Port Sector St. St. Petersburg, Florida, in the holidays. Petersburg or his designated enforcement of regulated navigation FOR FURTHER INFORMATION CONTACT: representative. areas and safety and security zones. Waterways Management Division at This rule is effective from 6 a.m. on (c) Regulations. In accordance with Coast Guard Sector St. Petersburg (813) October 16, 2006 through 9 p.m. on the general regulations in § 165.23 of 228–2191, Ext 8307. March 31, 2007. However, the safety this part, no person or vessel may SUPPLEMENTARY INFORMATION: zone will only be enforced from 6 a.m. anchor, moor or transit the safety zone until 9 p.m. daily on certain dates without the prior permission of the Regulatory Information during that time while construction Captain of the Port St. Petersburg, We did not publish a notice of operations are occurring. The Coast Florida, or his designated proposed rulemaking (NPRM) for this Guard does not know the exact dates of representative. regulation. Under 5 U.S.C. 553(b)(B), the the construction operations at this time, Coast Guard finds that good cause exists but Coast Guard Sector St. Petersburg (d) Date. This rule is effective from 6 for not publishing an NPRM. The bridge will give notice of the enforcement of a.m. on September 18, 2006 through 6 contractor did not provide the the safety zone by issuing Broadcast p.m. on December 22, 2006 and will be information about the bridge Notice to Mariners 24 to 48 hours prior enforced from 7 a.m. to 6 p.m. every construction with sufficient time to to the start of enforcement. On-Scene Monday through Friday during the publish an NPRM. The Coast Guard did notice will be provided by Coast Guard effective period. not receive the scope of work for the or other local law enforcement maritime Dated: September 15, 2006. remaining construction until September units enforcing the safety zone as J.A. Servidio, 28, 2006 at a meeting held with the designated representatives of Captain of contractors. Publishing an NPRM would the Port Sector St. Petersburg. Captain, U.S. Coast Guard, Captain of the Port St. Petersburg, Florida. have been contrary to the public interest Regulatory Evaluation since immediate action is needed to [FR Doc. E6–18333 Filed 10–31–06; 8:45 am] minimize potential danger to the This rule is not a ‘‘significant BILLING CODE 4910–15–P construction workers and mariners regulatory action’’ under section 3(f) of transiting the area. The Coast Guard will Executive Order 12866, Regulatory issue a broadcast notice to mariners to Planning and Review, and does not advise mariners of the restriction. require an assessment of potential costs For the same reasons, under 5 U.S.C. and benefits under section 6(a)(3) of that 553(d)(3), the Coast Guard also finds Order. The Office of Management and that good cause exists for making this Budget has not reviewed it under that rule effective less than 30 days after Order.
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We expect the economic impact of employees of the Coast Guard, call Federal Government and Indian tribes, this rule to be so minimal that a full 1–888–REG–FAIR (1–888–734–3247). or on the distribution of power and Regulatory Evaluation is unnecessary. responsibilities between the Federal Collection of Information This rule will only be enforced when Government and Indian tribes. This rule calls for no new collection vessel traffic is expected to be minimal, Energy Effects and traffic will be allowed to enter the of information under the Paperwork zone with the permission of the Captain Reduction Act of 1995 (44 U.S.C. 3501– We have analyzed this rule under of the Port Sector St. Petersburg or 3520). Executive Order 13211, Actions designated representative. Concerning Regulations That Federalism Significantly Affect Energy Supply, Small Entities A rule has implications for federalism Distribution, or Use. We have Under the Regulatory Flexibility Act under Executive Order 13132, determined that it is not a ‘‘significant (5 U.S.C. 601–612), we have considered Federalism, if it has a substantial direct energy action’’ under that order because whether this rule would have a effect on State or local governments and it is not a ‘‘significant regulatory action’’ significant economic impact on a would either preempt State law or under Executive Order 12866 and is not substantial number of small entities. impose a substantial direct cost of likely to have a significant adverse effect The term ‘‘small entities’’ comprises compliance on them. We have analyzed on the supply, distribution, or use of small businesses, not-for-profit this rule under that Order and have energy. The Administrator of the Office organizations that are independently determined that it does not have of Information and Regulatory Affairs owned and operated and are not implications for federalism. has not designated it as a significant energy action. Therefore, it does not dominant in their fields, and Unfunded Mandates Reform Act governmental jurisdictions with require a Statement of Energy Effects populations of less than 50,000. The Unfunded Mandates Reform Act under Executive Order 13211. of 1995 (2 U.S.C. 1531–1538) requires The Coast Guard certifies under 5 Technical Standards Federal agencies to assess the effects of U.S.C. 605(b) that this rule will not have their discretionary regulatory actions. In The National Technology Transfer a significant economic impact on a particular, the Act addresses actions and Advancement Act (NTTAA) (15 substantial number of small entities. that may result in the expenditure by a U.S.C. 272 note) directs agencies to use This rule may affect the following State, local, or tribal government, in the voluntary consensus standards in their entities, some of which may be small aggregate, or by the private sector of regulatory activities unless the agency entities: The owners or operators of $100,000,000 or more in any one year. provides Congress, through the Office of vessels intending to transit near the Though this rule will not result in such Management and Budget, with an Sanibel Island Bridge span ‘‘A’’ from 6 an expenditure, we do discuss the explanation of why using these a.m. on October 16, 2006 through 9 p.m. effects of this rule elsewhere in this standards would be inconsistent with on March 31, 2007. This safety zone will preamble. applicable law or otherwise impractical. not have a significant economic impact Voluntary consensus standards are on a substantial number of small entities Taking of Private Property technical standards (e.g., specifications for the following reasons. This rule will This rule will not effect a taking of of materials, performance, design, or only be enforced when vessel traffic is private property or otherwise have operation; test methods; sampling expected to be minimal, and traffic will taking implications under Executive procedures; and related management be allowed to enter the zone with the Order 12630, Governmental Actions and systems practices) that are developed or permission of the Captain of the Port Interference with Constitutionally adopted by voluntary consensus Sector St. Petersburg or designated Protected Property Rights. standards bodies. representative. This rule does not use technical Civil Justice Reform Assistance for Small Entities standards. Therefore, we did not This rule meets applicable standards consider the use of voluntary consensus Under section 213(a) of the Small in sections 3(a) and 3(b)(2) of Executive standards. Business Regulatory Enforcement Order 12988, Civil Justice Reform, to Environment Fairness Act of 1996 (Pub. L. 104–121), minimize litigation, eliminate we want to assist small entities in ambiguity, and reduce burden. We have analyzed this rule under understanding the rule so that they can Commandant Instruction M16475.lD better evaluate its effects on them and Protection of Children and Department of Homeland Security participate in the rulemaking process. We have analyzed this rule under Management Directive 5100.1, which Small entities may contact the office Executive Order 13045, Protection of guide the Coast Guard in complying listed under FOR FURTHER INFORMATION Children from Environmental Health with the National Environmental Policy CONTACT for assistance in understanding Risks and Safety Risks. This rule is not Act of 1969 (NEPA) (42 U.S.C. 4321– and participating in this rulemaking. an economically significant rule and 4370f), and have concluded that there Small businesses may also send does not create an environmental risk to are no factors in this case that would comments on the actions of Federal health or risk to safety that may limit the use of a categorical exclusion employees who enforce, or otherwise disproportionately affect children. under section 2.B.2 of the Instruction. determine compliance with, Federal Therefore, this rule is categorically regulations to the Small Business and Indian Tribal Governments excluded, under figure 2–1, paragraph Agriculture Regulatory Enforcement This rule does not have tribal (34)(g), of the Instruction, from further Ombudsman and the Regional Small implications under Executive Order environmental documentation. A final Business Regulatory Fairness Boards. 13175, Consultation and Coordination ‘‘Environmental Analysis Check List’’ The Ombudsman evaluates these with Indian Tribal Governments, and a final ‘‘Categorical Exclusion actions annually and rates each agency’s because it does not have a substantial Determination’’ are available in the responsiveness to small business. If you direct effect on one or more Indian docket where indicated under wish to comment on actions by tribes, on the relationship between the ADDRESSES.
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List of Subjects in 33 CFR Part 165 Broadcast Notice to Mariners 24 to 48 testing methods and to ensure the Harbors, Marine safety, Navigation hours prior to the start of enforcement. integrity of mailpieces containing (water), Reporting and recordkeeping Additionally, on-scene notice will be sharps and other medical waste. provided by Coast Guard or other local requirements, Security measures, Documentation Requirements Waterways. law enforcement maritime units enforcing the safety zone. Three commenters objected to the I For the reasons discussed in the requirement that vendors provide a list preamble, the Coast Guard amends 33 Dated: October 16, 2006. of distributors to the Postal Service. All CFR Part 165 as follows: J.A. Servidio, three commenters argued that requiring Captain, U.S. Coast Guard, Captain of the vendors to provide a quarterly list of PART 165–REGULATED NAVIGATION Port Sector St. Petersburg, Florida. distributors could lead to disclosure of AREAS AND LIMITED ACCESS AREAS [FR Doc. E6–18392 Filed 10–31–06; 8:45 am] sensitive proprietary vendor BILLING CODE 4910–15–P I 1. The authority citation for part 165 information. We agree that the Postal continues to read as follows: Service can identify a vendor’s distributors, if needed, by requiring Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. POSTAL SERVICE vendors to provide this information on Chapter 701; 50 U.S.C. 191, 195; 33 CFR request. Therefore, the final rule 1.05–1(g), 6.04–1, 6.04–6, and 160.5; Pub. L. 39 CFR Part 111 requires vendors to provide the names, 107–295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1. addresses, and telephone numbers of New Standards for Mailing Sharps and their distributors to the Postal Service I 2. Add temporary § 165.T07–219 to Other Regulated Medical Waste only on request. read as follows: Containers Packaging AGENCY: Postal Service. § 165.T07—219 Safety Zone; Ft. Myers One commenter objected to a Beach, Florida. ACTION: Final rule. minimum size limit for the biohazard (a) Location. The Coast Guard is SUMMARY: The Postal Service revises the symbol placed on the outer shipping establishing a temporary safety zone on standards for mailing sharps and other container. The commenter stated that the waters of San Carlos Bay, Florida, in regulated medical waste containers. The requiring a 3 inch by 4 inch symbol the vicinity of the Sanibel Island Bridge new standards include improvements to would be excessively large on a small span ‘‘A’’. This safety zone includes all the packaging, the package testing, and mailpiece. The Postal Service notes that waters from surface to bottom, within a the process for authorizing and currently no approved medical waste 400 foot radius extending from the suspending authorization. mailpieces are so small as to not easily center portion of span ‘‘A’’ at the accommodate a 3 inch by 4 inch DATES: following coordinates: 26°28′59″ N, Effective Date: November 9, biohazard symbol. The new standard 082°00′52″ W. All coordinates 2006. will clarify that the 3 inch by 4 inch referenced use datum: NAD 83. FOR FURTHER INFORMATION CONTACT: Bert label requirement applies to the outer (b) Definitions. The following Olsen, 202–268–7276. shipping container. For safety reasons, definitions apply to this section: SUPPLEMENTARY INFORMATION: medical waste containers must be easily Designated representative means identified as containing biohazardous Coast Guard Patrol Commanders Background materials. Therefore, this final rule including Coast Guard coxswains, petty We published a proposed rule in the adopts the standard as published in the officers and other officers operating Federal Register (71 FR 19840, April 18, proposal. Coast Guard vessels, and Federal, State, 2006) to revise the standards for mailing Three commenters did not want the and local officers designated by or sharps and other regulated medical Postal Service to eliminate the use of assisting the Captain of the Port Sector waste containers. Our proposal included outer shipping containers with St. Petersburg, Florida, in the the following changes: interlocking bottoms. All three enforcement of regulated navigation 1. To require container vendors to commenters stated that current areas and safety and security zones. provide the Postal Service with the requirements that allow for the use of (c) Regulations. In accordance with names and addresses of their shipping containers with interlocking the general regulations in § 165.23 of distributors and to provide updates on bottom flaps reinforced with tape are this part, no person or vessel may a quarterly basis. more than adequate, especially anchor, moor or transit the Regulated 2. To revise the process for considering the overall rigorous testing Area without the prior permission of the authorizing and suspending mandates. After further consultation Captain of the Port Sector St. Petersburg, authorization for mailing sharps and with package testing professionals, we Florida, or his designated other regulated medical waste conclude that interlocking bottom flaps representative. containers to enhance monitoring and sufficiently contain the primary (d) Dates. This rule is effective from control of medical waste in the mail. receptacle, particularly when reinforced 6 a.m. on October 16, 2006 through 9 3. To revise container standards and with tape. Therefore, we will maintain p.m. on March 31, 2007. container testing standards to ensure our current standards that allow (e) Enforcement period. This that container testing is performed on a interlocking bottoms when they are regulated area will only be enforced consistent basis for all sharps and other reinforced with water-resistant tape. during specific periods between the regulated medical waste containers. Two commenters requested dates specified in paragraph (d), while clarification of the proposed changes to construction operations are taking place. Comments Received the secondary container requirements. The Coast Guard does not know the We received comments from four The commenters stated that increasing exact dates of the construction authorized sharps container vendors the plastic bag thickness requirement operations at this time, however Sector and one potential vendor. All from 3 mil to 4 mil was not necessary. St. Petersburg will announce each commenters supported the concept of In addition, they stated that it was not enforcement period by issuing revising the rules to promote uniform advantageous to require the plastic bag
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to be placed around the secondary box. Our criteria allow for air leakage around List of Subjects in 39 CFR Part 111 We believe that increasing the thickness the opening of the primary container as Administrative practice and of the plastic bag will help maintain the long as there is no air leakage anywhere procedure, Postal Service. contents of the primary container else and no leakage of water. We agree should it break. Therefore, we will that it would be clearer, in this case, to I Accordingly, 39 CFR part 111 is require plastic bags to be 4 mil thick. eliminate the reference and to provide amended as follows: However, we will not require the plastic only the USPS test procedure and pass/ PART 111—[AMENDED] bag to be placed outside the secondary fail criteria. box. One commenter requested I 1. The authority citation for 39 CFR Two commenters requested clarification on the height of the part 111 continues to read as follows: clarification of the proposed standards required drop tests. Our proposed rule in section 601.10.17.7b4 of Mailing Authority: 5 U.S.C. 552(a); 39 U.S.C. 101, requires 30-foot drops for the wet and 401, 403, 404, 414, 416, 3001–3011, 3201– Standards of the United States Postal cold tests as identified in 49 CFR 3219, 3403–3406, 3621, 3626, 5001. Service, Domestic Mail Manual (DMM). 178.609e and f. The impact test requires We revised this section to clarify that a drop of 3 feet as identified in 49 CFR I 2. Revise the following sections of the absorbent material must be placed in 178.609h. While we understand that the Mailing Standards of the United States the primary receptacle. Item e10 will test identified in 49 CFR consists of Postal Service, Domestic Mail Manual serve as the required test to ensure that requirements for packaging infectious (DMM), as follows: the secondary system is watertight. substances, we believe that the Postal One commenter suggested that the 600 Basic Standards for All Mailing Service’s handling and transportation Services Postal Service require screw caps for systems are different from those of primary containers. Historical data on commercial carriers and require more 601 Mailability safely mailing these mailpieces does not stringent acceptance criteria. Therefore, * * * * * indicate a need to require screw caps. this final rule adopts the standard as Therefore, this final rule adopts the published in the proposal. 10.0 Hazardous Materials standard as published in the proposal. One commenter suggested that testing * * * * * Mailpiece Testing material should be simulated medical 10.17 Infectious Substances (Hazard One commenter objected to the waste. We disagree. The testing material Class 6, Division 6.2) requirement that mailpieces be tested at should consist of sharps or other the vendor’s identified maximum regulated medical waste as defined in * * * * * [Revise title of 10.17.7 as follows:] weight and that the container’s DMM 601.10.17.2e and g. Vendors are maximum allowable weight be printed on notice that contaminated medical 10.17.7 Sharps Medical Waste and on the outer shipping container. The waste will not be used for testing Regulated Medical Waste Containers purposes. Therefore, this final rule commenter stated that it was impossible [Replace ‘‘distributor or to predict the maximum weight of the adopts the standard as published in the proposal. manufacturer’’ with ‘‘vendor’’ materials that might be placed into a throughout 10.17.7.] container and that end users would not Mailpiece Acceptance have scales to weigh the mailpiece. We * * * * * believe, in the interest of safety, that One commenter objected to [Add new authorization information these mailpieces should be tested at the requirements that vendors retrieve to the end of item a1 as follows:] 1. * * * Vendors that market their highest possible weight determined by improperly labeled containers when containers to distributors are the vendor, not to exceed 25 pounds, to identified and held at plants. The responsible for disposal and cleanup ensure that the mailpiece can safely commenter suggested that the Postal costs attributed to those containers. In contain the maximum weight. Service should confirm the mailpiece addition, vendors must provide a list of Therefore, this final rule adopts the was properly marked and labeled before distributors, including firm names, requirements as published in the accepting it. While we continually addresses, and telephone numbers, to proposal. educate employees on acceptance One commenter suggested that the criteria, the mailer remains responsible the Postal Service on request. Postal Service require accreditation of for properly labeling the mailpiece. * * * * * package testing facilities. Section Therefore, this final rule adopts the [Revise item a3 to add ‘‘name’’ and 601.10.17.7d of the proposed rule states requirement as published in the ‘‘phone number’’ as follows:] ‘‘the Postal Service may require proof of proposal. 3. Name, address, and phone number accreditation or other documentation to This final rule will be effective on of each storage and disposal site. support the credentials of an November 9, 2006. Sharps and other * * * * * independent testing facility.’’ We regulated medical waste containers that [Add text at the end of item a8 as believe that this standard provides the are currently approved for mailing can follows:] authority to require proof of credentials maintain their authorization until it 8. * * * and verification that the as necessary. Therefore, this final rule expires (24 months from the most recent merchandise return service (MRS) adopts the standard as published in the approval). Containers must meet the permit fee and accounting fee have been proposal. new standards if they are submitted for paid. One commenter questioned the need authorization (or renewal of [Add new item a9 as follows:] for a reference to 49 CFR 178.604, Leak- authorization) on or after November 9. 9. Address of the post office or proof test. The commenter stated that We adopt the following amendments postage due unit where the containers we should not refer to the test because to Mailing Standards of the United are delivered. our pass/fail criteria were not the same States Postal Service, Domestic Mail * * * * * as the criteria in 49 CFR. The test in 49 Manual (DMM), incorporated by [Revise the package testing CFR 178.604 requires that the primary reference in the Code of Federal information in item b1 by replacing the container hold 20 kPa without leakage. Regulations. See 39 CFR 111.1. last sentence as follows:]
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1. * * * Package testing results must and the effectiveness of the packaging shipping container and on the assembly show that the contents of the primary would not be significantly reduced. The and closing instructions included with container did not penetrate through the Postal Service may require proof of each mailpiece. Each mailpiece is primary container during package accreditation or other documentation to prepared as it would be for mailing and testing and that the primary container support the credentials of an subjected to the water spray as can maintain its integrity at independent testing facility. described in the test. A separate, temperatures as low as 0°F and as high [Add new item e as follows:] untested mailpiece is used for each drop as 120°F. e. Testing Criteria. Each mailpiece orientation: Top, longest side, shortest [Revise the third sentence of item b2 must pass each of the tests described side, and corner. The pass/fail criteria to read ‘‘4 mil’’ as follows:] below: are: No rupture, cracking, or splitting of 2. * * * If one of the components is 1. Leak-proof test. The test must be any primary receptacle, and no contents a plastic bag, the bag must be at least 4 conducted on one primary receptacle may penetrate into or through the body mil in thickness and must be used in with the lid in place, without the or lid of any primary receptacle. conjunction with a fiberboard box. secondary and outer packaging. The test 5. Cold drop test. Five mailpieces *** duration must be at least 5 minutes and filled with sharps or other regulated must be conducted at 20 kPa (3 psi). The * * * * * medical waste must withstand the test [Revise item b4 by replacing ‘‘a pass/fail criterion is: No air leakage from in 49 CFR 178.609f. Each test mailpiece watertight barrier’’ with ‘‘the primary anywhere other than the closure of the is filled with sharps or other regulated receptacle’’ as follows:] primary receptacle. Air leakage at the medical waste to the vendor-identified 4. There must be enough material closure is not considered a failure if the maximum weight, not to exceed 25 within the primary receptacle * * * primary receptacle passes the test for pounds, as indicated on the outer [Revise item b5 as follows:] watertightness as determined by placing shipping container and on the assembly 5. Each mailpiece must not weigh 50 ml of deionized water into the and closing instructions included with more than 25 pounds. The container’s primary receptacle, securing the closure, each mailpiece. Each mailpiece is maximum allowable weight must be and then turning the container on its prepared as it would be for mailing and printed on the outside of the box and on side and observing for any evidence of chilled as described in the test. A the assembly and closure instructions leakage. Any evidence of water leaking separate, untested mailpiece is used for included with each mailpiece. The from the primary receptacle is a failure. each drop orientation: Top, longest side, 2. Stacking test. One mailpiece must mailpiece must be tested at the shortest side, and corner. The pass/fail withstand the test in 49 CFR 178.606. maximum allowable weight identified criteria are: No rupture, cracking, or The dynamic compression test must be by the vendor. splitting of any primary receptacle, and conducted on the empty, unsealed no contents may penetrate into or * * * * * mailpiece assembled for mailing, through the body or lid of any primary [Add a new sentence at the end of without the primary receptacle(s). The receptacle. item c1 as follows:] test mass is the vendor-identified 6. Impact test. One mailpiece filled 1. * * * Place the label on the top or maximum weight, not to exceed 25 with sharps or other regulated medical on a side of the container. pounds, as indicated on the outer waste must withstand the test in 49 CFR [Add a new sentence at the end of shipping container and on the assembly 178.609h. The test mailpiece is filled item c2 as follows:] and closing instructions. A with sharps or other regulated medical 2. * * * The symbol on the outer compensation factor of 1.5 must be used waste to the vendor-identified shipping container must be at least 3 to compute the test load, based on the maximum weight, not to exceed 25 inches high and 4 inches wide. vendor-identified weight. The pass/fail pounds, as indicated on the outer * * * * * criteria are: No buckling of the sidewalls shipping container and on the assembly [Add new item c7 as follows:] sufficient to cause damage to the and closing instructions included with 7. Vendors must retrieve mailpieces contents in the primary container, and each mailpiece. The mailpiece is held at processing facilities due to in no case does the deflection exceed 1 prepared as it would be for mailing. The improper labeling such as no return inch. pass/fail criteria are: No rupture, address or due to improperly completed 3. Vibration test. One mailpiece filled cracking, or splitting of any primary shipping papers. with sharps or other regulated medical receptacle, and no contents may * * * * * waste must withstand the test in 49 CFR penetrate into or through the body or lid [Revise item d as follows:] 178.608. The test mailpiece is filled of any primary receptacle. d. Package Testing. Vendors must with sharps or other regulated medical 7. Puncture-resistant test. Package submit to the manager, Mailing waste to the vendor-identified testing results must show that during all Standards (see 608.8 for address), maximum weight, not to exceed 25 of the previous tests, the contents did package testing results from an pounds, as indicated on the outer not penetrate through the primary independent testing facility for each shipping container and on the assembly container. package for which the vendor is and closing instructions. The test 8. Temperature test. Package testing requesting authorization. In addition, sample is prepared as it would be for results must show that each primary vendors must submit package testing mailing. The pass/fail criterion is: No receptacle maintained its integrity when results from an independent testing rupture, cracking, or splitting of any exposed to temperatures as low as 0°F facility when the design of a container primary receptacle. and as high as 120°F. system changes or every 24 months, 4. Wet drop test. Five mailpieces 9. Absorbency test. Package testing whichever occurs first. The test results filled with sharps or other regulated results must show that the primary must show that if every mailpiece medical waste must withstand the test receptacle(s) contain enough absorbent prepared for mailing were subject to the in 49 CFR 178.609e. Each test mailpiece material to absorb three times the total environmental and test conditions in 49 is filled with sharps or other regulated liquid allowed within the primary CFR and the additional test medical waste to the vendor-identified receptacle in case of leakage. requirements in 10.17.7e, no contents maximum weight, not to exceed 25 Absorbency is determined by pouring would be released into the environment pounds, as indicated on the outer 150 ml of deionized water into the
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primary receptacle(s), then turning the requirements for Division 6.2 infectious consistent with revised international receptacle(s) upside down and substances based on the criteria standards. observing for any evidence of free liquid published by the World Health This interim rule harmonizes our not absorbed on contact. Any evidence Organization. Our revised standards mailing standards with the packaging of free liquid is a failure. adopt many of the changes the category system for infectious 10. Watertight test. Package testing Department of Transportation made to substances developed by the World results must show that no leakage its regulations for the shipment and Health Organization (WHO) in 2005. occurred when 50 ml of deionized water packaging of hazardous materials. We Our revisions are largely consistent with was placed into the secondary also harmonize our standards with the DOT regulations for shipping and containment system and the entire World Health Organization Guidance on packaging hazardous materials and with system turned upside down for 5 Regulations for the Transport of the International Civil Aviation minutes. Infectious Substances and the Organization (ICAO) Technical [Add new item f as follows:] International Civil Aviation Instructions for the Safe Transport of f. Suspension of Authorization. Organization Technical Instructions for 1. The Postal Service may suspend a Dangerous Goods by Air. We also the Safe Transport of Dangerous Goods prohibit Category A infectious vendor’s authorization based on by Air. In addition, we prohibit information that a mailpiece no longer substances in the mail. Category A Category A infectious substances in the includes infectious substances meets the standards for mailing sharps mail. medical waste and regulated medical transported in a form capable of causing DATES: waste containers, or that the mailpiece These changes are effective permanent disability or life-threatening poses an unreasonable safety risk to November 1, 2006. We will accept your or fatal disease in otherwise healthy Postal Service employees or the public. comments on or before December 1, people or animals if exposure occurs. The suspension can be made 2006. Our prohibition of Category A infectious substances is consistent with ICAO’s immediately, making the mailpiece ADDRESSES: Mail or deliver written nonmailable immediately. The vendor comments to the Manager, Mailing recommendation that Category A may contest a decision to suspend Standards, U.S. Postal Service, 475 substances not be carried by mail. authorization by writing to the manager, L’Enfant Plaza, SW., Room 3436, Our interim rule: Mailing Standards (see 608.8 for Washington, DC 20260–3436. You may • Revises the classification system address), within 7 days from the date of inspect and photocopy all written from the current four-tiered risk group the letter of suspension. The appeal comments at USPS Headquarters classification system to a two-tiered should provide evidence demonstrating Library, 475 L’Enfant Plaza, SW., 11th system. Infectious substances are now why the decision should be Floor N, Washington, DC between 9 a.m. classified as ‘‘Category A’’ and reconsidered. Any order suspending and 4 p.m., Monday through Friday. ‘‘Category B,’’ depending on the type of authorization remains in effect during FOR FURTHER INFORMATION CONTACT: Bert substance. an appeal or other challenge. Olsen, 202–268–7276. • Identifies Category A infectious 2. When a vendor is notified that its SUPPLEMENTARY INFORMATION: The Postal substances as nonmailable. authorization to mail sharps or other • regulated medical waste containers has Service is subject to the legal Replaces the shipping name been suspended, the vendor must restrictions in Title 18 of United States ‘‘Diagnostic Specimen’’ with ‘‘Biological immediately: (1) Recall all identified Code 1716, which prohibits the mailing substance, Category B.’’ containers. (2) Notify all customers that of ‘‘all disease, germs, or scabs, and all • Adopts packaging requirements for they cannot mail the identified other natural or artificial articles, Category B infectious substances containers. (3) Suspend sales and compositions, or material which may consistent with those in the DOT distribution of all identified containers. kill or injure another, or injure the mails regulations, the WHO Guidance, and the (4) Collect the identified containers or other property’’ if that material is ICAO Technical Instructions. outwardly or of its own force dangerous from distributors, consumers, and the These revisions to our mailing Postal Service without using the mail to life, health, or property. For legal and safety reasons, the mailing standards for standards will provide a greater level of and in accordance with all Federal and safety for handling and transporting State regulations. hazardous materials in Mailing Standards of the United States Postal mailable infectious substances. These * * * * * Service, Domestic Mail Manual (DMM) changes will also facilitate domestic and closely adhere to Department of international transportation by aligning Neva R. Watson, our mailing standards with the current Attorney, Legislative. Transportation (DOT) regulations in 49 CFR, and include additional limitations international standards for the transport [FR Doc. E6–18063 Filed 10–31–06; 8:45 am] of hazardous materials. BILLING CODE 7710–12–P and prohibitions. On June 6, 2003, we published a final We provide the new standards below. rule in the Federal Register (68 FR We will publish a final rule and may POSTAL SERVICE 33858) to revise the standards for further revise the standards based on the mailing infectious substances. The comments we receive. 39 CFR Part 111 revision harmonized our standards with Although we are exempt from the many of the DOT regulations in effect at notice and comment requirements of the New Mailing Standards for Division 6.2 that time for the transportation of Administrative Procedure Act regarding Infectious Substances infectious substances. On June 2, 2006, proposed rulemaking (see 5 U.S.C. AGENCY: Postal Service. DOT published new regulations (71 FR 553(b), (c)), we invite public comments ACTION: Interim rule with request for 32244) to revise the transportation on the following revisions to Mailing comments. requirements for infectious substances Standards of the United States Postal and adopt new classification criteria, Service, Domestic Mail Manual (DMM), SUMMARY: The Postal Service is revising new exceptions, and new packaging and incorporated by reference in the Code of its mailing standards and packaging hazard communication requirements Federal Regulations. See 39 CFR 111.1.
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List of Subjects in 39 CFR Part 111 conditions, or professional judgment e. Patient specimen means material Administrative practice and concerning the individual that is collected directly from humans procedure, Postal Service. circumstances of the source human or or animals and transported for purposes animal. such as diagnosis and research. Patient I Accordingly, 39 CFR part 111 is 2. Category B: An infectious substance specimens include excreta, secreta, amended as follows: that does not meet the criteria for blood and its components, tissue and inclusion in Category A. A mailpiece tissue swabs, body parts, and specimens PART 111—[AMENDED] known or suspected to contain a in transport media (such as transwabs, I 1. The authority citation for 39 CFR Category B infectious substance must culture media, and blood culture part 111 continues to read as follows: bear the proper shipping name bottles). ‘‘Biological substance, Category B’’ on [Replace item f with new item f as Authority: 5 U.S.C. 552(a); 39 U.S.C. 101, the address side of the mailpiece and 401, 403, 404, 414, 416, 3001–3011, 3201– follows:] 3219, 3403–3406, 3621, 3626, 5001. must be assigned to and marked with f. Regulated medical waste, for USPS identification number UN 3373 or, for purposes, means a soft waste material I 2. Revise the following sections of regulated medical waste and sharps (other than a sharp) derived from the Mailing Standards of the United States medical waste, identification number medical treatment, diagnosis, Postal Service, Domestic Mail Manual UN 3291. immunization, or biomedical research of (DMM), as follows: [Revise item b as follows:] a human or animal. Soft medical waste b. Biological product means a virus, includes items such as used rubber 600 Basic Standards for All Mailing therapeutic serum, toxin, antitoxin, gloves, swabs, gauze, tongue depressors, Services vaccine, blood, blood component or and other similar material. Mark these derivative, allergenic product, or 601 Mailability mailpieces with identification number analogous product or arsphenamine or UN 3291. * * * * * derivative of arsphenamine (or any [Delete Exhibit 10.17.2f, Risk Group other trivalent arsenic compound) 10.0 Hazardous Materials Criteria. Revise item g as follows:] intended to prevent, treat, or cure a * * * * * g. Sharps medical waste, for USPS disease or condition of humans or purposes, means a medical waste object 10.17 Infectious Substances (Hazard animals. A biological product includes that is capable of cutting or penetrating Class 6, Division 6.2) a material subject to regulation under 42 skin or packaging material and that is U.S.C. 262 or 21 U.S.C. 151–159. Unless 10.17.1 General contaminated with a pathogen or may otherwise excepted, mark these become contaminated with a pathogen [Revise the first and last sentences in mailpieces with identification number derived from the medical treatment, 10.17.1 as follows:] Division 6.2 UN 3373 when they contain a biological diagnosis, immunization, or biomedical materials include infectious substances, product known or reasonably expected research of a human or animal. Sharps biological products, regulated medical to contain a pathogen that meets the include used medical waste such as waste, sharps medical waste, used definition of a Category B infectious needles, syringes, scalpels, broken glass, health care products, and forensic substance. materials. * * * Unless otherwise [Revise item c as follows:] culture slides, culture dishes, broken noted, all mailable Division 6.2 c. Cultures are infectious substances capillary tubes, broken rigid plastic, and materials must meet the mail that result from a process by which exposed ends of dental wires. Mark preparation requirements for air pathogens are intentionally propagated. these mailpieces with identification transportation. This definition does not include a number UN 3291. human or animal patient specimen as [Revise the last part of item h as 10.17.2 Definitions defined in 10.17.2e. follows:] The terms used in the standards for [Replace item d with new item d as h. * * * UN 2814, UN 2900, or UN Division 6.2 materials are defined as follows:] 3373, as appropriate. A toxin known or follows: d. Exempt human or animal specimen suspected to contain a Category A [Revise item a as follows:] means a human or animal sample infectious substance is not mailable. A a. Infectious substance means a (including, but not limited to, secreta, toxin known or suspected to contain a material known or reasonably expected excreta, blood and its components, Category B infectious substance must be to contain a pathogen. A pathogen is a tissue and tissue fluids, and body parts) marked UN 3373 and packaged under microorganism that can cause disease in transported for routine testing not 10.17.5. Toxins from plant, animal, or humans or animals. Examples of related to the diagnosis of an infectious bacterial sources that do not contain an pathogens include bacteria, viruses, disease. Typically, exempt human infectious substance, and are not fungi, and other infectious agents. An specimens are specimens for which contained in an infectious substance, infectious substance must be assigned to there is a low probability that the may be considered for classification as one of the following two categories: sample is infectious, such as specimens Division 6.1 toxic substances under 1. Category A: An infectious for drug or alcohol testing; cholesterol 10.16. substance transported in a form capable testing; blood glucose level testing; [Delete the last sentence in item i. of causing permanent disability or life- prostate-specific antigens (PSA) testing; Revise the last part of the new last threatening or fatal disease in otherwise testing to monitor heart, kidney, or liver sentence as follows:] healthy humans or animals when function; pregnancy testing; and testing i. * * * to remove or mitigate the exposure occurs. Category A infectious for diagnosis of noninfectious diseases infectious hazard prior to transport. substances are not mailable. A Category such as cancer biopsies. Exempt human 10.17.3 Nonregulated Materials A infectious substance is assigned the or animal specimens are not subject to identification number UN 2814 or UN regulations as hazardous materials but [Revise 10.17.3 as follows:] 2900, based on the known medical must be packaged according to 10.17.10. The following materials are not history or symptoms of the source [Replace item e with new item e as subject to regulation as Division 6.2 patient or animal, endemic local follows:] hazardous materials and are mailable
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when the packaging requirements in tissues or organs intended for use in material, or dried specimens for fecal 10.17.9 are met: transplant operations; and human cell, occult blood detection. (These materials a. A biological product, including an tissues, and cellular and tissue-based are not classified as exempt human or experimental or investigational product products regulated under the Public animal specimens.) or component of a product, subject to Health Service Act (42 U.S.C. 264–272) e. Forensic material containing a Federal approval, permit, review, or or the Food, Drug, and Cosmetic Act (21 biological material, such as tissue, body licensing requirements, such as those U.S.C. 332 et seq.). required by the Food and Drug c. Blood, blood plasma, and blood fluid, excreta, or secreta, not expected to Administration of the U.S. Department components collected for the purpose of contain a Category A or Category B of Health and Human Services or the blood transfusion or the preparation of infectious substance and transported on U.S. Department of Agriculture. A blood products and sent for testing as behalf of a U.S. Government agency or biological product known or suspected part of the collection process, except a state, local, or Indian tribal to contain a Category B infectious where the person collecting the blood government agency. A forensic material substance must be marked UN 3373 and has reason to believe it contains a known or suspected to contain a packaged under 10.17.5. A biological Category B infectious substance, in Category B infectious substance must be product known or suspected to contain which case the test sample must be shipped as a Category B infectious a Category A infectious substance is not shipped as a Category B infectious substance. A forensic material known or mailable. substance. Materials known or suspected to contain a Category A b. Blood collected for the purpose of suspected to contain a Category A infectious substance is not mailable. blood transfusion or the preparation of infectious substance are not mailable. blood products; blood products; plasma; d. Dried blood spots, collected by * * * * * plasma derivatives; blood components; applying a drop of blood to absorbent [Revise Exhibit 10.17.4 as follows:]
EXHIBIT 10.17.4 PACKAGING STANDARDS FOR DIVISION 6.2 INFECTIOUS SUBSTANCES
Packaging standards Material being mailed Category Category Nonregulated A B
Blood for Transfusion ...... 10.17.9 nm 10.17.5 Biological Product ...... 10.17.9 nm 10.17.5 Culture or Stock ...... 10.17.9 nm 10.17.5 Patient Specimen ...... na nm 10.17.5 Exempt Human or Animal Specimen ...... 10.17.10 na na Forensic Material ...... 10.17.9 nm 10.17.5 Regulated Medical Waste ...... 10.17.6 nm 10.17.6 Sharps Waste ...... 10.17.6 nm 10.17.6 Toxin * ...... 10.16.4 nm 10.17.5 Treated Medical Waste ...... 10.17.9 n/a n/a Used Health Care Product ...... 10.17.7 nm 10.17.7 nm = Not mailable. n/a = Not applicable. * Toxin means a Division 6.1 material from a plant, animal, or bacterial source. A toxin containing an infectious substance or a toxin contained in an infectious substance must be classified as Division 6.2; described as an infectious substance; and assigned to UN 2814, UN 2900, or UN 3373, as appropriate. A Division 6.1 toxin that can qualify as an ORM–D material is permitted when packaged under 10.16.3 or 10.16.4.
[Revise 10.7.5 as follows:] receptacle must not contain more than Regulated medical waste and sharps 1 liter (34 ounces) of a liquid specimen medical waste as defined in 10.17.2f 10.17.5 Packaging Category B or 4 kg (8.8 pounds) of a solid specimen. and 10.17.2g must be marked UN 3291. Infectious Substances Two or more primary receptacles whose See 10.17.6. A material that is classified as a combined volume does not exceed 4 d. Orientation arrows are not required Category B infectious substance and that liters (1 gallon) for liquids or 4 kg (8.8 on these mailpieces but may be used. meets the definition in 10.17.2a2 must pounds) for solids may be enclosed in e. The outer packaging must show the be triple-packaged, meeting the a single secondary container. In name and telephone number of a person packaging requirements in 49 CFR addition: who is knowledgeable about the 173.199, and sent as First-Class Mail, a. The secondary container must be material shipped and has Priority Mail, or Express Mail. Each marked with the international biohazard comprehensive emergency response and primary receptacle containing a liquid symbol shown in Exhibit 10.17.6c2. incident mitigation information, or of must be leakproof and surrounded by b. The primary receptacle or someone who has immediate access to absorbent material sufficient to protect secondary packaging must be capable of the person with such knowledge and the primary receptacle and absorb the withstanding, without leakage, an information. total amount of liquid should the internal pressure producing a pressure primary receptacle leak or break. Each differential of not less than 95 kPa (0.95 [Delete 10.17.6 and renumber 10.17.7 primary receptacle containing a solid bar, 14 psi) in the range of ¥40°C to through 10.17.10 as 10.17.6 through must be siftproof. Secondary containers 55°C (¥40°F to 130°F). 10.17.9.] for liquids must be leakproof. Secondary c. All mailpieces sent under 10.17.5 10.17.6 Sharps Waste and Other containers for solids must be siftproof. must be marked on the address side Mailable Regulated Medical Waste The primary and secondary packaging with the shipping name ‘‘Biological must be enclosed in a rigid outer substance, Category B’’ and ‘‘UN 3373’’ [Revise the introductory text as shipping container. A single primary as outlined in 49 CFR 173.199 (a)(5). follows:]
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Regulated medical waste and sharps Class Mail, Priority Mail, or Express secondary container with a leakproof medical waste known or suspected to Mail when triple-packaged in a primary barrier that can prevent failure of the contain a Category A infectious receptacle, secondary container, and a secondary container if the primary substance is not mailable. Regulated rigid outer shipping container as receptacle(s) should leak during medical waste and sharps medical waste follows: transport. The secondary container must as defined in 10.17.2f and 10.17.2g, and * * * * * be securely sealed, and it may serve as containing materials classified as [Revise the heading and text in the outer shipping container if it has Category B infectious substances, must renumbered 10.17.9 as follows:] sufficient strength to withstand ordinary be marked UN 3291 and is permitted for postal processing. The secondary 10.17.9 Packaging Nonregulated mailing only using merchandise return container must be marked with the Materials service (see 507.10.0) with First-Class international biohazard symbol shown Mail or Priority Mail service, subject to Nonregulated materials as defined in in Exhibit 10.17.6c2, except when the the following requirements: 10.17.3 are not subject to regulation as secondary container also serves as the * * * * * hazardous materials but must be outer shipping container. In that case, [Revise item b as follows:] properly packaged when presented for the biohazard symbol must appear on b. Packaging. Regulated medical mailing. Regulated medical waste, the inner packaging or on the primary waste and sharps medical waste that sharps medical waste, and used health container. A shipping paper and a also meets the definition of a Category care products must be packaged and content marking on the outer shipping A infectious substance is not mailable. mailed under 10.17.6 and 10.17.7. container are not required. A medical waste material treated by Exempt human and animal specimens 2. Exceeding 50 ml. A liquid patient steam sterilization, chemical must be packaged under 10.17.10. specimen, forensic material, or disinfections, or other appropriate Nonregulated materials are mailable as biological product that exceeds 50 ml method so that it no longer contains a First-Class Mail, Priority Mail, Express must be packaged in a securely sealed Category A or Category B infectious Mail, or Package Services mail. Such primary receptacle. A single primary substance must be packaged under materials must be held within a securely receptacle must not contain more than 10.17.9. The packaging for regulated sealed primary receptacle. The primary 500 ml of specimen. Two or more primary receptacles whose combined medical waste and sharps medical waste receptacle must be surrounded by volume does not exceed 500 ml may be containing or suspected of containing a sufficient absorbent material (for liquids) and cushioning material to enclosed in a single secondary Category B infectious substance is protect the primary receptacle from container. Sufficient absorbent material subject to these standards: breakage. The absorbent material must and cushioning material to withstand * * * * * be capable of taking up the entire liquid shock and pressure changes must 10.17.7 Packaging Used Health Care contents of the primary receptacle in surround the primary receptacle(s), or Products case of leakage. Either the primary be otherwise configured to take up the receptacle or the inner packaging must entire liquid contents in case of leakage. [Revise the introductory text as be marked with the international The primary receptacle(s) and the follows:] biohazard symbol shown in Exhibit absorbent cushioning must be enclosed A used health care product known or 10.17.6c2. The primary receptacle and in a secondary container with a reasonably suspected to contain a the absorbent and cushioning material leakproof barrier that can prevent failure Category A material is not mailable. A must be snugly enclosed in a rigid outer of the secondary container if the used health care product not suspected shipping container that is securely primary receptacle(s) should leak during to contain an infectious material, or that sealed. A shipping paper and a content transport. The secondary container is known or suspected to contain a marking on the outer shipping container cannot serve as the outer shipping Category B infectious substance, and is are not required. Nonregulated material container. The secondary container being returned to the manufacturer or specimens and biological products are must be marked with the international manufacturer’s designee is mailable as subject to the following packaging biohazard symbol shown in Exhibit First-Class Mail, Priority Mail, or standards: 10.17.6c2. The secondary container Express Mail subject to the following a. Liquid Patient Specimens and must be securely and snugly enclosed in packaging requirements: Biological Products. Mailers must a fiberboard box or container of * * * * * package a liquid nonregulated patient equivalent strength that serves as the [Revise the heading and introductory specimen, a forensic specimen, or a outer shipping container. A shipping text in renumbered 10.17.8 as follows:] biological product (such as polio paper and a content marking on the vaccine) as follows: 10.17.8 Packaging Forensic Material outer shipping container are not 1. Not exceeding 50 ml. A patient required. Forensic material containing a specimen or biological product b. Solid (or Dry) Specimen. A solid or biological material, such as tissue, body consisting of 50 ml or less per mailpiece dry specimen, such as a saliva swab, fluid, excreta, or secreta, and sent on must be packaged in a securely sealed blood spot, fecal smear, culture or stock, behalf of a U.S. Government agency or primary receptacle. Two or more or forensic material, must be completely a State, local, or Indian tribal primary receptacles whose combined dried before packaging in a mailing government agency must be packaged volume does not exceed 50 ml may be container or envelope. Cushioning under 10.17.9 when it is not known or enclosed within a single mailpiece. material to withstand shock and suspected to contain a Category A or Sufficient absorbent material and pressure changes is required only if the Category B infectious substance. cushioning material to withstand shock dry specimen is placed in a breakable Forensic material known or suspected to and pressure changes must surround the primary receptacle. When required, the contain a Category A infectious primary receptacle(s), or be otherwise cushioning material must surround the substance is not mailable. Forensic configured to take up the entire liquid primary receptacle. The primary material known or suspected to contain contents in case of leakage. The primary receptacle (and cushioning material, if a Category B infectious substance as receptacle(s) and the absorbent required) must be enclosed in a identified in 10.17.5 is mailable as First- cushioning must be enclosed in a secondary container with a siftproof
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barrier that can prevent failure of the Mail, Express Mail, or Package Services (EPA), Region 8, Mailcode 8P–AR, 999 secondary container if the primary mail. 18th Street, Suite 200, Denver, Colorado receptacle breaks during shipment. The * * * * * 80202–2466. Such deliveries are only secondary container must be securely accepted Monday through Friday, 8 a.m. sealed, and it may serve as the outer Neva R. Watson, to 4:55 p.m., excluding federal holidays. shipping container if it has sufficient Attorney, Legislative. Special arrangements should be made strength to withstand ordinary postal [FR Doc. E6–18062 Filed 10–31–06; 8:45 am] for deliveries of boxed information. processing. The secondary container BILLING CODE 7710–12–P Instructions: Direct your comments to Docket ID No. EPA–R08–OAR–2006– must be marked with the international 0564. EPA’s policy is that all comments biohazard symbol shown in Exhibit received will be included in the public 10.17.6c2, except when the secondary ENVIRONMENTAL PROTECTION AGENCY docket without change and may be container also serves as the outer made available online at shipping container. In that case, the 40 CFR Part 52 www.regulations.gov including any biohazard symbol must appear either on personal information provided, unless the inner packaging or on the primary [EPA–R08–OAR–2006–0564, FRL–8236–8] the comment includes information container receptacle. A shipping paper claimed to be Confidential Business Approval and Promulgation of Air and a content marking on the outer Information (CBI) or other information Quality Implementation Plans; Utah; shipping container are not required. whose disclosure is restricted by statute. Revisions to the Utah Administrative Do not submit information that you [Insert new 10.17.10 as follows:] Code; Direct Final Rule consider to be CBI or otherwise 10.17.10 Packaging Exempt Human or AGENCY: Environmental Protection protected through www.regulations.gov Animal Specimens Agency (EPA). or e-mail. The www.regulations.gov Web ACTION: Direct final rule. site is an ‘‘anonymous access’’ system, Exempt human or animal specimens which means EPA will not know your as defined in 10.17.2d are not subject to SUMMARY: EPA is taking direct final identity or contact information unless regulation as hazardous materials but action to approve State Implementation you provide it in the body of your when presented for mailing must be Plan (SIP) revisions submitted by the comment. If you send an e-mail triple-packaged in leakproof (for liquids) State of Utah on February 7, 2006. These comment directly to EPA, without going or siftproof (for solids) primary changes to the Utah Administrative through www.regulations.gov, your e- receptacles. Sufficient cushioning and Code revise some minor technical mail address will be automatically absorbent materials must surround each requirements of Utah’s continuous captured and included as part of the primary receptacle containing liquid. emission monitoring rules and correct comment that is placed in the public Secondary containers for liquids must several grammatical errors. The docket and made available on the be leakproof. Secondary containers for intended effect of this action is to make Internet. If you submit an electronic solids must be siftproof. The primary federally enforceable those provisions comment, EPA recommends that you and secondary packaging must be that EPA is approving. This action is include your name and other contact enclosed in a rigid outer shipping being taken under section 110 of the information in the body of your container. A single primary receptacle Clean Air Act. comment and with any disk or CD–ROM you submit. If EPA cannot read your must not contain more than 500 ml of DATES: This rule is effective on January comment due to technical difficulties a liquid specimen or 500 grams of a 2, 2007 without further notice, unless and cannot contact you for clarification, solid specimen. Two or more primary EPA receives adverse comment by EPA may not be able to consider your December 1, 2006. If adverse comment receptacles whose combined volume comment. Electronic files should avoid is received, EPA will publish a timely does not exceed 500 ml (for liquids) or the use of special characters, any form withdrawal of the direct final rule in the 500 grams (for solids) may be enclosed of encryption, and be free of any defects Federal Register informing the public in a single secondary container. The or viruses. For additional information that the rule will not take effect. secondary container cannot serve as the about EPA’s public docket visit the EPA outer shipping container. The secondary ADDRESSES: Submit your comments, Docket Center homepage at http:// container must be marked with the identified by Docket ID No. EPA–R08– www.epa.gov/epahome/dockets.htm. international biohazard symbol shown OAR–2006–0564, by one of the For additional instructions on in Exhibit 10.17.6c2. The secondary following methods: submitting comments, go to Section I: container must be securely and snugly • www.regulations.gov. Follow the General Information portion in the enclosed in a fiberboard box or on-line instructions for submitting SUPPLEMENTARY INFORMATION section of container of equivalent strength that comments. this document. • serves as the outer shipping container. E-mail: [email protected] and Docket: All documents in the docket [email protected]. are listed in the www.regulations.gov A shipping paper is not required. The • outer shipping container must be Fax: (303) 312–6064 (please alert index. Although listed in the index, the individual listed in the FOR FURTHER marked on the address side with the some information is not publicly INFORMATION CONTACT if you are faxing words ‘‘Exempt human specimen’’ or available, e.g., CBI or other information comments). whose disclosure is restricted by statute. ‘‘Exempt animal specimen,’’ as • Mail: Richard R. Long, Director, Air Certain other material, such as appropriate. In addition, at least one and Radiation Program, Environmental copyrighted material, will be publicly surface of the outer packaging must Protection Agency (EPA), Region 8, available only in hard copy. Publicly have a minimum dimension of 3.9 Mailcode 8P–AR, 999 18th Street, Suite available docket materials are available inches x 3.9 inches (100 mm x 100 mm). 200, Denver, Colorado 80202–2466. either electronically in Exempt human and animal specimens • Hand Delivery: Richard R. Long, www.regulations.gov or in hard copy at are mailable as First-Class Mail, Priority Director, Air and Radiation Program, the Air and Radiation Program, Environmental Protection Agency Environmental Protection Agency
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(EPA), Region 8, 999 18th Street, Suite a. Identify the rulemaking by docket Sources) monitoring standards. EPA is 200, Denver, Colorado 80202–2466. EPA number and other identifying approving the revision to R307–170– requests that if at all possible, you information (subject heading, Federal 7(1). contact the individual listed in the FOR Register date and page number). 2. Typographical and Grammatical FURTHER INFORMATION CONTACT b. Follow directions—The agency may section to Corrections to R307–170–4. Definitions view the hard copy of the docket. You ask you to respond to specific questions may view the hard copy of the docket or organize comments by referencing a a. The state is making typographical Monday through Friday, 8 a.m. to 4 Code of Federal Regulations (CFR) part and grammatical corrections to several p.m., excluding federal holidays. or section number. definitions. EPA is approving the paragraphs which are the definitions of FOR FURTHER INFORMATION CONTACT: c. Explain why you agree or disagree; the following terms: Continuous Jeffrey Kimes, Air and Radiation suggest alternatives and substitute Emission Monitoring System; Program, Mailcode 8P–AR, language for your requested changes. d. Describe any assumptions and Description Report; Excess Emission Environmental Protection Agency provide any technical information and/ Report; Monitor; State Electronic Data (EPA), Region 8, 999 18th Street, Suite or data that you used. Report; and Summary Report. 200, Denver, Colorado 80202–2466, e. If you estimate potential costs or (303) 312–6445, [email protected]. 3. Typographical and Grammatical burdens, explain how you arrived at Corrections to Assorted Sections SUPPLEMENTARY INFORMATION: your estimate in sufficient detail to Table of Contents allow for it to be reproduced. a. The state is making numerous f. Provide specific examples to typographical and grammatical I. General Information corrections to several sections. EPA is II. Background illustrate your concerns, and suggest III. EPA’s Review of the State of Utah’s alternatives. approving these inconsequential February 7, 2006 Submittal g. Explain your views as clearly as corrections in the following sections: IV. Final Action possible, avoiding the use of profanity R307–170–5 (7); R307–170–7 (6); R307– V. Statutory and Executive Order Reviews or personal threats. 170–7(6)(a) and (b); and in R307–170–9 h. Make sure to submit your sections (5)(a) and (b), (6)(b), (7)(b), and Definitions comments by the comment period (9)(a). For the purpose of this document, we deadline identified. IV. Final Action are giving meaning to certain words or II. Background initials as follows: EPA is approving the following (i) The words or initials Act or CAA On February 7, 2006, the Governor of changes to the Utah Administrative mean or refer to the Clean Air Act, Utah submitted a SIP revision that Code that were submitted by the unless the context indicates otherwise. contains amendments to Rule R307–170 Governor on February 7, 2006 and (ii) The words EPA, we, us or our of the Utah Administrative Code. The effective on January 5, 2006: R307–170– mean or refer to the United States amendments update a key provision of 7(1); R307–170–4; R307–170–5 (7); Environmental Protection Agency. the State’s continuous emissions R307–170–7 (6); R307–170–7(6)(a) and (iii) The initials SIP mean or refer to monitoring rule to be consistent with 40 (b); and in R307–170–9 sections (5)(a) State Implementation Plan. CFR part 75, Appendix A, Section 6.2 and (b), (6)(b), (7)(b), and (9)(a). (iv) The words State or Utah mean the on which part of the State’s rule is Section 110(l) of the Clean Air Act State of Utah, unless the context based. In addition, the revision corrects states that a SIP revision cannot be indicates otherwise. several inconsequential grammatical approved if the revision would interfere errors. The Utah Air Quality Board with any applicable requirement I. General Information adopted these amendments on January concerning attainment and reasonable A. What Should I Consider as I Prepare 4, 2006 and they became effective on further progress towards attainment of My Comments for EPA? January 5, 2006. any National Ambient Air Quality Standards (NAAQS) or any other 1. Submitting CBI. Do not submit this III. EPA’s Review of the State of Utah’s applicable requirements of the Act. The information to EPA through February 7, 2006 Submittal Utah SIP revisions that are the subject www.regulations.gov or e-mail. Clearly A. Revisions to the Utah Administrative of this document do not interfere with mark the part or all of the information Code Adopted January 4, 2006 and attainment or maintenance of any that you claim to be CBI. For CBI Effective January 5, 2006 NAAQS or any other applicable information in a disk or CD ROM that requirement of the Act. The Governor’s you mail to EPA, mark the outside of the 1. Changes to R307–170–7 (1). February 7, 2006 submittal merely disk or CD ROM as CBI and then Performance Specification Audits makes changes to the operational audits identify electronically within the disk or a. The state is adding language of Acid Rain monitors and CD ROM the specific information that is consistent with 40 CFR part 75, inconsequential typographical and claimed as CBI. In addition to one Appendix A, Section 6.2, Acid Rain grammatical changes. Therefore, section complete version of the comment that program provisions. This will exempt 110(l) requirements are satisfied. includes information claimed as CBI, a sources with monitors subject to the EPA is publishing this rule without copy of the comment that does not Acid Rain rules from the requirement prior proposal because the Agency contain the information claimed as CBI for quarterly monitor audits. Under 40 views this as a noncontroversial must be submitted for inclusion in the CFR part 75, Appendix A, Section 6.2, amendment and anticipates no adverse public docket. Information so marked acid rain related monitors require only comments; we are approving one minor will not be disclosed except in annual audits. Without the addition of change and typographical and accordance with procedures set forth in this exemption the acid rain monitors grammatical corrections to Utah’s air 40 CFR part 2. would be unnecessarily subject to the quality rules. However, in the 2. Tips for Preparing Your Comments. same quarterly audits required under 40 ‘‘Proposed Rules’’ section of today’s When submitting comments, remember CFR part 60, Appendix B (Standards of Federal Register publication, EPA is to: Performance for New Stationary publishing a separate document that
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will serve as the proposal to approve the on the relationship between the national extend the time within which a petition SIP revision if adverse comments are government and the States, or on the for judicial review may be filed, and filed. This rule will be effective January distribution of power and shall not postpone the effectiveness of 1, 2007 without further notice unless responsibilities among the various such rule or action. This action may not the Agency receives adverse comments levels of government, as specified in be challenged later in proceedings to by December 1, 2006. If the EPA Executive Order 13132 (64 FR 43255, enforce its requirements. (See section receives adverse comments, EPA will August 10, 1999). This action merely 307(b)(2).) publish a timely withdrawal in the approves a state rule implementing a Federal Register informing the public Federal standard, and does not alter the List of Subjects in 40 CFR Part 52 that the rule will not take effect. EPA relationship or the distribution of power will address all public comments in a and responsibilities established in the Environmental protection, Air subsequent final rule based on the Clean Air Act. This rule also is not pollution control, Incorporation by proposed rule. The EPA will not subject to Executive Order 13045 reference, Intergovernmental relations, institute a second comment period on ‘‘Protection of Children from Nitrogen dioxide, Ozone, Reporting and this action. Any parties interested in Environmental Health Risks and Safety recordkeeping requirements, Sulfur commenting must do so at this time. Risks’’ (62 FR 19885, April 23, 1997), oxides, Volatile organic compounds. Please note that if EPA receives adverse because it is not economically Dated: September 27, 2006. comment on an amendment, paragraph, significant. Carol Rushin, or section of this rule and if that In reviewing SIP submissions, EPA’s provision may be severed from the role is to approve state choices, Acting Regional Administrator, Region 8. remainder of the rule, EPA may adopt provided that they meet the criteria of I 40 CFR part 52 is amended to read as as final those provisions of the rule that the Clean Air Act. In this context, in the follows: are not the subject of an adverse absence of a prior existing requirement comment. for the State to use voluntary consensus PART 52—[AMENDED] standards (VCS), EPA has no authority V. Statutory and Executive Order to disapprove a SIP submission for Reviews I 1. The authority citation for Part 52 failure to use VCS. It would thus be continues to read as follows: Under Executive Order 12866 (58 FR inconsistent with applicable law for 51735, October 4, 1993), this action is EPA, when it reviews a SIP submission, Authority: 42 U.S.C. 7401 et seq. not a ‘‘significant regulatory action’’ and to use VCS in place of a SIP submission therefore is not subject to review by the that otherwise satisfies the provisions of Subpart TT—Utah Office of Management and Budget. For the Clean Air Act. Thus, the this reason, this action is also not requirements of section 12(d) of the I 2. Section 52.2320 is amended by subject to Executive Order 13211, National Technology Transfer and adding paragraph (c)(64) to read as ‘‘Actions Concerning Regulations That Advancement Act of 1995 (15 U.S.C. follows: Significantly Affect Energy Supply, 272 note) do not apply. This rule does § 52.2320 Identification of plan. Distribution, or Use’’ (66 FR 28355, May not impose an information collection 22, 2001). This action merely approves burden under the provisions of the * * * * * state law as meeting Federal Paperwork Reduction Act of 1995 (44 (c) * * * requirements and imposes no additional U.S.C. 3501 et seq.). requirements beyond those imposed by The Congressional Review Act, 5 (64) Revisions to State state law. Accordingly, the U.S.C. 801 et seq., as added by the Small Implementation Plan were submitted by Administrator certifies that this rule Business Regulatory Enforcement the State of Utah on February 7, 2006. will not have a significant economic Fairness Act of 1996, generally provides The revisions are to the Utah impact on a substantial number of small that before a rule may take effect, the Administrative Code to revise the entities under the Regulatory Flexibility agency promulgating the rule must continuous emission monitoring Act (5 U.S.C. 601 et seq.). Because this submit a rule report, which includes a requirements for performance audits of rule approves pre-existing requirements copy of the rule, to each House of the acid rain monitors and to correct several under state law and does not impose Congress and to the Comptroller General typographical and grammatical errors. any additional enforceable duty beyond of the United States. EPA will submit a (i) Incorporation by reference. that required by state law, it does not report containing this rule and other contain any unfunded mandate or required information to the U.S. Senate, (A) Utah Administrative Code significantly or uniquely affect small the U.S. House of Representatives, and sections: R307–170–7(1); R307–170–4; governments, as described in the the Comptroller General of the United R307–170–5 (7); R307–170–7 (6); R307– Unfunded Mandates Reform Act of 1995 States prior to publication of the rule in 170–7(6)(a) and (b); and in R307–170–9 (Pub. L. 104–4). the Federal Register. A major rule sections (5)(a) and (b), (6)(b), (7)(b), and This rule also does not have tribal cannot take effect until 60 days after it (9)(a); effective January 5, 2006. implications because it will not have a is published in the Federal Register. [FR Doc. E6–18377 Filed 10–31–06; 8:45 am] substantial direct effect on one or more This action is not a ‘‘major rule’’ as BILLING CODE 6560–50–P Indian tribes, on the relationship defined by 5 U.S.C. 804(2). between the Federal Government and Under section 307(b)(1) of the Clean Indian tribes, or on the distribution of Air Act, petitions for judicial review of power and responsibilities between the this action must be filed in the United Federal Government and Indian tribes, States Court of Appeals for the as specified by Executive Order 13175 appropriate circuit by January 2, 2007. (65 FR 67249, November 9, 2000). This Filing a petition for reconsideration by action also does not have Federalism the Administrator of this final rule does implications because it does not have not affect the finality of this rule for the substantial direct effects on the States, purposes of judicial review nor does it
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ENVIRONMENTAL PROTECTION excluding legal holidays. The Docket for hearings appear in 40 CFR part 178. AGENCY telephone number is (703) 305–5805. You must file your objection or request FOR FURTHER INFORMATION CONTACT: a hearing on this regulation in 40 CFR Part 174 Mike Mendelsohn, Biopesticides and accordance with the instructions provided in 40 CFR part 178. To ensure [EPA–HQ–OPP–2006–0784; FRL–8096–4] Pollution Prevention Division (7511P), Environmental Protection Agency, 1200 proper receipt by EPA, you must Bacillus Thuringiensis Modified Cry3A Pennsylvania Ave., NW., Washington, identify docket ID number EPA–HQ– Protein and the Genetic Material DC 20460–0001; telephone number: OPP–2006–0784 in the subject line on Necessary for Its Production in Corn; (703) 308–8715; e-mail address: the first page of your submission. All Exemption from the Requirement of a [email protected]. requests must be in writing, and must be mailed or delivered to the Hearing Clerk Tolerance SUPPLEMENTARY INFORMATION: on or before January 2, 2007. AGENCY: Environmental Protection I. General Information In addition to filing an objection or Agency (EPA). hearing request with the Hearing Clerk A. Does this Action Apply to Me? ACTION: Final rule. as described in 40 CFR part 178, please You may be potentially affected by submit a copy of the filing that does not SUMMARY: This regulation establishes a this action if you are an agricultural contain any CBI for inclusion in the permanent exemption from the producer, food manufacturer, or public docket that is described in requirement of a tolerance for residues pesticide manufacturer. Potentially ADDRESSES. Information not marked of the Bacillus thuringiensis modified affected entities may include, but are confidential pursuant to 40 CFR part 2 Cry3A protein (mCry3A) and the genetic not limited to: may be disclosed publicly by EPA material necessary for its production in • Crop production (NAICS code 111). without prior notice. Submit your corn on field corn, sweet corn, and • Animal production (NAICS code copies, identified by docket ID number popcorn when applied/used as a plant- 112). EPA–HQ–OPP–2006–0784, by one of incorporated protectant. Syngenta • Food manufacturing (NAICS code the following methods. Seeds, Inc. submitted a petition to EPA 311). • Federal eRulemaking Portal: http:// under the Federal Food, Drug, and • Pesticide manufacturing (NAICS www.regulations.gov. Follow the on-line Cosmetic Act (FFDCA), as amended by code 32532). instructions for submitting comments. • the Food Quality Protection Act of 1996 This listing is not intended to be Mail: Office of Pesticide Programs (FQPA), requesting an exemption from exhaustive, but rather provides a guide (OPP) Regulatory Public Docket (7502P), the requirement of a tolerance. This for readers regarding entities likely to be Environmental Protection Agency, 1200 regulation eliminates the need to affected by this action. Other types of Pennsylvania Ave., NW., Washington, entities not listed in this unit could also DC 20460–0001. establish a maximum permissible level • for residues of Bacillus thuringiensis be affected. The North American Delivery: OPP Regulatory Public modified Cry3A protein (mCry3A) and Industrial Classification System Docket (7502P), Environmental the genetic material necessary for its (NAICS) codes have been provided to Protection Agency, Rm. S-4400, One production in corn. assist you and others in determining Potomac Yard (South Building), 2777 S. whether this action might apply to Crystal Drive, Arlington, VA. Deliveries DATES: This regulation is effective certain entities. If you have any are only accepted during the Docket’s November 1, 2006. Objections and questions regarding the applicability of normal hours of operation (8:30 a.m. to requests for hearings must be received this action to a particular entity, consult 4 p.m., Monday through Friday, on or before January 2, 2007, and must the person listed under FOR FURTHER excluding legal holidays). Special be filed in accordance with the INFORMATION CONTACT. arrangements should be made for instructions provided in 40 CFR part deliveries of boxed information. The 178 (see also Unit I.C. of the B. How Can I Access Electronic Copies Docket telephone number is (703) 305– SUPPLEMENTARY INFORMATION). of this Document? 5805. ADDRESSES: EPA has established a In addition to accessing an electronic II. Background and Statutory Findings docket for this action under docket copy of this Federal Register document identification (ID) number EPA–HQ– through the electronic docket at http:// In the Federal Register of October 27, OPP–2006–0784. All documents in the www.regulations.gov, you may access 2004 (69 FR 62688) (FRL–7370–1), EPA docket are listed in the index for the this ‘‘Federal Register’’ document issued a notice pursuant to section docket. Although listed in the index, electronically through the EPA Internet 408(d)(3) of the FFDCA, 21 U.S.C. some information is not publicly under the ‘‘Federal Register’’ listings at 346a(d)(3), announcing the filing of a available, e.g., Confidential Business http://www.epa.gov/fedrgstr. You may pesticide tolerance petition (PP 4F6838) Information (CBI) or other information also access a frequently updated by Syngenta Seeds, Inc., P.O. Box whose disclosure is restricted by statute. electronic version of 40 CFR part 180 12257, 3054 Cornwallis Road, Research Certain other material, such as through the Government Printing Triangle Park, NC 27709–2257. The copyrighted material, is not placed on Office’s pilot e-CFR site at http:// petition requested that 40 CFR part 174 the Internet and will be publicly www.gpoaccess.gov/ecfr. be amended by establishing a available only in hard copy form. permanent exemption from the Publicly available docket materials are C. Can I File an Objection or Hearing requirement of a tolerance for residues available in the electronic docket at Request? of modified Cry3A protein (mCry3A) http://www.regulations.gov, or, if only Under section 408(g) of the FFDCA, as and the genetic material necessary for available in hard copy, at the OPP amended by the FQPA, any person may its production in corn. This notice Regulatory Public Docket in Rm. S-4400, file an objection to any aspect of this included a summary of the petition One Potomac Yard (South Building), regulation and may also request a prepared by the petitioner Syngenta 2777 S. Crystal Drive, Arlington, VA. hearing on those objections. The EPA Seeds, Inc. One comment was received The Docket Facility is open from 8:30 procedural regulations which govern the in response to the notice of filing from a.m. to 4 p.m., Monday through Friday, submission of objections and requests the National Corn Growers Association.
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They supported the petition and legal limit for a pesticide chemical plant-incorporated protectant was requested EPA to quickly issue the final residue in or on a food) only if EPA derived (See 40 CFR 158.740(b)(2)(i)). rule. determines that the exemption is ‘‘safe.’’ For microbial products, further toxicity On March 14-15, 2006, EPA held a Section 408(c)(2)(A)(ii) of the FFDCA testing and residue data are triggered by FIFRA Scientific Advisory Panel (SAP) defines ‘‘safe’’ to mean that ‘‘there is a significant acute effects in studies such meeting, at http://www.epa.gov/scipoly/ reasonable certainty that no harm will as the mouse oral toxicity study, to sap/meetings/2006/index.htm#march to result from aggregate exposure to the verify the observed effects and clarify address the scientific issues that arose pesticide chemical residue, including the source of these effects (Tiers II and during the risk assessment of mCry3A. all anticipated dietary exposures and all III). EPA asked the SAP to comment on the other exposures for which there is An acute oral toxicity study was equivalence of the mCry3A proteins reliable information.’’ This includes submitted for the mCry3A protein. The from corn event MIR604 and from exposure through drinking water and in acute oral toxicity data submitted recombinant E. coli - specifically the residential settings, but does not include support the prediction that the mCry3A presence of two forms in the bacterial- occupational exposure. Pursuant to protein would be non-toxic to humans. produced mCry3A protein and the section 408(c)(2)(B), in establishing or Male and female mice (5 of each) were differences in bioactivity in the WCRM maintaining in effect an exemption from dosed with 2,377 milligrams/kilograms bioassay. The majority of the Panel the requirement of a tolerance, EPA bodyweight (mg/kg bwt) of mCry3A concluded that the two forms of the must take into account the factors set protein. With the exception of one mCry3A are of relatively comparable forth in section 408(b)(2)(C), which female in the test group that was biological activity for the purposes of require EPA to give special euthanized on day 2 (due to adverse the human health assessments based on consideration to exposure of infants and clinical signs consistent with a dosing the amino acid sequence identity, lack children to the pesticide chemical injury), all other mice survived the of glycosylation, and general stability. residue in establishing a tolerance and study, gained weight, had no test EPA also asked the SAP to comment to ‘‘ensure that there is a reasonable material-related clinical signs, and had on EPA’s conclusions regarding the lack certainty that no harm will result to no test material-related findings at of mammalian toxicity and allergenicity infants and children from aggregate necropsy. of the mCry3A protein-specifically the exposure to the pesticide chemical When proteins are toxic, they are impact of the less potent mCry3A form residue. . . .’’ Additionally, section known to act via acute mechanisms and on the results of the acute oral toxicity 408(b)(2)(D) of the FFDCA requires that at very low dose levels (Sjoblad, Roy D., tests and the usefulness of in vitro the Agency consider ‘‘available et al. ‘‘Toxicological Considerations for digestibility studies and amino acid information concerning the cumulative Protein Components of Biological sequence homology analysis as part of effects of a particular pesticide’s Pesticide Products,’’ Regulatory the risk assessment. Overall, the Panel residues ’’ and ‘‘other substances that Toxicology and Pharmacology 15, 3–9 was more concerned with the quality of have a common mechanism of toxicity.’’ (1992)). Therefore, since no effects were data, i.e. inadequately described EPA performs a number of analyses to shown to be caused by the plant- methods and poor reproduction of data determine the risks from aggregate incorporated protectants, even at images. The Panel specifically noted exposure to pesticide residues. First, relatively high dose levels, the mCry3A that the amino acid sequence analysis to EPA determines the toxicity of protein is not considered toxic. Further, known toxins and allergens were pesticides. Second, EPA examines amino acid sequence comparisons missing the following data: exposure to the pesticide through food, showed no similarity between the Specification of which version of NCBI drinking water, and through other mCry3A protein and known toxic database was utilized; descriptions of exposures that occur as a result of proteins available in public protein data parameters utilized; and dates accessed pesticide use in residential settings. bases. According to the Codex for the BLAST search. EPA recognizes Alimintarius guidelines, the assessment that these are important parameters to III. Toxicological Profile of potential toxicity also includes include in a description of an amino Consistent with section 408(b)(2)(D) stability to heat (FAO/WHO Standards acid analysis and is requiring of the FFDCA, EPA has reviewed the Programme, 2001). Further data submission of additional information by available scientific data and other demonstrate that mCry3A is inactivated Syngenta Seeds, Inc. in order to confirm relevant information in support of this against Western corn rootworm, when the method used. However, EPA action and considered its validity, heated to 95 °C for 30 minutes. maintains that the conclusions of the completeness, and reliability and the Since mCry3A is a protein, allergenic amino acid sequence analysis are still relationship of this information to sensitivities were considered. Current valid for the purpose of the risk human risk. EPA has also considered scientific knowledge suggests that assessment. EPA reached this decision available information concerning the common food allergens tend to be based on the following: (1) Lack of variability of the sensitivities of major resistant to degradation by acid, and mammalian toxicity of mCry3A protein identifiable subgroups of consumers, proteases; may be glycosylated; and as shown by the acute oral mouse study; including infants and children. present at high concentrations in the (2) mCry3A protein is rapidly digested Data have been submitted food. Data have been submitted that in SGF; (3) mCry3A protein originates demonstrating the lack of mammalian demonstrate that the mCry3A protein is from a non-allergenic source; (4) lack of toxicity at high levels of exposure to the rapidly degraded by gastric fluid in sequence identity of mCry3A protein mCry3A protein alone. These data vitro. In a solution of simulated gastric with eight contiguous amino acids or demonstrate the safety of the products at fluid 1 milligrams/milliliter (mg/mL) more than 35% identity over 80 amino levels well above maximum possible mCry3A test protein mixed with acids with known toxins or allergens; exposure levels that are reasonably simulated gastric fluid (pH 1.2, and (5) mCry3A protein is not anticipated in the crops. This is similar containing 2 mg/mL NaCl, 14 µL 6 N glycosylated when expressed in corn. to the Agency position regarding HCl, and 2.7 mg/mL pepsin) resulting in Section 408(c)(2)(A)(i) of the FFDCA toxicity and the requirement of residue 10 pepsin activity units/microgram (µg) allows EPA to establish an exemption data for the microbial Bacillus protein (complies with year 2000 U.S. from the requirement for a tolerance (the thuringiensis products from which this Pharmacopoeia recommendations),
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complete degradation of detectable occur, the Agency concludes that such Bacillus thuringiensis products from mCry3A protein occurred within 2 exposure would present reasonable which this plant-incorporated minutes. A comparison of amino acid certainty of no harm due to the lack of protectant was derived. (See 40 CFR sequences of known allergens mammalian toxicity and the rapid 158.740(b)(2)(i). Moreover, mCry3A uncovered no evidence of any homology digestibility demonstrated for the showed no sequence similarity to any with mCry3A, even at the level of eight mCry3A protein. known toxin and was inactivated by contiguous amino acids residues. heat against Western corn rootworm. No V. Cumulative Effects Further, data demonstrate that mCry3A further toxicity testing and residue data is not glycosylated, and is present in Pursuant to FFDCA section were required because for microbial low levels in corn tissue. Therefore, the 408(b)(2)(D)(v), EPA has considered products, further toxicity testing and potential for the mCry3A protein to be available information on the cumulative residue data requirements are triggered a food allergen is minimal. As noted effects of such residues and other by significant acute effects in studies above, toxic proteins typically act as substances that have a common such as the mouse oral toxicity study to acute toxins with low dose levels. mechanism of toxicity. These verify the observed effects and clarify Therefore, since no effects were shown considerations included the cumulative the source of these effects (Tiers II and to be caused by the plant-incorporated effects on infants and children of such III). protectant, even at relatively high dose residues and other substances with a Modified Cry3A protein residue levels, the mCry3A protein is not common mechanism of toxicity. chemistry data were not required for a considered toxic. Because there is no indication of human health effects assessment of the IV. Aggregate Exposures mammalian toxicity, resulting from the subject plant-incorporated protectant plant-incorporated protectant, we ingredients because of the lack of In examining aggregate exposure, conclude that there are no cumulative mammalian toxicity. However, data section 408 of the FFDCA directs EPA effects for the mCry3A protein. submitted demonstrated low levels of to consider available information mCry3A in corn tissues with less than concerning exposures from the pesticide VI. Determination of Safety for U.S. 2 µg mCry3A protein/gram dry weight residue in food and all other non- Population, Infants and Children in kernals and less than 30 µg mCry3A occupational exposures, including A. Toxicity and Allergenicity protein/gram dry weight of whole corn drinking water from ground water or Conclusions plant. surface water and exposure through pesticide use in gardens, lawns, or The data submitted and cited Since modified Cry3A is a protein, its buildings (residential and other indoor regarding potential health effects for the potential allergenicity is also considered uses). mCry3A protein include the as part of the toxicity assessment. Data The Agency has considered available characterization of the expressed considered as part of the allergenicity information on the aggregate exposure mCry3A protein in corn, as well as the assessment include that the modified levels of consumers (and major acute oral toxicity, and in vitro Cry3A protein came from Bacillus identifiable subgroups of consumers) to digestibility of the proteins. The results thuringiensis which is not a known the pesticide chemical residue and to of these studies were determined allergenic source, showed no sequence other related substances. These applicable to evaluate human risk, and similarity to known allergens, was considerations include dietary exposure the validity, completeness, and readily degraded by pepsin, and was not under the tolerance exemption and all reliability of the available data from the glycosylated when expressed in the other tolerances or exemptions in effect studies were considered. plant. Therefore, there is a reasonable for the plant-incorporated protectant Adequate information was submitted certainty that modified Cry3A protein chemical residue, and exposure from to show that the mCry3A protein test will not be an allergen. non-occupational sources. Exposure via material derived from microbial cultures Neither available information the skin or inhalation is not likely since was biochemically and functionally concerning the dietary consumption the plant-incorporated protectant is similar to the protein produced by the patterns of consumers (and major contained within plant cells, which plant-incorporated protectant identifiable subgroups of consumers essentially eliminates these exposure ingredients in corn. Production of including infants and children) nor routes or reduces these exposure routes microbially produced protein was safety factors that are generally to negligible. Exposure via residential or chosen in order to obtain sufficient recognized as appropriate for the use of lawn use to infants and children is also material for testing. animal experimentation data were not expected because the use sites for The acute oral toxicity data submitted evaluated. The lack of mammalian the mCry3A protein are all agricultural supports the prediction that the mCry3A toxicity at high levels of exposure to the for control of insects. Oral exposure, at protein would be non-toxic to humans. mCry3A protein, as well as the minimal very low levels, may occur from As mentioned above, when proteins are potential to be a food allergen ingestion of processed corn products toxic, they are known to act via acute demonstrate the safety of the product at and, potentially, drinking water. mechanisms and at very low dose levels levels well above possible maximum However, oral toxicity testing done at a (Sjoblad, Roy D., et al. ‘‘Toxicological exposure levels anticipated in the crop. dose in excess of 2 grams/kilogram (gm/ Considerations for Protein Components The genetic material necessary for the kg) showed no adverse effects. of Biological Pesticide Products,’’ production of the plant-incorporated Furthermore, the expression of the Regulatory Toxicology and protectant active ingredients are the modified Cry3A protein in corn kernals Pharmacology 15, 3–9 (1992)). Since no nucleic acids (DNA, RNA) which has been shown to be in the parts per effects were shown to be caused by comprise genetic material encoding million range, which makes the mCry3A protein, even at relatively high these proteins and their regulatory expected dietary exposure several dose levels (2,377 mg/kg bwt), the regions. The genetic material (DNA, orders of magnitude lower than the mCry3A protein is not considered toxic. RNA), necessary for the production of amounts of mCry3A protein shown to This is similar to the Agency position mCry3A protein has been exempted have no toxicity. Therefore, even if regarding toxicity and the requirement under the blanket exemption for all negligible aggregate exposure should of residue data for the microbial nucleic acids (40 CFR 174.475).
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B. Infants and Children Risk been submitted and found acceptable by substantial direct effect on States, on the Conclusions the Agency. relationship between the national government and the States, or on the FFDCA section 408(b)(2)(C) provides C. Codex Maximum Residue Level that EPA shall assess the available distribution of power and No Codex maximum residue levels responsibilities among the various information about consumption patterns exist for the plant-incorporated among infants and children, special levels of government, as specified in protectant Bacillus thuringiensis Executive Order 13132, entitled susceptibility of infants and children to mCry3A protein and the genetic pesticide chemical residues and the Federalism (64 FR 43255, August 10, material necessary for its production in 1999). Executive Order 13132 requires cumulative effects on infants and corn. children of the residues and other EPA to develop an accountable process substances with a common mechanism VIII. Statutory and Executive Order to ensure ‘‘meaningful and timely input by State and local officials in the of toxicity. Reviews In addition, FFDCA section development of regulatory policies that This final rule establishes an have federalism implications.’’ ‘‘Policies 408(b)(2)(C) also provides that EPA shall exemption from the requirement of a apply an additional tenfold margin of that have federalism implications’’ is tolerance under section 408(d) of the defined in the Executive order to safety, also referred to as margins of FFDCA in response to a petition exposure (MOEs), for infants and include regulations that have submitted to the Agency. The Office of ‘‘substantial direct effects on the States, children in the case of threshold effects Management and Budget (OMB) has on the relationship between the national to account for prenatal and postnatal exempted these types of actions from government and the States, or on the toxicity and the completeness of the review under Executive Order 12866, distribution of power and data base unless EPA determines that a entitled Regulatory Planning and responsibilities among the various different MOE will be safe for infants Review (58 FR 51735, October 4, 1993). levels of government.’’ This final rule and children. Because this rule has been exempted directly regulates growers, food In this instance, based on all the from review under Executive Order processors, food handlers and food available information, the Agency 12866 due to its lack of significance, retailers, not States. This action does not concludes that there is a finding of no this rule is not subject to Executive alter the relationships or distribution of toxicity for the mCry3A protein and the Order 13211, Actions Concerning power and responsibilities established genetic material necessary for their Regulations That Significantly Affect by Congress in the preemption production. Thus, there are no threshold Energy Supply, Distribution, or Use (66 provisions of section 408(n)(4) of the effects of concern to infants and FR 28355, May 22, 2001). This final rule FFDCA. For these same reasons, the children when the mCry3A protein is does not contain any information Agency has determined that this rule used as a plant-incorporated protectant. collections subject to OMB approval does not have any ‘‘tribal implications’’ Accordingly, the Agency concludes that under the Paperwork Reduction Act as described in Executive Order 13175, the additional MOE is not necessary to (PRA), 44 U.S.C. 3501 et seq., or impose entitled Consultation and Coordination protect infants and children, and that any enforceable duty or contain any with Indian Tribal Governments (65 FR not adding any additional MOE will be unfunded mandate as described under 67249, November 6, 2000). Executive safe for infants and children. Title II of the Unfunded Mandates Order 13175, requires EPA to develop C. Overall Safety Conclusion Reform Act of 1995 (UMRA) (Public an accountable process to ensure Law 104–4). Nor does it require any ‘‘meaningful and timely input by tribal There is a reasonable certainty that no special considerations under Executive officials in the development of harm will result from aggregate Order 12898, entitled Federal Actions to regulatory policies that have tribal exposure to the U.S. population, Address Environmental Justice in implications.’’ ‘‘Policies that have tribal including infants and children, to the Minority Populations and Low-Income implications’’ is defined in the mCry3A protein and the genetic Populations (59 FR 7629, February 16, Executive order to include regulations material necessary for its production. 1994); or OMB review or any Agency that have ‘‘substantial direct effects on This includes all anticipated dietary action under Executive Order 13045, one or more Indian tribes, on the exposures and all other exposures for entitled Protection of Children from relationship between the Federal which there is reliable information. Environmental Health Risks and Safety Government and the Indian tribes, or on The Agency has arrived at this Risks (62 FR 19885, April 23, 1997). the distribution of power and conclusion because, as discussed above, This action does not involve any responsibilities between the Federal no toxicity to mammals has been technical standards that would require Government and Indian tribes.’’ This observed, nor any indication of Agency consideration of voluntary rule will not have substantial direct allergenicity potential for the plant- consensus standards pursuant to section effects on tribal governments, on the incorporated protectant. 12(d) of the National Technology relationship between the Federal VII. Other Considerations Transfer and Advancement Act of 1995 Government and Indian tribes, or on the (NTTAA), Public Law 104–113, section distribution of power and A. Endocrine Disruptors 12(d) (15 U.S.C. 272 note). Since responsibilities between the Federal The pesticidal active ingredient is a tolerances and exemptions that are Government and Indian tribes, as protein, derived from sources that are established on the basis of a petition specified in Executive Order 13175. not known to exert an influence on the under section 408(d) of the FFDCA, Thus, Executive Order 13175 does not endocrine system. Therefore, the such as the exemption from the apply to this rule. Agency is not requiring information on requirement of a tolerance in this final IX. Congressional Review Act the endocrine effects of the plant- rule, do not require the issuance of a incorporated protectant at this time. proposed rule, the requirements of the The Congressional Review Act, 5 Regulatory Flexibility Act (RFA) (5 U.S.C. 801 et seq., as added by the Small B. Analytical Method(s) U.S.C. 601 et seq.) do not apply. In Business Regulatory Enforcement A method for extraction and ELISA addition, the Agency has determined Fairness Act of 1996, generally provides analysis of mCry3A protein in corn has that this action will not have a that before a rule may take effect, the
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agency promulgating the rule must DEPARTMENT OF HOMELAND Protection Act of 1973, 42 U.S.C. 4104, submit a rule report, which includes a SECURITY and 44 CFR part 67. copy of the rule, to each House of the The Agency has developed criteria for Congress and to the Comptroller General Federal Emergency Management floodplain management in floodprone of the United States. EPA will submit a Agency areas in accordance with 44 CFR part report containing this rule and other 60. required information to the U.S. Senate, 44 CFR Part 67 Interested lessees and owners of real the U.S. House of Representatives, and property are encouraged to review the the Comptroller General of the United Final Flood Elevation Determinations proof Flood Insurance Study and FIRM States prior to publication of this final AGENCY: Federal Emergency available at the address cited below for rule in the Federal Register. This final Management Agency (FEMA), each community. The BFEs and rule is not a ‘‘major rule’’ as defined by Department of Homeland Security, modified BFEs are made final in the 5 U.S.C. 804(2). Mitigation Division. communities listed below. Elevations at selected locations in each community List of Subjects in 40 CFR Part 180 ACTION: Final rule. are shown. Environmental protection, SUMMARY: Base (1% annual chance) National Environmental Policy Act. Administrative practice and procedure, Flood Elevations (BFEs) and modified This rule is categorically excluded from Agricultural commodities, Pesticides BFEs are made final for the the requirements of 44 CFR Part 10, and pests, Reporting and recordkeeping communities listed below. The BFEs Environmental Consideration. No requirements. and modified BFEs are the basis for the environmental impact assessment has been prepared. Dated: September 29, 2006. floodplain management measures that each community is required either to Regulatory Flexibility Act. As flood James Jones, elevation determinations are not within Director, Office of Pesticide Programs. adopt or to show evidence of being already in effect in order to qualify or the scope of the Regulatory Flexibility I Therefore, 40 CFR chapter I is remain qualified for participation in the Act, 5 U.S.C. 601–612, a regulatory amended as follows: National Flood Insurance Program flexibility analysis is not required. (NFIP). Regulatory Classification. This final PART 174—AMENDED rule is not a significant regulatory action EFFECTIVE DATES: The date of issuance of under the criteria of Section 3(f) of I 1. The authority citation for part 174 the Flood Insurance Rate Map (FIRM) Executive Order 12866 of September 30, continues to read as follows: showing BFEs and modified BFEs for 1993, Regulatory Planning and Review, each community. This date may be Authority: 21 U.S.C. 321(q), 346a and 371. 58 FR 51735. obtained by contacting the office where Executive Order 13132, Federalism. the maps are available for inspection as This rule involves no policies that have I 2. Section 174.456 is revised to read indicated on the table below. federalism implications under Executive as follows: ADDRESSES: The final BFEs for each Order 13132. § 174.456 Bacillus thuringiensis modified community are available for inspection Executive Order 12988, Civil Justice Cry3A protein (mCry3A) and the genetic at the office of the Chief Executive Reform. This rule meets the applicable material necessary for its production in Officer of each community. The standards of Executive Order 12988. corn. respective addresses are listed in the List of Subjects in 44 CFR Part 67 Bacillus thuringiensis modified Cry3A table below. protein (mCry3A) and the genetic FOR FURTHER INFORMATION CONTACT: Administrative practice and material necessary for its production in William R. Blanton, Jr., CFM, Acting procedure, flood insurance, reporting corn is exempt from the requirement of Section Chief, Engineering Management and recordkeeping requirements. a tolerance when used as plant- Section, Mitigation Division, 500 C I Accordingly, 44 CFR Part 67 is incorporated protectant in the food and Street SW., Washington, DC 20472, amended as follows: feed commodities of field corn, sweet (202) 646–3151. PART 67—[AMENDED] corn and popcorn. Genetic material SUPPLEMENTARY INFORMATION: FEMA necessary for its production means the makes the final determinations listed I 1. The authority citation for Part 67 genetic material which comprise genetic below for the modified BFEs for each continues to read as follows: material encoding the mCry3A protein community listed. These modified Authority: 42 U.S.C. 4001 et seq.; and its regulatory regions. Regulatory elevations have been published in Reorganization Plan No. 3 of 1978, 3 CFR, regions are the genetic material, such as newspapers of local circulation and 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, promoters, terminators, and enhancers, ninety (90) days have elapsed since that 3 CFR, 1979 Comp., p. 376. that control the expression of the publication. The Mitigation Division genetic material encoding the mCry3A Director has resolved any appeals § 67.11 [Amended] protein. resulting from this notification. I 2. The tables published under the [FR Doc. E6–18223 Filed 10–31–06; 8:45 am] This final rule is issued in accordance authority of § 67.11 are amended as BILLING CODE 6560–50–S with Section 110 of the Flood Disaster follows:
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#Depth in feet above ground *Elevation in feet State City/town/county Source of flooding Location (NGVD) +Elevation in feet (NAVD) Modified
Madera County, California Docket No.: FEMA–B–7432
California ...... Madera County ...... San Joaquin River ...... At State Highway 145 ...... *225 Just upstream of State Highway 99 ...... *244 Approximately 5,000 feet upstream of *251 Atchison, Topeka and Santa Fe Rail- road.
# Depth in feet above ground. * National Geodetic Vertical Datum. + North American Vertical Datum. ADDRESSES Madera County Unincorporated Areas Maps are available for inspection at the Madera County Planning Department, 135 West Yosemite Avenue, Madera, California 93637.
San Joaquin County, California Docket No.: FEMA–B–7445
California ...... San Joaquin County..... Stanislaus River...... Approximately 5 miles downstream of *45 State Highway 99. Approximately 3 miles upstream of Santa *93 Fe Railroad. California ...... City of Ripon, San Joa- Stanislaus River ...... Approximately 3.3 miles downstream of *48 quin County. State Highway 99. Approximately 1.3 miles upstream of *57 State Highway 99.
# Depth in feet above ground. * National Geodetic Vertical Datum. + North American Vertical Datum. ADDRESSES San Joaquin County Unincorporated Areas Maps are available for inspection at the Department of Public Works, 1810 East Hazelnut Avenue, Stockton, California 95202. City of Ripon Maps are available for inspection at City Hall, 259 North Wilma Avenue, Ripon, California 95366.
Shasta County, California Docket No.: FEMA–B–7453
California ...... City of Redding, Shasta Churn Creek...... Approximately 250 feet upstream of *465 County. (Upper) Churn Creek Road. Approximately 3,350 feet upstream of *471 (Upper) Churn Creek Road. California ...... Shasta County ...... Churn Creek ...... At the confluence of Churn Creek and the *410 Sacramento River. Approximately 250 feet upstream of *465 (Upper) Churn Creek Road.
# Depth in feet above ground. * National Geodetic Vertical Datum. + North American Vertical Datum. ADDRESSES City of Redding Maps are available for inspection at the County Courthouse, 1855 Placier Street, Redding, California 96001. Shasta County Unincorporated Areas Maps are available for inspection at City Hall, 777 Cypress Avenue, 1st Floor, Redding, California 96001.
Linn County, Iowa Docket No.: FEMA–B–7453
Iowa ...... Linn County ...... Long Branch Creek ...... Just upstream of Highway 11 ...... +735 Approximately 1,800 feet downstream of +737 Iva Road. Iowa ...... Linn County ...... West Yellow Creek ...... Approximately 2,000 feet downstream ..... +727 Just downstream of Highway 11 ...... +734 # Depth in feet above ground. * National Geodetic Vertical Datum.
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#Depth in feet above ground *Elevation in feet State City/town/county Source of flooding Location (NGVD) +Elevation in feet (NAVD) Modified
+ North American Vertical Datum. ADDRESSES Linn County Unincorporated Areas Maps are available for inspection at the Linn County, County Courthouse 108 North High Street, Linneus, Missouri 64653.
Tama County, Iowa Docket No.: FEMA–B–7453
Iowa ...... Tama County...... Deer Creek...... Approximately 2,700 feet upstream of +819 confluence of Deer Creek with Iowa River. Approximately 400 feet downstream of +823 13th Street. Iowa ...... Tama County ...... Iowa River ...... Approximately 1,400 feet downstream of +784 Iowa River. Approximately 2 miles upstream of Sta- +788 tion Street. Iowa ...... Tama County ...... Iowa River at City of Tama Approximately 7,000 feet downstream of +814 U.S highway 63. Approximately 1,800 feet upstream of +819 confluence of Deer Creek with Iowa River. Iowa ...... Tama County ...... Mud Creek ...... At confluence with Iowa River ...... +814 Just downstream of 9th Street ...... +836 Iowa ...... Tama County ...... Otter Creek ...... Just west of the intersection of Station +785 Street Highway 212.
# Depth in feet above ground. * National Geodetic Vertical Datum. + North American Vertical Datum. ADDRESSES Tama County Unincorporated Areas: Maps are available for inspection at the 100 North Main Street, Toledo, Iowa 52342.
Plymouth County, Massachusetts Docket No.: FEMA–D–7624
Massachusetts ...... Town of Marshfield, Massachusetts Bay, Approximately 300 feet southwest of the *10 Plymouth County. Duxbury Marsh. intersection of Careswell Street and Colby Hewitt Lane. Approximately 1,700 feet southeast of the *13 intersection of Careswell Street and Colby Hewitt Lane. Massachusetts ...... Town of Marshfield, Massachusetts Bay ...... Approximately 1,500 feet north of the *11 Plymouth County. intersection of Bay Street and Canal Street. Approximately 896 feet east of the inter- *23 section of Cove Street and Central Street. Massachusetts ...... Town of Marshfield, Massachusetts Bay, Approximately 400 feet west of the inter- *10 Plymouth County. Green Harbor River. section of Meetinghouse Lane and Stagecoach Drive. Massachusetts ...... Town of Marshfield, Massachusetts Bay ...... At the intersection of Hancock Street and #2 Plymouth County. Ashburton Avenue.
# Depth in feet above ground. * National Geodetic Vertical Datum. + North American Vertical Datum. ADDRESSES Plymouth County Unincorporated Areas Maps available for inspection at the Marshfield Town Hall, Building Department, 870 Moraine Street, Marshfield, Massachusetts. Town of Marshfield Maps available for inspection at the Marshfield Town Hall, Building Department, 870 Moraine Street, Marshfield, Massachusetts.
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#Depth in feet above ground *Elevation in feet State City/town/county Source of flooding Location (NGVD) +Elevation in feet (NAVD) Modified
Burleigh County, North Dakota Docket No.: FEMA–B–7439
North Dakota ...... City of Bismarck, Missouri River ...... Approximately 3.8 miles upstream of con- *1,632 Burleigh County. fluence of Little Heart River. Approximately 1.7 miles upstream of Old *1,639 Brunt Creek. North Dakota ...... Burleigh County...... Missouri River...... Approximately 500 feet downstream of *1,628 confluence of Apple Creek. Approximately 5.7 miles upstream of con- *1,644 fluence Square Butte Creek. North Dakota ...... Burleigh County ...... Brunt Creek ...... At confluence with Missouri River ...... *1,640 Just upstream of North Dakota Highway *1,650 1804.
# Depth in feet above ground. * National Geodetic Vertical Datum. + North American Vertical Datum ADDRESSES City of Bismarck Maps are available for inspection at the Building Inspection Office, 1020 East Central Avenue, Bismarck, North Dakota 58501. Burleigh County Unincorporated Areas Maps are available for inspection at the Building Inspection Office, 1020 East Central Avenue, Bismarck, North Dakota 58501.
Burleigh County, North Dakota Docket No.: FEMA–B–7449
North Dakota ...... City of Lincoln, Burleigh Apple Creek ...... Just upstream of Railroad ...... +1,644 County. Approximately 5,000 feet downstream of +1,646 confluence of Hay Creek.
# Depth in feet above ground. * National Geodetic Vertical Datum. + North American Vertical Datum. ADDRESSES City of Lincoln Maps are available for inspection at City Hall, 74 Santee Road, Lincoln, North Dakota 58504.
Summit County, Utah Docket No.: FEMA–B–7453
Utah ...... Summit County...... East Canyon Creek...... Approximately 2,200 feet upstream of +6,313 confluence with Threemile Canyon Creek. Approximately 150 feet of upstream of +6,375 Bitner Branch Road. Utah ...... Summit County ...... Kimball Creek ...... At confluence with North Parkley’s Park +6,375 Drainage. Just downstream of Old Ranch Road +6,438 Canal. Utah ...... Summit County ...... McLeod Creek ...... At Canal Entrance Culvert ...... +6,506 Approximately 350 feet ...... +6,629 Utah ...... Summit County ...... North Parkley’s Park At the confluence with Kimball Creek ...... +6,375 Drainage. Approximately 15,800 feet upstream of +6,430 confluence with Kimball Creek. Utah ...... Summit County ...... Red Pine Creek ...... At confluence with McLeod Creek ...... +6,538 Approximately 100 feet downstream of +6,694 Route 224. Utah ...... Summit County ...... McLeod Creek through Just upstream of Old Ranch Road Canal +6,438 Quarry Mountain. At divergence from McLeod Creek ...... +6,584
# Depth in feet above ground. * National Geodetic Vertical Datum. + North American Vertical Datum.
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#Depth in feet above ground *Elevation in feet State City/town/county Source of flooding Location (NGVD) +Elevation in feet (NAVD) Modified
ADDRESSES Summit County Unincorporated Areas: Maps are available for inspection at Summit County Courthouse, 60 North Main, Coalville, Utah 84017.
Shenandoah County, Virginia Docket No.: FEMA–B–7453
Virginia ...... Shenandoah County .... Stony Creek ...... Approximately 1,150 feet downstream of *1,082 Dellinger Acres Road. Approximately 1.63 miles upstream of *1,375 Lake Laura Dam.
# Depth in feet above ground. * National Geodetic Vertical Datum. + North American Vertical Datum. ADDRESSES Shenandoah County Unincorporated Areas Maps are available for inspection at Planning and Zoning Office, 600 North Main Street, Suite 107, Woodstock, VA 22664.
Ferry County, Washington Docket No.: FEMA–B–7453
Washington ...... Ferry County ...... Sanpoil River ...... At border with Colville Indian Reservation +2,025 Approximately 600 feet upstream of Fish +2,430 Hatchery Road (Route 21).
# Depth in feet above ground. * National Geodetic Vertical Datum. + North American Vertical Datum. ADDRESSES Ferry County Unincorporated Areas Maps are available for inspection at County Courthouse, 290 East Tessie Avenue, Republic, Washington 99166.
* Elevation in feet (NGVD) + Elevation in Flooding source(s) Location of referenced elevation feet Communities (NAVD) affected # Depth in feet above ground Modified
Fresno County, California and Incorporated Areas Docket No.: FEMA–B–7432
San Joaquin River ...... At State Highway 145 ...... * 225 City of Fresno, Fresno County Just upstream of State Highway 99 ...... * 244 (Unincorporated Areas). Approximately 5,000 feet upstream of Atchison, Topeka and * 251 Santa Fe Railroad.
# Depth in feet above ground * National Geodetic Vertical Datum + North American Vertical Datum ADDRESSES Fresno County (Unincorporated Areas) Maps are available for inspection at the Fresno County Department of Public Works and Planning, 2220 Tulare Street, Fresno, California 93721. City of Fresno Maps are available for inspection at City Hall, 2600 Fresno Street, Room 3043, Fresno, California 93721.
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* Elevation in feet (NGVD) + Elevation in Flooding source(s) Location of referenced elevation feet Communities (NAVD) affected # Depth in feet above ground Modified
Merced County, California and Incorporated Areas Docket No.: FEMA–B–7437
Bear Creek ...... At McKee Road ...... * 183 Merced County (Unincor- porated Areas). Just upstream of Bear Creek Drive ...... * 255 Black Rascal ...... At confluence with Bear Creek ...... * 199 Merced County (Unincor- porated Areas). Diversion Channel ...... Approximately 3,700 feet upstream of East Olive Avenue ...... * 202 Merced County (Unincor- porated Areas). Local Ponding ...... Northeast of the intersection of East Childs Avenue and the * 200 Merced County (Unincor- Fairfield Canal. porated Areas), City of Merced. Northeast of the intersection of Mission Avenue and South * 200 Arboleda Drive. Local Ponding ...... Northeast of the intersection of East Childs Avenue and Tower * 196 Merced County (Unincor- Road. porated Areas), City of Merced. Southeast of the intersection of Le Grand Road and US High- * 196 way 99. Northeast of the intersection of Gerarad Avenue and the Fair- * 196 field Canal. Local Ponding ...... Northeast of the intersection of Mission Avenue and the Fair- * 193 Merced County (Unincor- field Canal. porated Areas), City of Merced. Northeast of the intersection of East Childs Avenue and Kirby * 191 Road. Local Ponding ...... Northeast of the intersection of State Highway 140 and East * 190 Merced County (Unincor- Street. porated Areas), City of Merced. Southeast of the intersection of US Highway 99 and Mariposa * 189 Way. Local Ponding ...... Northeast and Southeast of the intersection of East Childs Av- * 186 Merced County (Unincor- enue and the Hartley Bradley Lateral. porated Areas), City of Merced. Local Ponding ...... Southeast of the intersection of US Highway 99 and Vassar * 183 Merced County (Unincor- Avenue. porated Areas). Local Ponding ...... Southeast of the intersection of US Highway 99 and Mission * 179 Merced County (Unincor- Avenue. porated Areas). Northeast of the intersection of Sandy Mush Road and Givens- * 179 Lustre Road. Local Ponding ...... Northeast and Southeast of the intersection of US Highway 99 * 185 Merced County (Unincor- and McHenry Road. porated Areas). Local Ponding ...... Southeast of the intersection of East Childs Avenue and Carol * 176 City of Merced. Avenue. Local Ponding ...... Northeast of the intersection of Mission Avenue and Tyler * 165 Merced County (Unincor- Road. porated Areas). Local Ponding ...... Northeast of the intersection of Healy Road and Deadman * 164 Merced County (Unincor- Creek. porated Areas). Local Ponding ...... Northeast of the intersection of State Highway 59 and Duck * 151 Merced County (Unincor- Slough. porated Areas). Local Ponding ...... Northeast of the intersection of Mariposa Way and Burchell * 237 Merced County (Unincor- Avenue. porated Areas). Local Ponding ...... Northeast of the intersection of Gerard Avenue and Plainsburg * 226 Merced County (Unincor- Avenue. porated Areas). Local Ponding ...... Southeast of the intersection of Kadota Avenue and Plainsburg * 222 Merced County (Unincor- Road. porated Areas). Shallow Flooding ...... From the intersection of Woodland Avenue South and West to # 1 Merced County (Unincor- State Highway 59. porated Areas), City of Merced. From the AT & SF Railroad West to State Highway 59 ...... # 1
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* Elevation in feet (NGVD) + Elevation in Flooding source(s) Location of referenced elevation feet Communities (NAVD) affected # Depth in feet above ground Modified
Shallow Flooding ...... From the AT & SF Railroad West to State Highway 59 ...... # 2 Merced County (Unincor- porated Areas). Shallow Flooding ...... Northeast of the intersection of State Highway 59 and Duck # 3 Merced County (Unincor- Slough. porated Areas).
# Depth in feet above ground. * National Geodetic Vertical Datum. + North American Vertical Datum. ADDRESSES Merced County (Unincorporated Areas) Maps are available for inspection at Merced County Department of Public Works, 715 Martin Luther King Jr. Way, Merced, California 95340. City of Merced Maps are available for inspection at City Hall, 678 West 18th Street, Merced, California 95340.
Coweta County, Georgia and Incorporated Areas Docket No.: FEMA–B–7453
Little Wahoo Creek ...... Approximately 130 feet upstream of confluence with Wahoo + 800 Coweta County (Unincor- Creek. porated Areas). Approximately 1,100 feet upstream of confluence with Wahoo + 800 Creek. Snake Creek ...... Approximately 170 feet upstream of confluence with Wahoo + 796 Coweta County (Unincor- Creek. porated Areas). Approximately 4,200 feet upstream of confluence with Wahoo + 801 Creek. Tributary 1 to Persimmon Creek At confluence with Persimmon Creek ...... + 866 Coweta County (Unincor- porated Areas). Approximately 120 feet upstream of confluence with Permis- + 866 sion Creek. Tributary 1 to Snake Creek ...... At confluence with Snake Creek ...... + 873 City of Newman. Approximately 40 feet upstream of confluence with Snake + 873 Creek. Tributary 2 to Mineral Spring At confluence with Mineral Spring Branch ...... + 830 Coweta County (Unincor- Branch. porated Areas). Approximately 780 feet upstream of Fourth Street ...... + 830 Tributary 2 to Sandy Creek ...... At confluence with Tributary 3 to Sandy Creek ...... + 793 Coweta County (Unincor- porated Areas). Approximately 30 feet upstream of confluence with Tributary 3 + 793 to Sandy Creek. Tributary 2 to Shoal Creek ...... Approximately 500 feet upstream of confluence with Shoal + 839 Coweta County (Unincor- Creek. porated Areas). Approximately 1,720 feet upstream of confluence with Shoal + 839 Creek. Tributary 3 to Shoal Creek ...... Approximately 140 feet upstream of confluence with Shoal + 854 Coweta County (Unincor- Creek. porated Areas). Approximately 500 feet upstream of confluence with Shoal + 854 Creek. Tributary 3 to Wahoo Creek ...... Approximately 110 feet upstream of confluence with Tributary + 868 City of Newman. 2 to Wahoo Creek. Just downstream of Bullsboro Drive/State Highway 34 ...... + 869 Tributary 4 to Wahoo Creek ...... Approximately 100 feet upstream of confluence with Tributary + 873 City of Newman. 3 to Wahoo Creek. Approximately 650 feet upstream of confluence with Tributary + 873 3 to Wahoo Creek. Tributary 6 to Wahoo Creek ...... At confluence with Tributary 2 to Wahoo Creek ...... + 881 City of Newman. Approximately 160 feet upstream of confluence with Tributary + 881 2 to Wahoo Creek. Tributary 9 to Wahoo Creek ...... At confluence with Wahoo Creek ...... + 875 City of Newman. Approximately 600 feet upstream of confluence with Wahoo + 875 Creek.
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* Elevation in feet (NGVD) + Elevation in Flooding source(s) Location of referenced elevation feet Communities (NAVD) affected # Depth in feet above ground Modified
Tributary 10 to Wahoo Creek .... Approximately 220 feet upstream of confluence with Wahoo + 882 City of Newman. Creek. Approximately 420 feet upstream of confluence with Wahoo + 882 Creek. Tributary 12 to Wahoo Creek .... At confluence with Wahoo Creek ...... + 891 City of Newman. Approximately 270 feet upstream of confluence with Wahoo + 896 Creek.
# Depth in feet above ground. * National Geodetic Vertical Datum. + North American Vertical Datum. ADDRESSES City of Newman Maps are available for inspection at the Community Map Repository, 25 LaGrange Street, Newman, Georgia. Coweta County (Unincorporated Areas) Maps are available for inspection at the Community Map Repository, 22 East Broad Street, Newman, Georgia.
Henry County, Georgia and Incorporated Areas Docket Nos.: FEMA–B–7454 and FEMA–P7903
Little Cotton Indian Creek ...... At confluence with Big Cotton Indian Creek ...... + 655 Henry County (Unincorporated Areas). Approximately 1,000 feet upstream of the confluence with Big + 655 Cotton Indian Creek.
# Depth in feet above ground. * National Geodetic Vertical Datum. + North American Vertical Datum. ADDRESSES Henry County, Georgia (Unincorporated Areas) Maps are available for inspection at the Community Map Repository, 140 Henry Parkway, McDonough, Georgia 30253.
Berrien County, Michigan and Incorporated Areas Docket No.: FEMA–B–7453
Bedortha Drain ...... Just downstream of Lake Street ...... * 617 City of Bridgman. 250 feet upstream of Railroad ...... * 637 Bridgman City Drain ...... Confluence of Bedortha Drain ...... * 627 City of Bridgman. Approximately 1,250 feet upstream of Railroad ...... * 644 Bridgman Drain Tributary ...... Confluence with Bridgman City Drain ...... * 631 City of Bridgman. Approximately 370 feet downstream of Railroad ...... * 632 Lake Michigan ...... Shoreline for entire county ...... * 585 Benton Township, Benton Har- bor, Bridgman, Chikaming Township, Grand Beach, Hagar Township, Lake Township, Lincoln Township, Michiana, New Buffalo, New Buffalo Township, Shoreham, St. Joseph. Tanner Creek ...... Confluence with Lake Michigan ...... * 585 City of Bridgman. Confluence with Bedortha Drain ...... * 617 William & Esseg Drain ...... Confluence with Tanner Creek ...... * 617 City of Bridgman. Bridgman City Limit ...... * 630
# Depth in feet above ground. * National Geodetic Vertical Datum. + North American Vertical Datum. ADDRESSES City of Benton Harbor Maps are available for inspection at Benton Harbor City Hall, 200 E. Wall Street, Benton Harbor, Michigan 49023. Benton Township
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* Elevation in feet (NGVD) + Elevation in Flooding source(s) Location of referenced elevation feet Communities (NAVD) affected # Depth in feet above ground Modified
Maps are available for inspection at Inspection Department—Benton Township, 1725 Territorial Road, Benton Harbor, Michigan 49022. City of Bridgman Maps are available for inspection at Bridgman City Hall, 9765 Maple Street, Bridgman, Michigan 49106. Chikaming Township Maps are available for inspection at Chikaming Township, 14900 Lakeside Road, Lakeside, Michigan 49116. Village of Grand Beach Maps are available for inspection at Village Office of Grand Beach, 48200 Perkins Boulevard, Grand Beach, Michigan 49117. Hagar Township Maps are available for inspection at Hager Township Hall, 3900 Riverside, Riverside, Michigan 49084. Lake Township Maps are available for inspection at Lake Township Hall, 3220 Shawnee Road, Bridgman, Michigan 49106. Lincoln Township Maps are available for inspection at 2055 West John Beers Road, Stevensville, Michigan 49127. Village of Michiana Maps are available for inspection at Village of Michiana, 4000 Cherokee Drive, Michiana, Michigan 49117. City of New Buffalo Maps are available for inspection at City Clerks Office—New Buffalo City Hall, 224 West Buffalo Street, New Buffalo, Michigan 49117. New Buffalo Township Maps are available for inspection at Town Hall—New Buffalo Township, 17425 Red Arrow Highway, New Buffalo, Michigan 49117. Village of Shoreham Maps are available for inspection at St. Joseph Town Hall—Building & Zoning Department, 3000 Washington Avenue, St. Joseph, Michigan 49085. City of St. Joseph Maps are available for inspection at City of St. Joseph, 700 Broad Street, St. Joseph, Michigan 49085.
Blaine County, Montana and Incorporated Areas Docket No.: FEMA–B–7454
Milk River ...... Approximately 2.5 river miles downstream of U.S Highway 2 ... + 2,287 Blaine County (Unincorporated Areas), Fort Belknap Indian Reservation. Approximately 4.7 river miles upstream of Kennedy Road ...... + 2,360 Peoples Creek ...... At confluence with Milk River ...... + 2,297 Fort Belknap Indian Reserva- tion. Approximately 11.5 miles upstream of confluence with Milk + 2,339 River (approximately 2.8 miles upstream of Road Bridge). Peoples Creek-Split Flow ...... Approximately 1.2 river miles upstream of confluence with + 2,288 Fort Belknap Indian Reserva- South Dodson Canal. tion. Approximately 3.2 river miles upstream of Lodgepole Highway + 2,319
# Depth in feet above ground. * National Geodetic Vertical Datum. + North American Vertical Datum. ADDRESSES Blaine County Unincorporated Areas Maps are available for inspection at the County Courthouse, 400 Ohio Street, Chinook, Montana 59523. Fort Belknap Indian Reservation Maps are available for inspection at the Tribal Office Building, Highway 2 & Route 66, Harlem, Montana 59526.
Snohomish County, Washington and Incorporated Areas Docket No.: FEMA–B–7442
Ebey Slough ...... Approximately 1.2 miles downstream of Interstate Highway 5 .. * 8 Snohomish County (Unincor- porated Areas), City of Marysville. At divergence from Snohomish River ...... * 19 Ebey-Steamboat Slough Con- At confluence with Steamboat Slough ...... * 12 Snohomish County (Unincor- nector. porated Areas). At divergence from Ebey Slough ...... * 12
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* Elevation in feet (NGVD) + Elevation in Flooding source(s) Location of referenced elevation feet Communities (NAVD) affected # Depth in feet above ground Modified
Marshland ...... At Burlington Northern Railroad tracks ...... * 20 Snohomish County (Unincor- porated Areas) and City of Everett. At divergence from Snohomish River ...... * 23 Snohomish River ...... Approximately 1.2 miles downstream of State Highway 529 ..... * 8 Snohomish County (Unincor- porated Areas), City of Mon- roe, City of Snohomish, and City of Everett. At confluence with Skykomish and Snoqualmie Rivers ...... * 41 Steamboat Slough ...... Approximately 2.08 miles downstream of Burlington Northern * 8 Snohomish County (Unincor- Railroad bridge. porated Areas), City of Marysville, and City of Ever- ett. At divergence from Snohomish River ...... * 13 Union Slough ...... Approximately 0.24 miles downstream of Burlington Northern * 8 Snohomish County (Unincor- Railroad bridge. porated Areas) and City of Everett. Approximately 1,270 feet downstream of divergence from Sno- * 12 homish River.
# Depth in feet above ground. * National Geodetic Vertical Datum. + North American Vertical Datum. ADDRESSES Unincorporated Areas of Snohomish County Maps are available for inspection at the Snohomish County Planning Department, 3000 Rockefeller Avenue, Everett, Washington 98201. City of Monroe Maps are available for inspection at the Engineering Department, City Hall, 806 West Main Street, Monroe, Washington 98272. City of Marysville Maps are available for inspection at the Public Works Department, 80 Columbia Avenue, Marysville, Washington 98270. City of Everett Maps are available for inspection at the Public Works Department, 3200 Cedar Street, Everett, Washington 98201. City of Snohomish Maps are available for inspection at the Engineering Department, 116 Union Avenue, Snohomish, Washington 98290.
(Catalog of Federal Domestic Assistance No. DEPARTMENT OF HOMELAND each community is required either to 83.100, ‘‘Flood Insurance.’’) SECURITY adopt or to show evidence of being Dated: October 18, 2006. already in effect in order to qualify or Federal Emergency Management remain qualified for participation in the David I. Maurstad, Agency National Flood Insurance Program Director, Mitigation Division, Federal (NFIP). Emergency Management Agency, Department 44 CFR Part 67 of Homeland Security. EFFECTIVE DATE: The date of issuance of [FR Doc. E6–18306 Filed 10–31–06; 8:45 am] Final Flood Elevation Determinations the Flood Insurance Rate Map (FIRM) showing BFEs and modified BFEs for BILLING CODE 9110–12–P AGENCY: Federal Emergency each community. This date may be Management Agency (FEMA), obtained by contacting the office where Department of Homeland Security, the maps are available for inspection as Mitigation Division. indicated on the table below. ACTION: Final rule. ADDRESSES: The final BFEs for each community are available for inspection SUMMARY: Base (1% annual chance) at the office of the Chief Executive Flood Elevations (BFEs) and modified Officer of each community. The BFEs are made final for the respective addresses are listed in the communities listed below. The BFEs table below. and modified BFEs are the basis for the FOR FURTHER INFORMATION CONTACT: floodplain management measures that William R. Blanton, Jr., CFM, Acting
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Section Chief, Engineering Management available at the address cited below for federalism implications under Executive Section, Mitigation Division, 500 C each community. The BFEs and Order 13132. Street, SW., Washington, DC 20472, modified BFEs are made final in the Executive Order 12988, Civil Justice (202) 646–3151. communities listed below. Elevations at Reform. This rule meets the applicable SUPPLEMENTARY INFORMATION: FEMA selected locations in each community standards of Executive Order 12988. are shown. makes the final determinations listed List of Subjects in 44 CFR Part 67 below for the modified BFEs for each NATIONAL ENVIRONMENTAL POLICY ACT. community listed. These modified This rule is categorically excluded from Administrative practice and elevations have been published in the requirements of 44 CFR part 10, procedure, flood insurance, reporting newspapers of local circulation and Environmental Consideration. No and recordkeeping requirements. ninety (90) days have elapsed since that environmental impact assessment has I Accordingly, 44 CFR part 67 is publication. The Mitigation Division been prepared. amended as follows: Director has resolved any appeals Regulatory Flexibility Act. As flood resulting from this notification. elevation determinations are not within PART 67—[AMENDED] This final rule is issued in accordance the scope of the Regulatory Flexibility I 1. The authority citation for part 67 with Section 110 of the Flood Disaster Act, 5 U.S.C. 601–612, a regulatory continues to read as follows: Protection Act of 1973, 42 U.S.C. 4104, flexibility analysis is not required. Authority: 42 U.S.C. 4001 et seq.; and 44 CFR part 67. Regulatory Classification. This final Reorganization Plan No. 3 of 1978, 3 CFR, The Agency has developed criteria for rule is not a significant regulatory action 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, floodplain management in floodprone under the criteria of Section 3(f) of 3 CFR, 1979 Comp., p. 376. areas in accordance with 44 CFR part Executive Order 12866 of September 30, 60. 1993, Regulatory Planning and Review, § 67.11 [Amended] Interested lessees and owners of real 58 FR 51735. I 2. The tables published under the property are encouraged to review the Executive Order 13132, Federalism. authority of § 67.11 are amended as proof Flood Insurance Study and FIRM This rule involves no policies that have follows:
# Depth in feet above ground. * Elevation in feet State City/town/county Source of flooding Location (NGVD) + Elevation in feet (NAVD) Modified
Healdsburg, California Docket No.: FEMA–B–7453
. California ...... City of Healdsburg ...... Russian River ...... Just upstream of U.S. Highway 101 ...... *90 Approximately 6,750 feet Railroad ...... *104 Russian River-Split Flow .. At the Convergence with Russian River .. *90 At the Divergence from Russian River ..... *99
# Depth in feet above ground. * National Geodetic Vertical Datum. + North American Vertical Datum. ADDRESSES City of Healdsburg Maps are available for inspection at City of Healdsburg, City Hall, 401 Grove Street, Healdsburg, California 95448.
Sonoma County, California Docket No.: FEMA–B–7453
California ...... Sonoma County ...... Russian River ...... At confluence with Dry Creek ...... *85 At U.S. Highway 101 ...... *90
# Depth in feet above ground. * National Geodetic Vertical Datum. + North American Vertical Datum. ADDRESSES Sonoma County Unincorporated Areas Maps are available for inspection at Permit and Resource Management Department, 2550 Ventura Avenue, Santa Rosa, California 95403.
Silt, Colorado Docket No.: FEMA–B–7454
Colorado ...... Town of Silt ...... Colorado River ...... Approximately 1100 feet upstream of I– *5,404 70. Just downstream of County Road 311 ..... *5,428
# Depth in feet above ground. * National Geodetic Vertical Datum.
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# Depth in feet above ground. * Elevation in feet State City/town/county Source of flooding Location (NGVD) + Elevation in feet (NAVD) Modified
+ North American Vertical Datum. ADDRESSES Town of Silt Maps are available for inspection at the Town Hall, 231 North 7th Street, Silt, Colorado 81652.
Knox County, Kentucky Docket No.: FEMA–B–7454
Kentucky ...... Knox County...... Cumberland River ...... Approximately 6,410 feet southwest of +966 the intersection of Goodin Creek Road and Kentucky State Highway 11. Approximately 4,495 feet upstream of the +1,014 confluence of Elys Branch.
# Depth in feet above ground. * National Geodetic Vertical Datum. + North American Vertical Datum. ADDRESSES Knox County Unincorporated Areas Maps are available for inspection at Community Map Repository, County Courthouse, 104 Court Square, Barbourville, Kentucky 40906. City of Barbourville Maps are available for inspection at Community Map Repository, County Courthouse, 104 Court Square, Barbourville, Kentucky 40906.
Williamsburg, Kentucky Docket No.: FEMA–B–7454
Kentucky ...... City of Williamsburg ..... Cumberland River ...... Just downstream of State Route 204 ...... +906 Approximately 4,570 feet upstream from +966 Goodin Creek.
# Depth in feet above ground. * National Geodetic Vertical Datum. + North American Vertical Datum. ADDRESSES Whitley County Unincorporated Areas Maps are available for inspection at Community Map Repository, Whitley County Courthouse, 310 Main Street, Williamsburg, Kentucky 40769. City of Williamsburg Maps are available for inspection at Community Map Repository, Williamsburg City Hall, office of Mayor, 116 North Second Street, Williams- burg, Kentucky 40769.
Eagle Lake, Maine Docket No.: FEMA–B–7454
Maine ...... Town of Eagle Lake ..... Eagle Lake ...... Entire Shoreline at Eagle Lake within the +581 corporate limits.
# Depth in feet above ground. * National Geodetic Vertical Datum. + North American Vertical Datum. ADDRESSES Town of Eagle Lake Maps are available for inspection at the 36 Devoe Brook Road, Eagle Lake, Maine 04739.
Milan, New Hampshire Docket No.: FEMA–B–7454
New Hampshire ...... Town of Milan...... Androscoggin River ...... Approximately 7,800 feet of Halt Road +1,109 extended. Approximately 1,500 feet upstream of +1,114 Owens Road extended.
# Depth in feet above ground. * National Geodetic Vertical Datum. + North American Vertical Datum. ADDRESSES Town of Milan
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# Depth in feet above ground. * Elevation in feet State City/town/county Source of flooding Location (NGVD) + Elevation in feet (NAVD) Modified
Maps are available for inspection at the Town Hall, 20 Bridge Street, Milan, New Hampshire 03588.
Lincoln County, Montana Docket No.: FEMA–B–7454
Montana ...... Lincoln County ...... Big Cherry Creek ...... At the confluence with Libby Creek ...... *2,152 Approximately 3,600 feet upstream of *2,358 Granite Creek Road. Libby Creek ...... Just upstream of railroad crossing prior to *2,065 confluence with Kootenai River. Approximately 3,500 feet upstream of *2,773 U.S. Route 2.
# Depth in feet above ground. * National Geodetic Vertical Datum. + North American Vertical Datum. ADDRESSES Lincoln County Unincorporated Areas Maps are available for inspection at the County Courthouse, 512 California Avenue, Libby, Montana 59923.
Wakefield, New Hampshire Docket No.: FEMA–B–7454
New Hampshire ...... Town of Wakefield ...... Belleau Lake ...... At Moose Road ...... +584 Entire Shoreline of Belleau Lake above +584 Woodman Lake.
# Depth in feet above ground. * National Geodetic Vertical Datum. + North American Vertical Datum. ADDRESSES Town of Wakefield Maps are available for inspection at the Map Repository, Town of Wakefield, Assessor’s Office, 2 High Street, Sanbornville, New Hampshire 03872.
Granville, Pennsylvania Docket No.: FEMA–B–7454
Pennsylvania ...... Township of Granville .. Strodes Run ...... Approximately at the confluence with Ju- +490 niata River. Approximately 55 feet upstream of Fer- +621 guson Valley Road.
# Depth in feet above ground. * National Geodetic Vertical Datum. + North American Vertical Datum. ADDRESSES Township of Granville Maps are available for inspection at the Granville Municipal Offices, 100 Helen Street Lewistown, Pennsylvania 17044.
Oliver, Pennsylvania Docket No.: FEMA–B–7454
Pennsylvania ...... Township of Oliver ...... Strodes Run ...... Approximately at the confluence with Ju- +490 niata River. Approximately 55 feet upstream of Fer- +621 guson Valley Road.
# Depth in feet above ground. * National Geodetic Vertical Datum. + North American Vertical Datum. ADDRESSES Township of Oliver Maps are available for inspection at Municipal Offices, 274 Lockport Road, Lewistown, Pennsylvania 17044.
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# Depth in feet above ground. * Elevation in feet State City/town/county Source of flooding Location (NGVD) + Elevation in feet (NAVD) Modified
Lewis County, Washington Docket No.: FEMA 7442
Washington ...... Lewis County ...... Newaukum River ...... Confluence with Chehalis River ...... *183 Confluence of North and South Fork *268 Newaukum River. Washington ...... Lewis County ...... Newaukum River Overflow Approximately 750 feet upstream of Rice *185 Road. Approximately 2.1 miles upstream of Rice *199 Road. Washington ...... City of Chehalis ...... Newaukum River ...... Approximately 500 feet upstream of Rail- *184 road. Approximately 3,650 feet upstream of *185 Railroad. Washington ...... City of Chehalis ...... Newaukum River Overflow Approximately 1,200 feet downstream of *185 Rice Road. Approximately 750 feet upstream of Rice *185 Road. Washington ...... City of Napavine ...... Newaukum River ...... Approximately 2,000 feet downstream of *224 Rush Road. Approximately 100 feet upstream of *240 Kirkland Road.
# Depth in feet above ground. * National Geodetic Vertical Datum. + North American Vertical Datum. ADDRESSES Lewis County Unincorporated Areas Maps are available for inspection at Lewis County Public Works Department, 350 North Market Boulevard, Chehalis, Washington 98532. City of Chehalis Maps are available for inspection at 1321 South Market Boulevard, Chehalis, Washington 98532. City of Napavine Maps are available for inspection at 214 Second Avenue Northeast, Napavine, Washington 98565.
Ohio County, West Virginia Docket No.: FEMA B–7454
West Virginia ...... Ohio County ...... Little Wheeling Creek ...... Approximately 475 feet upstream of Mid- *718 dle Wheeling Creek Road. Approximately 158 feet upstream of U.S. *782 Route 40.
# Depth in feet above ground. * National Geodetic Vertical Datum. + North American Vertical Datum. ADDRESSES Ohio County Unincorporated areas Maps are available for inspection at the City County Building, 1500 Chapline Street, Room 215, Wheeling, West Virginia 26003.
* Elevation in feet (NGVD) + Elevation in feet Flooding source(s) Location of referenced elevation (NAVD) Communities # Depth in feet affected above ground. Modified
Morgan County, Alabama and Incorporated Areas Docket No.: FEMA D–7606
Bakers Creek ...... Approximately 1,600 feet upstream of the confluence with +558 Morgan County (Unincor- the Tennessee River. porated Areas), City of De- catur. Approximately 100 feet downstream of West Morgan Road +621 Tributary to Bakers Creek ..... At the confluence with Bakers Creek ...... +595 Morgan County (Unincor- porated Areas), City of De- catur.
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* Elevation in feet (NGVD) + Elevation in feet Flooding source(s) Location of referenced elevation (NAVD) Communities # Depth in feet affected above ground. Modified
Approximately 150 feet upstream of Cumberland Avenue +611 Southwest. Betty Rye Branch ...... Approximately 0.8 mile upstream of the confluence with the +559 Morgan County (Unincor- Tennessee River. porated Areas), City of De- catur. Approximately 150 feet upstream of Bedford Drive South- +607 west. Black Branch ...... Just upstream of Point Mallard Drive (8th Street southeast) +562 Morgan County (Unincor- porated Areas), City of De- catur. Approximately 0.2 mile upstream of Regency Boulevard ..... +566 Brush Creek ...... Approximately 650 feet downstream of Brookmead Road ... +562 City of Decatur. Approximately 0.2 mile upstream of Royal Drive ...... +568 Chapel Hill Branch ...... Approximately 0.4 mile upstream of the confluence with +572 Morgan County (Unincor- West Flint Creek. porated Areas), City of De- catur. Approximately 2.0 miles upstream of the confluence with +594 West Flint Creek. Clark Spring Branch ...... Approximately 800 feet upstream of the confluence with +568 City of Decatur. Brush Creek. Approximately 400 feet upstream of Asheville Drive South- +641 west. Clark Spring Branch Trib- At the confluence with Clark Spring Branch ...... +587 City of Decatur. utary. Approximately 300 feet upstream of Danville Park Drive +613 Southwest. Dry Branch ...... Approximately 0.5 mile downstream of Washington Street .. +559 Morgan County (Unincor- porated Areas), City of De- catur. Approximately 900 feet upstream of Runnymead Avenue +604 Southwest. North Dinsmore ...... Just downstream of U.S. Highway 31 ...... +564 City of Decatur. Approximately 100 feet upstream of Cedar Lake Road ...... +575 South Dinsmore Middle Approximately 50 feet downstream of U.S. Highway 31 ...... +564 Morgan County (Unincor- Tributary. porated Areas), City of De- catur. Approximately 250 feet upstream of Spring Avenue ...... +610 South Dinsmore North At the confluence with South Dinsmore Middle Tributary ..... +567 City of Decatur. Tributary. Approximately 0.5 mile upstream of Lenwood Road ...... +570 South Dinsmore South At the confluence with South Dinsmore Middle Tributary ..... +571 Morgan County (Unincor- Tributary. porated Areas), City of De- catur. Approximately 1,600 feet upstream of Central Avenue ...... +576
# Depth in feet above ground. * National Geodetic Vertical Datum. + North American Vertical Datum. ADDRESSES City of Decatur Maps available for inspection at the City of Decatur Building Department, 403 Lee Street Northeast, Fourth floor, Decatur, Alabama 35603. Morgan County Unincorporated Areas Maps available for inspection at the Morgan County Engineering Department, 580 Shull Road, Northeast, Hartselle, Alabama 35601.
Harlan County, Kentucky and Incorporated Areas Docket No.: FEMA B–7454
Catron Creek ...... At the confluence of Catron Creek with Martins Fork ...... +1,188 Harlan County (Unincor- porated Areas) City of Har- lan. Approximately 270 feet upstream of the confluence of +1,472 Lower Double Branch. Clover Fork ...... At the confluence of Clover Fork with Cumberland River .... +1,178 Harlan County (Unincor- porated Areas) City of Ev- arts, City of Harlan. Approximately 1,140 feet upstream of the confluence of +1,722 Breedens Creek.
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* Elevation in feet (NGVD) + Elevation in feet Flooding source(s) Location of referenced elevation (NAVD) Communities # Depth in feet affected above ground. Modified
Cloverlick Creek ...... At the confluence of Cloverlick Creek with Poor Fork ...... +1,427 City of Loyall Harlan County (Unincorporated Areas) City of Cumberland. Approximately 45 feet upstream of the confluence of Gilley +1,453 Branch. Cumberland River ...... Approximately 1,440 feet downstream of the confluence of +1,098 Harlan County (Uninc. Areas) Jerry’s Branch. City of Loyall, City of Wallins Creek. At the confluence of Clover Fork and Poor Fork ...... +1,178 Looney Creek ...... At the confluence of Looney Creek with Poor Fork ...... +1,437 Harlan County (Uninc. Areas) City of Benham, City of Cumberland, City of Lynch. Approximately 735 feet downstream of the confluence of +1,884 Long Rock Branch. Martins Fork ...... At the confluence of Martins Fork with Clover Fork ...... +1,181 Harlan County (Unincor- porated Areas) City of Har- lan. Approximately 2,990 feet upstream of the confluence of +1,264 Raccoon Branch. Poor Fork ...... At the confluence of Poor Fork with Cumberland River ...... +1,178 Harlan County (Unincor- porated Areas) City of Cumberland, City of Loyall. Approximately 3,670 feet upstream of the confluence of +1,522 Coldiron Branch. Wallins Creek ...... At the confluence of Wallins Creek with Cumberland River +1,133 Harlan County (Unincor- porated Areas) City of Wallins Creek. Approximately 175 feet upstream of the confluence of +1,154 Brock Branch. Yocum Creek ...... At the confluence of Yocum Creek with Clover Fork ...... +1,300 Harlan County (Unincor- porated Areas). Approximately 575 feet downstream of the confluence of +1,519 Reds Creek.
# Depth in feet above ground. * National Geodetic Vertical Datum. + North American Vertical Datum. ADDRESSES Harlan County (Unincorporated Areas) Maps are available for inspection at the County Courthouse, Harlan, Kentucky 40871. City of Benham Maps are available for inspection at the County Courthouse, Harlan, Kentucky 40871. City of Cumberland Maps are available for inspection at the County Courthouse, Harlan, Kentucky 40871. City of Evarts Maps are available for inspection at the County Courthouse, Harlan, Kentucky 40871. City of Harlan Maps are available for inspection at the County Courthouse, Harlan, Kentucky 40871. City of Loyall Maps are available for inspection at the County Courthouse, Harlan, Kentucky 40871. City of Lynch Maps are available for inspection at the County Courthouse, Harlan, Kentucky 40871. City of Wallins Creek Maps are available for inspection at the County Courthouse, Harlan, Kentucky 40871.
Barry County, Missouri and Incorporated Areas Docket Nos.: FEMA B–7453 and B–7454
Unnamed Tributary No. 1 ...... Just upstream of the confluence with Flat Creek ...... +1,309 Barry County (Unincorporated Areas) and City of Cassville. Approximately 2,325 feet upstream of Highway 248 ...... +1,320 Town Branch ...... Approximately 750 feet downstream of Main Street ...... +1,308 City of Cassville. Approximately 2,950 feet upstream of County House Road +1,350 Brock Branch ...... Just upstream of the confluence with Flat Creek ...... +1,310 City of Cassville. Approximately 1,535 feet upstream of the confluence with +1,319 Flat Creek. Hawk Branch ...... Approximately 1,220 feet downstream of Presley Drive ...... +1,321 City of Cassville.
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* Elevation in feet (NGVD) + Elevation in feet Flooding source(s) Location of referenced elevation (NAVD) Communities # Depth in feet affected above ground. Modified
Approximately 160 feet upstream of Oak Hill Drive ...... +1,338 Flat Creek ...... Approximately 1,500 feet downstream of Thirteenth Street +1,298 Barry County (Unincorporated Areas) and City of Cassville. Approximately 3,100 feet upstream of County Bridge ...... +1,320 Boys Drain ...... Just upstream of the confluence with Unnamed Tributary ... +1,298 City of Monett. Approximately 220 feet upstream of the Sixth Street ...... +1,338 Chapel Drain ...... Just upstream of the confluence with Kelly Creek ...... +1,328 Barry County (Unincorporated Areas) and City of Monett. At the intersection of Chapel Drain and Cleveland Street +1,334 (Highway 60). Chapel Drain ...... At confluence with Kelly Creek ...... +1,328 City of Monett. Just upstream of Chapel Drive ...... +1,336 Clear Creek ...... Approximately 850 feet downstream of the confluence with +1,245 Barry County (Unincorporated Unnamed Tributary. Areas) and City of Monett. Approximately 225 feet upstream of Farm Road 1090 ...... +1,345 Kelly Creek ...... Approximately 300 feet downstream of Diary Street ...... +1,290 Barry County (Unincorporated Areas) and City of Monett. Approximately 4,850 feet upstream of Chapel Drive ...... +1,353 Kelly Creek Tributary ...... Just upstream of the confluence with Kelly Creek ...... +1,303 City of Monett. Approximately 3,700 feet upstream of Cleveland Street ...... +1,366 Tributary # 1 to Unnamed At confluence with Unnamed Tributary ...... +1,326 City of Monett. Tributary to Clear Creek. Approximately 750 feet upstream of confluence with +1,333 Unnamed Tributary. Unnamed Tributary ...... Just upstream of the confluence with Clear Creek ...... +1,250 Barry County (Unincorporated Areas) and City of Monett. Approximately 1,440 feet upstream of Highway 37 ...... +1,350 Unnamed Tributary to Clear At Lawrence County—Barry County Boundary...... +1,285 City of Monett. Creek. Approximately 1,075 feet upstream of Missouri State High- +1,377 way ‘‘H’’ and just downstream of Farm Road 2330..
# Depth in feet above ground. * National Geodetic Vertical Datum. + North American Vertical Datum. ADDRESSES Barry County (Unincorporated Areas) Missouri Maps are available for inspection at the County Courthouse, 700 Main Street, Cassville, Missouri 65625. City of Cassville Maps are available for inspection at City Hall, 300 Main Street, Cassville, Missouri 65625. City of Monett Maps are available for inspection at City Hall, 217 Fifth Street, Monett, Missouri 65708.
(Catalog of Federal Domestic Assistance No. DEPARTMENT OF HOMELAND and modified BFEs are the basis for the 83.100, ‘‘Flood Insurance.’’) SECURITY floodplain management measures that Dated: October 18, 2006. each community is required either to Federal Emergency Management adopt or to show evidence of being David I. Maurstad, Agency already in effect in order to qualify or Director, Mitigation Division, Federal remain qualified for participation in the Emergency Management Agency, Department 44 CFR Part 67 National Flood Insurance Program of Homeland Security. (NFIP). [FR Doc. E6–18308 Filed 10–31–06; 8:45 am] Final Flood Elevation Determinations BILLING CODE 9110–12–P EFFECTIVE DATES: The date of issuance of AGENCY: Federal Emergency the Flood Insurance Rate Map (FIRM) Management Agency (FEMA), showing BFEs and modified BFEs for Department of Homeland Security, each community. This date may be Mitigation Division. obtained by contacting the office where ACTION: Final rule. the maps are available for inspection as indicated on the table below. SUMMARY: Base (1% annual chance) ADDRESSES: The final BFEs for each Flood Elevations (BFEs) and modified community are available for inspection BFEs are made final for the at the office of the Chief Executive communities listed below. The BFEs Officer of each community. The
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respective addresses are listed in the proof Flood Insurance Study and FIRM federalism implications under Executive table below. available at the address cited below for Order 13132. FOR FURTHER INFORMATION CONTACT: each community. The BFEs and Executive Order 12988, Civil Justice William R. Blanton, Jr., Engineering modified BFEs are made final in the Reform. This rule meets the applicable Management Section, Mitigation communities listed below. Elevations at standards of Executive Order 12988. Division, 500 C Street SW., Washington, selected locations in each community DC 20472, (202) 646–3151. are shown. List of Subjects in 44 CFR Part 67 SUPPLEMENTARY INFORMATION: FEMA National Environmental Policy Act. Administrative practice and makes the final determinations listed This rule is categorically excluded from procedure, flood insurance, reporting below for the modified BFEs for each the requirements of 44 CFR Part 10, and recordkeeping requirements. community listed. These modified Environmental Consideration. No elevations have been published in environmental impact assessment has I Accordingly, 44 CFR Part 67 is newspapers of local circulation and been prepared. amended as follows: ninety (90) days have elapsed since that Regulatory Flexibility Act. As flood PART 67—[AMENDED] publication. The Mitigation Division elevation determinations are not within Director has resolved any appeals the scope of the Regulatory Flexibility I 1. The authority citation for Part 67 resulting from this notification. Act, 5 U.S.C. 601–612, a regulatory continues to read as follows: This final rule is issued in accordance flexibility analysis is not required. with Section 110 of the Flood Disaster Authority: 42 U.S.C. 4001 et seq.; Protection Act of 1973, 42 U.S.C. 4104, Regulatory Classification. This final Reorganization Plan No. 3 of 1978, 3 CFR, and 44 CFR Part 67. rule is not a significant regulatory action 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, The Agency has developed criteria for under the criteria of Section 3(f) of 3 CFR, 1979 Comp., p. 376. Executive Order 12866 of September 30, floodplain management in floodprone § 67.11 [Amended] areas in accordance with 44 CFR Part 1993, Regulatory Planning and Review, 60. 58 FR 51735. I 2. The tables published under the Interested lessees and owners of real Executive Order 13132, Federalism. authority of § 67.11 are amended as property are encouraged to review the This rule involves no policies that have follows:
#Depth in feet above ground. *Elevation in feet State City/town/county Source of flooding Location (NGVD) +Elevation in feet (NAVD) Modified
City of Omaha, Douglas County, Nebraska Docket No.: FEMA–P7915
NE ...... City of Omaha ...... Candlewood Lake ...... Entire Shoreline ...... +1,096
# Depth in feet above ground. National Geodetic Vertical Datum. North American Vertical Datum. ADDRESSES City of Omaha, Douglas County, Nebraska Maps are available for inspection at City, 1819 Farnam Street, Omaha, Nebraska 68183.
City of Lufkin, Angelina County, Texas Docket No.: FEMA–P–7699
TX ...... City of Lufkin ...... Biloxi Creek North Tribu- Approximately 2,860 feet downstream of +306 tary. State Highway 287. Approximately 210 feet upstream of State +329 Highway 287. TX ...... City of Lufkin ...... Biloxi Creek South Tribu- Approximately 640 feet downstream of +303 tary. Lemans Drive. Approximately 1,660 feet upstream of +319 Lemans Drive. TX ...... City of Lufkin ...... Cedar Creek ...... At Gobblers Knob Road ...... +238 Approximately 100 feet upstream of +299 Union Pacific Railroad. TX ...... City of Lufkin ...... Cedar Creek North Tribu- At confluence with Cedar Creek ...... +276 tary. Approximately 50 feet upstream of Lotus +286 Lane. TX ...... City of Lufkin ...... Cedar Creek South Tribu- At confluence with Cedar Creek ...... +287 tary. Approximately 1,350 feet upstream of +253 Berry Road. TX ...... City of Lufkin ...... Cedar Creek Tributary 3 ... At confluence with Cedar Creek ...... +266 Approximately 80 feet upstream of Live +240 Oak Lane.
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#Depth in feet above ground. *Elevation in feet State City/town/county Source of flooding Location (NGVD) +Elevation in feet (NAVD) Modified
TX ...... City of Lufkin ...... One Eye Creek ...... Approximately 2,120 feet downstream of +309 Bartmess Drive. Approximately 3,900 feet upstream of +289 Bartmess Drive. TX ...... City of Lufkin ...... Shirley Creek ...... Approximately 7,350 feet upstream of the +232 confluence with Paper Mill Creek. Approximately 50 feet upstream of Tren- +297 ton Street. TX ...... City of Lufkin ...... Shirley Creek Tributary 2 At the confluence with Shirley Creek ...... +260 Approximately 1,600 feet upstream of +310 State Highway 287. TX ...... City of Lufkin ...... Shirley Creek Tributary 2 At confluence with Shirley Creek Tribu- +277 East Branch. tary 2. Approximately 970 feet upstream of Free- +297 man Street.
# Depth in feet above ground. National Geodetic Vertical Datum. North American Vertical Datum. ADDRESSES City of Lufkin, Angelina County, Texas Maps are available for inspection at City Hall, 300 Shepherd Street, Lufkin, Texas 75902.
(Catalog of Federal Domestic Assistance No. would not result in a preferential Federal Communications Commission. 83.100, ‘‘Flood Insurance.’’) arrangement of allotments. John A. Karousos, Dated: October 18, 2006. Assistant Chief, Audio Division, Media FOR FURTHER INFORMATION CONTACT: Bureau. David I. Maurstad, Helen McLean, Media Bureau, (202) [FR Doc. E6–18316 Filed 10–31–06; 8:45 am] Director, Mitigation Division, Federal 418–2738. Emergency Management Agency, Department BILLING CODE 6712–01–P of Homeland Security. SUPPLEMENTARY INFORMATION: This is a [FR Doc. E6–18307 Filed 10–31–06; 8:45 am] synopsis of the Commission’s BILLING CODE 9110–12–P Memorandum Opinion and Order, MB FEDERAL COMMUNICATIONS Docket No. 05–146, adopted October 11, COMMISSION 2006, and released October 13, 2006. 47 CFR Part 73 FEDERAL COMMUNICATIONS The full text of this Commission COMMISSION decision is available for inspection and [DA 06–2027; MB Docket No. 06–77; RM– copying during regular business hours 11324; RM–11334] 47 CFR Part 73 at the FCC’s Reference Information Center, Portals II, 445 Twelfth Street, Radio Broadcasting Services; Belle [DA 06–2029; MB Docket No. 05–146; RM– SW., Room CY–A257, Washington, DC Meade, TN; Burkesville, KY; Edinburgh, IN; Goodlettsville, 10798] 20554. The complete text of this Greensburg, and Henderson, TN; decision may also be purchased from Radio Broadcasting Services; Caliente Hodgenville, KY; Hope, IN; Horse Cave, the Commission’s duplicating and Moapa, NV KY; Lebanon, Lebanon Junction, contractor, Best Copy and Printing, Inc., Lewisport, Louisville, Lyndon, KY; AGENCY: Federal Communications 445 12th Street, SW., Room CY–B402, Manchester and Millersville, TN; New Commission. Washington, DC 20554, telephone 1– Haven, Springfield and St. Matthews, ACTION: Final rule, dismissal of petition 800–378–3160 or http:// KY; Tell City and Versailles, IN for reconsideration. www.BCPIWEB.com. AGENCY: This document is not subject to the Federal Communications SUMMARY: This document dismisses a Commission. Congressional Review Act. The petition for reconsideration filed by ACTION: Final rule. Aurora Media, LLC., because it was Commission, is, therefore, not required untimely filed. Aurora requested to submit a copy of this Memorandum SUMMARY: In response to a proposal filed reconsideration of a Report and Order Opinion and Order to the Government jointly by Elizabethtown CBC, CBC of that denied its petition for rule making Accountability Office pursuant to the Marion County, Inc., Washington to reallot Channel 233C from Caliente, Congressional Review Act, see 5 U.S.C. County CBC, Inc., Newberry Nevada to Moapa, Nevada, and to 801(a)(1)(A) because the aforementioned Broadcasting, Inc. and Cumulus modify the construction permit petition for reconsideration was Licensing LLC and a counterproposal authorization to reflect the change of dismissed. filed by CXR Holdings, LLC in this community. The proposed change of proceeding, this document granted community was denied because it multiple channel substitutions and
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changes of community of license in and modifies the license of Station Washington, D.C. 20554. The complete Indiana, Kentucky and Tennessee. WLME to specify operation on Channel text of this decision may also be Specifically, this document substitutes 274A at Lewisport. To replace the loss purchased from the Commission’s copy Channel 294C3 for Channel 294A at of the sole local service from St. contractor, Best Copying and Printing, Belle Meade, Tennessee, reallots Matthews, it reallots Channel 295B from Inc. 445 12th Street, SW., Room CY– Channel 294C3 to Millersville, Louisville, Kentucky, to St. Matthews B402, Washington, DC 20554, telephone Tennessee, and modifies the license of and modifies the license of Station 1–800–378–3160 or http:// Station WNFN to specify operation on WVEZ to specify St. Matthews as the www.BCPIWEB.com. The Commission Channel 294C3 at Millersville. In order community of license. In order to allot will send a copy of this Report and to accommodate Channel 294C3 at Channel 276C2 at Lyndon, it substitutes Order in a report to Congress and the Millersville, it substitutes Channel 293A Channel 289A for Channel 276A at Government Accountability Office for Channel 294A at Horse Cave, Greensburg, Kentucky, and modifies the pursuant to the Congressional Review Kentucky, and modifies the license of license of Station WGRK-FM to specify Act, see 5 U.S.C. 801(a)(1)(A). operation on Channel 289A. The Station WHHT to pecify operation on List of Subjects in 47 CFR Part 73 Channel 293A. It also substitutes reference coordinates for the Channel Channel 297A for Channel 292A at 294C3 allotment at Millersville, Radio, Radio broadcasting. Hodgenville, Kentucky, and modifies Tennessee, are 36–26–24 and 86–37–39. I As stated in the preamble, the Federal the license of Station WKMO to specify The reference coordinates for the Communications Commission amends operation on Channel 297A, and Channel 293A allotment at Horse Cave, 47 CFR part 73 as follows: substitutes Channel 257A for Channel Kentucky, are 37–13–57 and 85–52–06. 297A at Lebanon Junction, Kentucky, The reference coordinates for the PART 73—RADIO BROADCAST modifies the license of Station WTHX to Channel 297A allotment at Hodgenville, SERVICES specify operation on Channel 257A. In Kentucky, are 37–40–34 and 85–40–57. I 1. The authority citation for part 73 order to replace the loss of a sole local The reference coordinates for the continues to read as follows: service at Belle Meade, it reallots Channel 257A allotment at Lebanon Channel 246C2 from Goodlettsville, Junction, Kentucky, are 37–44–37 and Authority: 47 U.S.C. 154, 303, 334, 336. 85–38–52. The reference coordinates for Tennessee, to Belle Meade and modifies § 73.202 [Amended] the license of Station WRQQ to specify the Channel 246C2 allotment at Belle Belle Meade as the community of Meade, Tennessee, are 37–17–50 and I 2. Section 73.202(b), the Table of FM license. To avoid depriving 86–45–11. The reference coordinates for Allotments under Indiana, is amended Goodlettsville of its sole local service, it the Channel 221A allotment at by removing Channel 275A and by reallots Channel 221A from Goodlettsville, Tennessee, are 37–17–50 adding Channel 262A at Edinburgh, by Hendersonville, Tennessee, to and 86–45–11. The reference adding Hope, Channel 275A, by Goodlettsville, and modifies the license coordinates for the Channel 259C0 removing Tell City, Channel 275C3, and of Station WQQK to specify allotment at Hendersonville, Tennessee, by removing Versailles, Channel 276A. are 35–49–03 and 86–31–24. The Goodlettsville as the community of I 3. Section 73.202(b), the Table of FM reference coordinates for the Channel license. To avoid the loss of the sole Allotments under Kentucky, is amended 276C2 allotment at Lyndon, Kentucky, local service at Hendersonville, it by removing Channel 276A and by are 38–23–57 and 85–36–56. The substitutes Channel 259C0 for Channel adding Channel 289A at Greensburg, by reference coordinates for the Channel 259C at Manchester, Tennessee, reallots removing Channel 292A and by adding 275A allotment at Hope, Indiana, are Channel 259C0 to Hendersonville, and Channel 297A at Hodgenville, by 39–19–29 and 85–53–41. The reference modifies the license of Station WWTN removing Channel 294A and by adding coordinates for the Channel 262A to specify operation on Channel 259C0 Channel 293A at Horse Cave, by allotment at Edinburgh, Indiana, are 39– at Hendersonville. As requested in the removing Channel 297A and by adding 15–37 and 86–06–21. The reference CXR Holdings, LLC Counterproposal, it Channel 257A at Lebanon Junction, by coordinates for the Channel 274A substitutes Channel 276C2 for Channel adding Lewisport, Channel 274A, by allotment at Lewisport, Kentucky, are 276A at St. Matthews, Kentucky, removing Channel 295B at Louisville, 37–47–44 and 86–50–58. The reference reallots Channel 276C2 to Lyndon, by adding Lyndon, Channel 276C2, by coordinates for the Channel 295B Kentucky, and modifies the license of removing Channel 276A and by adding allotment at St. Matthews, Kentucky, are Station WRKA to specify operation on Channel 295B at St. Matthews. Channel 276C2 at Lyndon. In order to 38–22–19 and 85–49–33. The reference coordinates for the Channel 289A I 4. Section 73.202(b), the Table of FM accommodate the Channel 276C2 Allotments under Tennessee, is allotment at Lyndon, it substitutes allotment at Greensburg, Kentucky, are 37–14–09 and 85–27–56. With this amended by removing Channel 294A Channel 275A for Channel 276A at and by adding Channel 246C2 at Belle Versailles, Indiana, reallots Channel action, the proceeding is terminated. DATES: Effective November 27, 2006. Meade, by removing Channel 246C2 and 275A to Hope, Indiana, and by adding Channel 221A at FOR FURTHER INFORMATION CONTACT: modification of the license of Station Goodlettsville, by removing Channel Robert Hayne, Media Bureau (202) 418– WXCH to specify operation on Channel 221A and by adding Channel 259C0 at 2177. 275A at Hope. To allot Channel 275A to Hendersonville, and by removing Hope, it substitutes Channel 262A for SUPPLEMENTARY INFORMATION: This is a Manchester, Channel 259C and by Channel 275A at Edinburgh, Indiana, synopsis of the Report and Order in MB adding Millersville, Channel 294C3. and modifies the license of Station Docket No. 06–77, adopted October 11, WYGB to specify operation on Channel 2006, and released October 13, 2006. Federal Communications Commission. 262A. In order to accommodate the The full text of this decision is available John A. Karousos, allotment of Channel 276C2 to Lyndon, for inspection and copying during Assistant Chief, Audio Division, Media it substitutes Channel 274A for Channel normal business hours in the FCC Bureau. 275C3 at Tell City, Indiana, reallots Reference Information Center at Portals [FR Doc. E6–18404 Filed 10–31–06; 8:45 am] Channel 274A to Lewisport, Kentucky, ll, CY–A257, 445 12th Street, SW., BILLING CODE 6712–01–P
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FEDERAL COMMUNICATIONS petition because the application was released October 13, 2006. The full text COMMISSION filed after the rulemaking petition. of this Commission decision is available for inspection and copying during List of Subjects in 47 CFR Part 73 47 CFR Part 73 normal business hours in the FCC Radio, Radio broadcasting. [DA 06–2028; MB Docket No. 06–88; RM– Reference Information Center, Portals II, 11254] I As stated in the preamble, the Federal 445 12th Street, SW., Room CY–A257, Communications Commission amends Washington, DC, 20554. The complete Radio Broadcasting Services; 47 CFR part 73 as follows: text of this decision also may be Boonville and Wheatland, MO purchased from the Commission’s PART 73—RADIO BROADCAST duplicating contractor, Best Copy and AGENCY: Federal Communications SERVICES Printing, Inc., 445 12th Street, SW., Commission. I Room CY–B402, Washington, DC, ACTION: Final rule. 1. The authority for Part 73 continues to read as follows: 20554, (800) 378–3160, or via the company’s Web site, http:// SUMMARY: The staff grants a rulemaking Authority: 47 U.S.C. 154, 303, 334, 336. www.bcpiweb.com. The Commission petition filed by Bittersweet will send a copy of this Report and Broadcasting, Inc. to upgrade its Station § 73.202 [Amended] Order in a report to be sent to Congress KWJK–FM, Boonville, Missouri, from I 2. Section 73.202(b), the Table of FM and the Government Accountability Channel 226A to Channel 226C3. To Allotments under Missouri, is amended accommodate this upgrade, the Office pursuant to the Congressional by removing Channel 226A and by Review Act, see 5 U.S.C. 801(a)(1)(A). Commission substitutes Channel 272A adding Channel 226C3 at Boonville, and for vacant but applied for Channel 226A by removing Channel 226A and adding The Audio Division, at the request of at Wheatland, Missouri. With this Channel 272A at Wheatland. Mikel Chavez, allots Channel 293C2 at action, the proceeding is terminated. Powers, Oregon, as the community’s Federal Communications Commission. See SUPPLEMENTARY INFORMATION. first local aural transmission service. John A. Karousos, DATES: Effective November 27, 2006. See 70 FR 7221, February 11, 2005. Assistant Chief, Audio Division, Media Channel 293C2 can be allotted to FOR FURTHER INFORMATION CONTACT: Bureau. Powers in compliance with the Andrew J. Rhodes, Media Bureau, (202) [FR Doc. E6–18403 Filed 10–31–06; 8:45 am] 418–2180. Commission’s minimum distance BILLING CODE 6712–01–P separation requirements at city SUPPLEMENTARY INFORMATION: This is a reference coordinates. The reference synopsis of the Commission’s Report coordinates for Channel 293C2 at and Order, MB Docket No. 06–88, FEDERAL COMMUNICATIONS Powers are 42–53–01 North Latitude adopted October 11, 2006, and released COMMISSION and 124–04–19 West Longitude. October 13, 2006. The full text of this Commission decision is available for 47 CFR Part 73 The Audio Division, at the request of Jeraldine Anderson, allots Channel inspection and copying during normal [DA 06–2025; MB Docket No. 05–14; RM– business hours in the FCC Reference 11088; MB Docket No. 05–15; RM–11148] 292A at Zapata, Texas, as the Information Center (Room CY–A257), community’s fourth local FM 445 12th Street, SW., Washington, DC. Radio Broadcasting Services; Powers, transmission service. See 70 FR 7221, The complete text of this decision may OR, and Zapata, TX February 11, 2005. Channel 292A can be also be purchased from the allotted to Zapata in compliance with AGENCY: Federal Communications Commission’s copy contractor, Best the Commission’s minimum distance Commission. Copy and Printing, Inc., Portals II, 445 separation requirements with a site 12th Street, SW., Room CY–B402, ACTION: Final rule. restriction of 9.0 kilometers (5.6 mile) south to avoid a sort-spacing to the Washington, DC 20054, telephone 1– SUMMARY: This document allots Channel licensed site for Station KPSO–FM, 800–378–3160 or http:// 293C2 to Powers, Oregon, and Channel www.BCPIWEB.com. The Commission Channel 292A, Falfurria, Texas. The 292A to Zapata, Texas. It also makes an reference coordinates for Channel 292A will send a copy of the Report and editorial change in the FM Table of Order in this proceeding in a report to at Zapata are 26–49–57 North Latitude Allotments by removing Channel 228A and 99–14–25 West Longitude. Because be sent to Congress and the Government and adding Channel 228C3 at Zapata, Accountability Office pursuant to the Zapata is located within 320 kilometers Texas. See SUPPLEMENTARY INFORMATION, (199 miles) of the U.S.-Canadian border, Congressional Review Act, see 5 U.S.C. infra. 801(a)(1)(A). concurrence of the Mexican government DATES: Effective November 27, 2006. The reference coordinates for Channel has been obtained. The window period for filing 226C3 at Boonville, MO, are 38–51–17 applications for these channels will not List of Subjects in 47 CFR Part 73 NL and 92–38–17 WL. The reference be opened at this time. Instead, the issue coordinates for Channel 272 at of opening filing windows for these Radio, Radio broadcasting. Wheatland, MO, are 37–58–44 NL and allotments for auction will be addressed 93–26–49 WL. I As stated in the preamble, the Federal by the Commission in a subsequent The Report and Order also requires Communications Commission amends order. that World Radio Link, Inc., the 47 CFR Part 73 as follows: successful bidder in Auction No. 62 for FOR FURTHER INFORMATION CONTACT: Channel 226A at Wheatland, Missouri, Sharon P. McDonald, Media Bureau, PART 73—RADIO BROADCAST modify its application for Channel 226A (202) 418–2180. SERVICES at Wheatland to specify Channel 272A SUPPLEMENTARY INFORMATION: This is a I at a rule-compliant site. World Radio synopsis of the Commission’s Report 1. The authority citation for part 73 Link’s application is not entitled to cut- and Order, MB Docket Nos. 05–14 and continues to read as follows: off protection vis-a`-vis the rulemaking 05–15, adopted October 11, 2006, and Authority: 47 U.S.C. 154, 303, 334, 336.
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§ 73.202 [Amended] Printing, Inc., 445 12th Street, SW., Federal Communications Commission. I 2. Section 73.202(b), the Table of FM Room CY–B402, Washington, DC, John A. Karousos, Allotments under Oregon, is amended 20554, telephone 1–800–378–3160 or Assistant Chief, Audio Division, Media by adding Powers, Channel 293C2. http://www.BCPIWEB.com. The Bureau. I 3. Section 73.202(b), the Table of FM Commission will not send a copy of the [FR Doc. E6–18315 Filed 10–31–06; 8:45 am] Allotments under Texas, is amended by Report & Order in this proceeding BILLING CODE 6712–01–P removing Channel 228A, and adding pursuant to the Congressional Review Channels 228C3 and 292A at Zapata. Act, see 5 U.S.C. 801(a)(1)(A), because the adopted rules are rules of particular FEDERAL COMMUNICATIONS Federal Communications Commission. applicability. COMMISSION John A. Karousos, Assistant Chief, Audio Division, Media List of Subjects in 47 CFR Part 73 47 CFR Part 73 Bureau. Radio, Radio broadcasting. [DA 06–2022; MB Docket No. 04–409; RM– [FR Doc. E6–18402 Filed 10–31–06; 8:45 am] 11108; RM–11234] BILLING CODE 6712–01–P I As stated in the preamble, the Federal Communications Commission amends Radio Broadcasting Services; Chester, 47 CFR part as follows: VA; Fruitland, MD; Lakeside, VA; Port FEDERAL COMMUNICATIONS Norris, NJ; Warsaw, VA, and Willards, COMMISSION PART 73—RADIO BROADCASTING MD SERVICES 47 CFR Part 73 AGENCY: Federal Communications Commission. I 1. The authority citation for part 73 [DA 06–2026] ACTION: Final rule. continues to read as follows: Radio Broadcasting Services; Various Authority: 47 U.S.C. 154, 303, 334, 336. SUMMARY: The Audio Division grants a Locations counterproposal filed by CXR Holdings, § 73.202 [Amended] Inc., (‘‘CXR’’) licensee of Station AGENCY: Federal Communications WDYL(FM), Chester, Virginia in I Commission. 2. Section 73.202(b), the Table of FM response to a Notice of Proposed Rule ACTION: Final rule. Allotments under California, is Making issued at the request of Dana amended by removing Channel 289A Puopolo proposing the allotment of SUMMARY: The Commission, on its own and adding Channel 289B1 at Lost Hills. Channel 299A at Port Norris, New motion, editorially amends the Table of I Jersey. Channel 265B1 is substituted for FM Allotments to specify the actual 3. Section 73.202(b), the Table of FM Allotments under Louisiana, is Channel 266A at a new transmitter site, classes of channels allotted to various reallotted from Chester to Lakeside, communities. The changes in channel amended by removing Channel 262C and adding Channel 262C0 at Virginia as the community’s first local classifications have been authorized in aural service, and Station WDYL’s response to applications filed by Alexandria and by removing Channel 281C and adding Channel 281C0 at license is modified to reflect the licensees and permittees operating on changes. Channel 298A is substituted Monroe. these channels. This action is taken for Channel 265A at Warsaw, Virginia, pursuant to Revision of Section I 4. Section 73.202(b), the Table of FM at a new transmitter site Station WNNT– 73.3573(a)(1) of the Commission’s Rules Allotments under Minnesota, is FM’s license is modified to reflect the Concerning the Lower Classification of amended by removing Channel 223C3 channel substitution. Channel 299A is an FM Allotment, 4 FCC Rcd 2413 and adding Channel 223C2 at Park substituted for Channel 298B1 at a new (1989), Amendment of the Rapids. site at Fruitland, Maryland and Station Commission’s Rules to permit FM WKHI(FM)’s license is modified I 5. Section 73.202(b), the Table of FM Channel and Class Modifications by accordingly. Channel 265B1 is allotted Allotments under Montana, is amended Applications, 8 FCC Rcd 4735 (1993) at Lakeside, Virginia, at a site 9.6 by removing Channel 286A and adding and Streamlining of Radio Technical kilometers (5.9 miles) east of the Channel 283C1 at Billings and by Rules in Part 73 and 74 of the community at coordinates 37–36–08 NL Commission’s Rules, 15 FCC Rcd 21649 removing Channel 300A and adding and 77–22–09 WL. Channel 299A is be (2000). Channel 300C2 at Darby. allotted at Fruitland, Maryland at a site DATES: Effective November 1, 2006. I 6. Section 73.202(b), the Table of FM 13.2 kilometers (8.2 miles) northeast of FOR FURTHER INFORMATION CONTACT: Allotments under Nebraska, is amended the community at coordinates 38–22–55 Rolanda F. Smith, Media Bureau, (202) by removing Channel 224A and adding NL and 75–29–25 WL. Channel 298A 418–2180. Channel 224C2 at Ainsworth. can be allotted at Warsaw, Virginia, at Station WNNT–FM’s transmitter site SUPPLEMENTARY INFORMATION: This is a I 7. Section 73.202(b), the Table of FM located 1.7 kilometers (1.1 miles) south summary of the Commission’s Report Allotments under North Dakota, is of the community at coordinates 37–56– and Order, adopted October 11, 2006, amended by removing Channel 239C 39 NL and 76–45–05 WL. and released October 13, 2006. The full and adding Channel 239C1 at New text of this Commission decision is DATES: Effective November 27, 2006. England and by removing Channel 290C ADDRESSES: Federal Communications available for inspection and copying and adding Channel 290C1 at Sarles. during regular business hours at the Commission, 445 Twelfth Street, SW., FCC Reference Information Center, I 8. Section 73.202(b), the Table of FM Washington, DC 20554. Portals II, 445 12th Street, SW., Room Allotments under Wyoming, is amended FOR FURTHER INFORMATION CONTACT: CY–A257, Washington, DC, 20554. The by removing Channel 222C1 and adding Victoria M. McCauley, Media Bureau, complete text of this decision may also Channel 221C2 at Kayce and by (202) 418–2180. be purchased from the Commission’s removing Channel 298A and adding SUPPLEMENTARY INFORMATION: This is a duplicating contractor, Best Copy and Channel 298C2 at Wheatland. synopsis of the Commission’s Report
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and Order, MB Docket No. 04–409, SUMMARY: This document resolves a serve children in their audience. We adopted October 11, 2006, and released number of issues regarding the address matters related to two areas: the October 13, 2006. The full text of this obligation of television broadcasters to obligation of television broadcast Commission decision is available for protect and serve children in their licensees to provide educational and inspection and copying during regular audience. The document addresses informational programming for children business hours at the FCC’s Reference matters related to two areas: the and the requirement that television Information Center, Portals II, 445 obligation of television broadcast broadcast licensees and cable operators Twelfth Street, SW., Room CY–A257, licensees to provide educational and protect children from excessive and Washington, DC 20554. The complete informational programming for children inappropriate commercial messages. text of this decision may also be and the requirement that television Some of the rules and policies adopted purchased from the Commission’s broadcast licensees protect children herein apply only to digital duplicating contractor, Best Copy and from excessive and inappropriate broadcasters, while others apply to both Printing, Inc., 445 12th Street, SW., commercial messages. The item makes analog and digital broadcasters as well Room CY–B402, Washington, DC 20554, certain modifications to the rules and as cable operators. Our goals in telephone 1–800–378–3160 or policies adopted in the Commission’s resolving these issues are to provide www.BCPIWEB.com. The Commission 2004 order in this proceeding. These television broadcasters with guidance will send a copy of this Report and modifications respond to petitions for regarding their obligation to serve Order in a report to be sent to Congress reconsideration filed in response to the children as we transition from an analog and the Government Accountability 2004 rules as well as a joint proposal to a digital television environment, Office pursuant to the Congressional recommending modifications to those update our rules protecting children Review Act, see 5 U.S.C. 801(a)(1)(A). rules filed by a group of cable and from overcommercialization in broadcast industry representatives and children’s programming, and improve List of Subject in 47 CFR Part 73 children’s television advocates, among our children’s programming rules and Radio, Radio broadcasting. others. policies. I As stated in the preamble, the Federal DATES: The stay is lifted on § 73.670 2. Specifically, this Second Order Communications Commission amends paragraphs (b), (c) and Note 1; § 73.671 makes certain modifications to the rules 47 CFR part 73 as follows: paragraphs (e) and (f) and § 76.225 and policies adopted in our September paragraphs (b), (c) and Note 1 effective 9, 2004 Report and Order and Further PART 73—RADIO BROADCAST January 2, 2007. The amendments in Notice of Proposed Rule Making (70 FR SERVICES this final rule are effective January 2, 25 and 63, January 3, 2005) (‘‘2004 2007. Order’’) in this proceeding. The I 1. The authority citation for part 73 modifications we make today respond to continues to read as follows: FOR FURTHER INFORMATION CONTACT: Kim petitions for reconsideration filed in Matthews, Media Bureau, (202) 418– Authority: 47 U.S.C. 154, 303, 334, 336. response to the rules as well as a Joint 2120. Proposal of Industry and Advocates on § 73.202 [Amended] SUPPLEMENTARY INFORMATION: This is a Reconsideration of Children’s Television Rules (‘‘Joint Proposal’’) filed I summary of the Federal 2. Section 73.202(b), the Table of FM Communications Commission’s Second by a group of cable and broadcast Allotments under Maryland is amended Order on Reconsideration and Second industry representatives and children’s by removing Channel 298B1 and by Report and Order in MM Docket No. television advocates, among others. adding Channel 299A at Fruitland. 00–167, FCC 06–143, adopted 3. Our decision today does not alter I 3. Section 73.202(b), the Table of FM September 26, 2006, and released the new children’s core programming Allotments under Virginia is amended September 29, 2006. The complete text ‘‘multicasting’’ rule adopted in the 2004 by removing Chester, Channel 266A, by of this document is available for Order, but does clarify the way in which adding Lakeside, Channel 265B1, and inspection and copying during normal repeats of core programs will be counted by removing Channel 265A and by business hours in the FCC Reference under the new rule. We do not make adding Channel 298A at Warsaw. Center, 445 12th Street, SW., substantial changes to the four-prong Washington, DC 20554. The complete Web site rule adopted in the 2004 Federal Communications Commission. text may be purchased from the Order, but do amend the host selling John A. Karousos, Commission’s copy contractor, Qualex restrictions adopted in the 2004 Order Assistant Chief, Audio Division, Media International, 445 12th Street, SW., to apply those restrictions less broadly Bureau. Room CY–B402, Washington, DC 20554. and to exempt certain third party Web [FR Doc. E6–18410 Filed 10–31–06; 8:45 am] The full text may also be downloaded sites from the host selling restriction. BILLING CODE 6712–01–P at: www.fcc.gov. To request materials in We also revise the definition of accessible formats for people with ‘‘commercial time’’ adopted in the 2004 disabilities (braille, large print, Order to limit the kinds of promotions FEDERAL COMMUNICATIONS electronic file, audio format), send an e- of children’s programs that must be COMMISSION mail to [email protected] or call the counted under the advertising rules Consumer & Governmental Affairs adopted in the 2004 Order. In addition, 47 CFR Parts 73 and 76 Bureau at (202) 418–0530 (voice), (202) with regard to scheduling of core 418–0432 (TTY). children’s programming, we vacate the [MM Docket No. 00–167; FCC 06–143] percentage cap on the number of Summary of the Second Order on permissible core program preemptions Broadcast Services; Children’s Reconsideration and Second Report adopted in the 2004 Order and return to Television; Cable Operators 1. In this Second Order on our prior practice of addressing the AGENCY: Federal Communications Reconsideration and Second Report and number of preemptions and Commission. Order (‘‘Second Order’’) we resolve rescheduling of core programming on a issues regarding the obligation of case-by-case basis. These modifications ACTION: Final rule. television broadcasters to protect and will serve the public interest by
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ensuring an adequate supply of educational programming are entitled to children’s television advocates argued children’s educational and staff-level approval of the CTA portion that history shows that market forces do informational programming as we of their license renewal application. not ensure that broadcasters serve the transition to digital television With the advent of digital broadcasting educational needs of children and that technology, and protecting children and the multicasting ability that the record in this proceeding from excessive and inappropriate technology offers, the Commission demonstrates that the educational needs commercial messages in broadcast and determined in the 2004 Order that it of children are not currently being met. cable programming, without unduly would adopt a new method of 9. The Joint Proposal generally impairing the scheduling flexibility of quantifying the core programming accepts the new multicasting rule but broadcasters and cable operators. guideline for digital broadcasters that recommends a clarification of the choose to multicast. The Commission restriction on the number of repeated Discussion made clear that all digital broadcasters core programs that can count toward the 4. We commend the parties to the continue to be subject to the existing new programming guideline. Joint Proposal for their hard work in three hours per week core programming Specifically, the Joint Proposal would negotiating a compromise among a processing guideline on their main clarify that at least 50 percent of the group of entities with often widely program stream. In addition, for DTV core programming counted toward divergent views on the appropriate rules broadcasters that choose to multicast, meeting the additional programming and policies in the area of children’s the guideline increases in proportion to guideline cannot consist of program television. Negotiation among interested the additional hours of free episodes that had already aired within parties can often be productive in programming offered on multicast the previous seven days on either the achieving a workable compromise channels—up to an additional three station’s main program stream or on proposal consistent with the public hours per week for each 24-hour free another of the station’s free digital interest on issues before the multicast program stream. Under the program streams. This is not a change in Commission, and we encourage such revised guideline adopted in the 2004 the rule, but rather a clearer statement efforts. This private agreement has now Order, digital broadcasters can choose to of what the rule was intended to cover. been subject to public scrutiny and we air some or all of the additional core The Joint Proposal would also amend will, of course, consider all comments programming on either the main stream FCC Form 398 to collect information in determining what rules and policies or a multicast stream, as long as the necessary to enforce this limit. are most consistent with the statute and multicast stream receives MVPD 10. We will retain the revised core best serve the public interest. Based on carriage comparable to the stream that programming processing guideline as the full record before us, we conclude generated the additional core adopted in the 2004 Order. As we stated that the Joint Proposal appropriately programming obligation. then, we believe that the revised balances the concerns and needs of 7. In order to ensure that digital guideline translates the existing three- children and parents with those of broadcasters do not simply replay the hour guideline to the digital industry, advertisers, and others, and same core programming in order to meet environment in a manner that is both will result in swift implementation of this revised processing guideline, the fair to broadcasters and meets the needs the rules. Commission required in the 2004 Order of the child audience. The previous core 5. We note that the Joint Proposal that ‘‘at least 50 percent of core programming guideline represented the recommends only relatively minor programming not be repeated during the Commission’s judgment as to what clarifications to two of the rules adopted same week in order to qualify as core.’’ constituted a ‘‘reasonable, achievable in the 2004 Order—the digital The Commission exempted from this guideline’’ that would not unduly broadcasting processing guideline and requirement any program stream that burden broadcasters. Now that digital the Web site address rule. While some merely time shifts the entire broadcasters have the capability to of the comments filed in response to the programming line-up of another significantly increase their overall hours Joint Proposal indicate that some parties program stream. In addition, the of programming, increasing the amount remain concerned about aspects of the Commission stated that during the of core programming will not result in digital broadcasting processing digital transition we would not count as an unreasonable burden. For example, if guideline, by and large the comments repeated programming core programs a station chooses to broadcast a second support the Joint Proposal. In this item, that are aired on both the analog station stream of free video programming we retain both the digital programming and a digital program stream. twenty-four hours a day, seven days a processing guideline and the Web site 8. A number of broadcast interests week, it can satisfy the new guideline by address rule with only minor argued on reconsideration that requiring providing merely three additional hours modifications. These and the other additional programming obligations for per week of core programming—or less modifications we make to the 2004 rules multicast streams would stifle the than two percent of the channel’s 168 are consistent with the deployment of specialized channels. hours of additional weekly recommendations of the Joint Proposal Broadcasters also claimed that there is programming. In addition, we believe and with our overall goals of ensuring no record evidence of a failure by that a guideline that increases the the provision of sufficient children’s commercial TV stations to meet amount of core programming in a educational programming and children’s educational programming manner roughly proportional to the protecting children from excessive needs. To counter the disincentive to air increase in free video programming advertising as we transition to the multicast channels, some petitioners offered by broadcasters is consistent digital era. supported an exemption for digital with the objective of the CTA ‘‘to program streams that carry non- increase the amount of educational and Digital Core Children’s Programming entertainment programming. Petitioners informational broadcast television Processing Guideline also argued that the Commission should available to children.’’ 6. Under the core programming waive the ‘‘comparable carriage’’ 11. We also conclude that the revised processing guideline adopted in 1996, element of the guideline, at least until quantitative processing guideline we analog broadcasters that air at least three MVPDs are required to carry all free reaffirm today is consistent with the hours per week of core children’s over-the-air channels. In response, First Amendment. It is well established
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that the broadcast media do not enjoy public interest programming. These level of children’s programming the same level of First Amendment commenters argue that many local increases as well. protection as do other media. Under this broadcasters are planning multicast 15. As noted, the Joint Proposal more lenient scrutiny, it is also well channels that focus on a single genre of suggests a clarification of the number of established that the government may programming, such as weather or news, permissible core program repeats under regulate broadcast speech in order to and that the multicast guideline as the processing guideline. Specifically, advance its compelling interest in adopted would discourage the provision the Joint Proposal recommends that the promoting and protecting the well-being of such specialized channels. These Commission clarify that at least 50 of children. As we discussed in the 2004 commenters also argue that children are percent of the core programming Order, our new guideline imposes unlikely to watch programming aired on counted toward meeting the additional reasonable parameters on a channels primarily devoted to news and programming guideline cannot consist broadcaster’s use of the public airwaves other specialized adult programming. of program episodes that had already and is narrowly tailored to advance the 13. We decline to revise our aired within the previous seven days on government’s substantial, and indeed processing guideline as suggested by either the station’s main program stream compelling, interest in the protection these commenters. As we stated in the or on another of the station’s free digital and education of America’s children. In 2004 Order, we do not want to program streams. We will adopt this enacting the CTA, Congress explicitly discourage broadcasters from providing clarification; it makes the rule easier to found that ‘‘as part of their obligation to channels with a specialized focus. understand and apply and is consistent serve the public interest, television However, we agree with the Children’s with the intent of the 2004 Order. All of station operators and licensees should Media Policy Coalition that the the commenters that addressed this provide programming that serves the guideline provides broadcasters the aspect of the Joint Proposal supported special needs of children.’’ As noted flexibility to move core programming to this clarification. We will also adopt the above, the multicasting rule either their main programming stream Joint Proposal recommendation, substantially advances that interest by or other multicast streams, so long as supported by other commenters, that furthering ‘‘the objective of the CTA ‘to the stream the programming is moved to FCC Form 398 be amended to collect the increase the amount of educational and receives comparable MVPD carriage to information necessary to enforce the informational broadcast television the stream triggering the additional limit on repeats under the revised available to children.’’’ Moreover, obligation. Thus, the guideline guideline. As suggested by commenters, we will permit licensees to certify on consistent with the First Amendment, preserves the principle that, in order to Form 398 that they have complied with the rule is narrowly tailored to achieve obtain staff level approval of their CTA the repeat restriction and will not its objective. It increases the guideline compliance, broadcasters must provide require broadcasters to identify each only for broadcasters that choose to use three hours of children’s core program episode on Form 398. We will their digital capacity to air additional programming for every 168 hours per require licensees, however, to retain free video programming. Broadcasters week of free video programming that records sufficient to document the continue to retain wide discretion in they air, while at the same time giving accuracy of their certification, including choosing the ways in which they will broadcasters flexibility to choose the records of actual program episodes meet their CTA obligations. Under the multicast stream that will air that rule, the core programming guideline aired, and to make such documentation programming. In addition, broadcasters available to the public upon request. increases in a manner roughly could meet the guideline by airing The children’s programming liaison, proportional to the additional amount of children’s programming on specialized whose name and phone number must be free video programming multicasters channels, such as a children’s news included on FCC Form 398, should be choose to provide. That guideline, by program on a twenty-four hour news able to provide documentation to ‘‘giving broadcasters clear but channel or a children’s educational substantiate the certification if nonmandatory guidance on how to weather program on a twenty-four hour requested. guarantee compliance’’ with the CTA, weather channel. Furthermore, we note provides ‘‘a constitutional means of that our rules provide flexibility for Preemption giving effect to the CTA’s programming licensees that have aired somewhat less 16. To qualify as ‘‘core programming’’ requirement.’’ We reject the State core programming than indicated by the for purposes of the children’s Broadcasters Associations’ argument guideline but that nonetheless programming processing guideline, the that our revised guideline is demonstrate an adequate commitment Commission requires that a children’s constitutionally unacceptable because it to educating and informing children. program be ‘‘regularly scheduled’’; that ‘‘dictates the removal of one form of 14. Some broadcast commenters also is, a core children’s program must ‘‘be content over another.’’ The CTA itself point out that there is no requirement scheduled to air at least once a week’’ reflects a preference for children’s for cable carriage of multicast channels, and ‘‘must air on a regular basis.’’ In educational and informational thereby limiting the flexibility of adopting its 1996 children’s programming, and no party has broadcasters to consolidate their core programming rules, the Commission challenged the constitutionality of the programming on a multicast stream stated that television series typically air CTA’s provisions for promoting such under the comparable MVPD carriage in the same time slot for thirteen programming. requirement. While we recognize that consecutive weeks, although some 12. A number of broadcast companies the comparable MVPD carriage episodes may be preempted for and industry associations, none of requirement may limit the flexibility of programs such as breaking news or live which are parties to the Joint Proposal, some broadcasters to consolidate core sports events. The Commission stated in argue that the Commission either should programming on a single multicast the 1996 Order that it would leave to the not impose additional core channel, we believe that the comparable staff to determine, with guidance from programming requirements on digital carriage requirement is necessary to the full Commission as necessary, what multicast channels, or at least should ensure that, as additional free constitutes regularly scheduled exempt multicast channels that offer programming is made available to programming and what level of educational, informational, and/or viewers in the station’s service area, the preemption is allowable.
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17. In the 2004 Order, the the policy formerly developed by the children from excessive and Commission stated that core programs Commission staff, a program counted as inappropriate commercial messages. moved to the same time slot on another preempted only if it was not aired in a Accordingly, the 2004 Order required digital program stream would not be substitute time slot (otherwise known as that, with respect to programs directed considered preempted, as long as the a ‘‘second home’’) with an on-air to children ages 12 and under, the alternate stream has comparable MVPD notification of the schedule change display of Internet Web site addresses carriage and the station provides notice occurring at the time of preemption during program material is permitted of the move on both the original and the during the previously scheduled only if: (1) The Web site offers a alternate program stream. In addition, episode. The on-air notification must substantial amount of bona fide the 2004 Order limited the number of announce the alternate date and time program-related or other noncommercial core programming preemptions for when the preempted show will air. As content; (2) the Web site is not primarily analog and digital broadcasters to no part of this policy, we will require all intended for commercial purposes, more than ten percent of core programs networks requesting preemption including either e-commerce or in each calendar quarter. Any flexibility to file a request with the advertising; (3) the Web site’s home preemption beyond the ten percent limit Media Bureau by August 1 of each year page and other menu pages are clearly would cause that program not to count stating the number of preemptions the labeled to distinguish the as core under the processing guideline, network expects, when the program will noncommercial from the commercial even if the program were rescheduled. be rescheduled, whether the sections; and (4) the page of the Web The 2004 Order exempted preemptions rescheduled time is the program’s site to which viewers are directed by the for breaking news from the preemption second home, and the network’s plan to Web site address is not used for e- limit and rescheduling requirement. notify viewers of the schedule change. commerce, advertising, or other 18. On reconsideration, a number of We will presume that non-network commercial purposes (e.g., contains no petitioners argued that the preemption stations are complying with the three links labeled ‘‘store’’ and no links to cap is unworkable in light of hour core programming requirement, another page with commercial material). broadcasters’ commitments to air live and do not need broad preemption This restriction applies to analog and sports programming on Saturdays, relief. We intend to monitor the number, digital broadcasters as well as cable particularly on the West coast. In lieu of rescheduling, and promotion of operators. the new rules, some petitioners urged preemptions of all stations under this 22. On reconsideration, a number of the Commission to continue its prior policy by our quarterly review of their petitioners claimed that the rule exceeds practice of case-by-case staff approval of Children’s Programming Reports to the Commission’s authority because the network preemption practices. Other ensure that the interests of the child CTA does not authorize regulation of petitioners supported exempting from audience are being served. We find this Web site addresses, which petitioners the preemption cap live sports approach to be a reasonable compromise assert are not commercials. We disagree. programming or children’s programs for programmers that routinely face As the children’s television advocates rescheduled in accordance with the conflicts between their children’s asserted, the Commission has the Media Bureau’s current preemption television blocks and sports authority to enact these restrictions policies. In their original opposition to programming as the result of time because they do not regulate Internet these petitions, children’s advocates differences. We note that the concept of content, but rather the advertising of agreed that a modest modification of the a ‘‘second home’’ is familiar to viewers, commercial Web sites in children’s new preemption rule would be and are persuaded that those core programming, a subject clearly within appropriate to accommodate major programs that must be preempted are the scope of the Commission’s sporting events such as the Olympics consistently rescheduled and promoted. jurisdiction. Several petitioners also and World Cup. Indeed, the Media Bureau has challenged the rule on notice grounds. 19. The Joint Proposal recommends previously found that children’s In response, child advocates argued that that the Commission not adopt any educational and informational the Commission gave adequate notice of percentage or other numerical limit on programming efforts have not been the potential restriction, because it preemptions and instead return to the ‘‘unduly affected by the limited sought comment on whether to prohibit Commission practice of ensuring, on a preemption flexibility granted’’ under all direct links to commercial Web sites case-by-case basis, that broadcasters do the existing standard. and the term Web site links can refer to not engage in excessive preemptions of either passive displays or interactive core programming. All of the Limit on Display of Internet Web Site links. We agree that adoption of the Web commenters that addressed the issue of Addresses site display rules was within the scope preemptions supported the Joint 21. The CTA requires that commercial of the NPRM. Furthermore, the Second Proposal recommendation to eliminate television broadcasters and cable FNPRM sought comment ‘‘on the rules the cap on the number of preemptions operators limit the amount of and policies adopted in the [2004] Order and return to a case-by-case approach. commercial matter in children’s in light of the recommendations 20. We are persuaded that the burden programs to no more than 101/2 reflected in the Joint Proposal’’ and created by the ten percent cap on minutes per hour on weekends and 12 asked for ‘‘any alternative preemptions outweighs the benefits the minutes per hour on weekdays. The modifications’’ to the 2004 rules, in Commission sought to achieve, and Commission noted in the 2004 Order addition to the modifications proposed therefore hereby repeal the ten percent that some broadcasters are displaying in the Joint Proposal. Thus, the notice cap on preemptions adopted in the 2004 Internet Web site addresses during issue is moot. Order. We will instead institute a children’s program material (for 23. The Joint Proposal does not procedure similar to that used by the example, in a crawl at the bottom of the propose material changes to the Web Media Bureau and the Commission screen) and expressed concern that the site rule adopted in the 2004 Order but following adoption of the 1996 display of such addresses for Web sites requests two clarifications: (1) That the children’s television Order whereby established for commercial purposes in rule applies only when Internet networks sought informal approval of children’s programs was inconsistent addresses are displayed during program their preemption plans each year. Under with the CTA’s mandate to protect material or during promotional material
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not counted as commercial time; and (2) programming is necessary ‘‘to protect we are persuaded by commenters that if that if an Internet address for a Web site children, who are particularly we do not carve out an exception for that does not meet the four-prong test is vulnerable to commercial messages.’’ PSAs licensees and cable operators will displayed during a promotion, in The rule is narrowly tailored. It only be discouraged from airing them addition to counting against the limits when certain types of Web site because they do not want to incur the commercial time limits, the promotion addresses may be televised; it places no obligation of ensuring that any Web site will be clearly separated from limits on displays of Web sites that are addresses displayed comply with the programming material. The comments not commercial in nature. In addition, four prong test. Given the non-profit filed in response to the Second FNPRM these restrictions apply only during nature of PSAs, we do not expect abuse generally support the Joint Proposal non-commercial portions of children’s of this exemption. But we will revisit approach. programs, which represent a tiny this issue if the need arises. 24. We will retain the rule on Web fraction of a broadcaster’s programming. 27. For similar reasons, we also clarify site addresses and, in addition, adopt The rule does nothing to prevent that station identifications and the clarifications proposed in the Joint broadcasters and cable programmers emergency announcements are not Proposal. As the Commission stated in from publicizing their Web sites as often subject to the rules governing the the 2004 Order, the Web site address as they wish during their many hours of display of Web site addresses as long as rule fairly balances the interest of other programming or during properly the display is consistent with the broadcasters in exploring the potential buffered commercial portions of purpose of the announcement. The four uses of the Internet with our mandate to children’s programming, regardless of protect children from over- prong Web site address rule applies to whatever content those Web sites may Web site addresses displayed during commercialization. The display of the contain. Further, despite petitioner’s address of a Web site that sells a program material and, as clarified passing assertions, the Web site rule as above, to promotional material not product is the equivalent of a modified is not constitutionally suspect commercial encouraging children to go counted as commercial time. Station on vagueness grounds. We find that the identifications and emergency to the store and buy the product. Thus, four-part test is sufficiently clear to give including the display during program announcements are neither program broadcasters reasonable notice of what material nor promotions for purposes of material converts that program material conduct is proscribed. into commercial matter just as a host the Web site rule. Rather, both are 26. A number of commenters, telling children to race to their local toy announcements required under the store would. We note that broadcasters including the Ad Council, request that Commission’s rules and must comport are free to display the addresses of Web public service announcements (‘‘PSAs’’) with certain requirements regarding sites that do not comply with the test be exempt from the four-prong Web site their composition and timing. To the during the allowable commercial time, rule. The Ad Council states that the rule extent a licensee includes a Web site as long as it is adequately separated has created confusion within the address to provide more information from the program material; thus, the broadcast industry and has had a about an emergency or about how to burden is minimal and outweighed by chilling effect on broadcasters’ contact the station, we find it the benefits discussed above. The minor willingness to run PSAs. We agree that unnecessarily restrictive to require that clarifications recommended by the Joint further clarification of this issue could such a Web site comply with the four Proposal make this point clear. help avoid confusion. We agree with the prong test. 25. We also disagree with petitioners, Children’s Media Policy Coalition that 28. We decline to exempt closing and conclude that the Web site rule we we should clarify that certain PSAs, credits from application of the Web site modify today is consistent with the First which are not commercial matter under address rules as requested by some Amendment. Because this rule regulates our rules, are exempt from the Web site commenters. Closing credits are part of commercial speech, it is subject to less display rules. The Commission has the television program material and First Amendment protection than historically encouraged licensees to air should, therefore, be subject to the Web noncommercial speech. The rule is PSAs as part of their obligation to fulfill site restrictions. therefore permissible under the First the public interest. Indeed, in the 29. We decline at this point to further Amendment if it ‘‘directly advances’’ a children’s television context, as define terms in the Web site rule. NAB ‘‘substantial’’ governmental interest in a discussed above, licensees that have not argues that certain terms in the rule are manner that ‘‘is not more extensive than aired at least three hours of core vague and do not provide sufficient necessary to serve that interest.’’ The programming may count educational guidance to broadcasters on whether a Web site rule satisfies these criteria. By and informational PSAs toward the limiting the display of commercial Web three hour processing guideline. Thus, Web site would comply with the Web site addresses during children’s the Commission has already adopted a site rule. We believe that the rule, as programming, the Web site rule policy of encouraging the airing of PSAs clarified herein, is sufficiently clear to advances the government’s substantial during programming directed to guide broadcasters’ compliance. Isolated interest in protecting children from children. For these purposes, we will concerns about the clarity of the Web overcommercialization. Numerous Web define PSAs exempt from the Web site site rule can be addressed by the sites sell products with special appeal to display rules as suggested by the Commission staff on a case-by-case children. Televised references to Coalition: PSAs aired on behalf of basis. commercial Web sites are no different independent non-profit or government 30. We also decline to allow from other forms of advertising. A organizations, or media companies in broadcasters to avoid liability by relying television commercial encouraging partnership with non-profits or on representations from program children to go to a toy store Web site, government entities, that display Web providers that web addresses meet the for example, is substantially similar to sites not under the control of the four-prong test. We do not expect an advertisement telling children to go licensee or cable company. We believe compliance to be burdensome, but we to their local toy store. As such, a limit it is unlikely that PSAs meeting this will revisit this issue if we receive on televised advertising of commercial definition will display addresses for evidence that this is imposing an undue Web sites during children’s commercially-oriented Web sites, and burden on broadcasters.
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Host Selling children place in program characters limits rules and policies. As such, there 31. The Commission’s long standing allows advertisers to take unfair will be multiple layers of separation host selling policy prohibits the use of advantage of the relationship between between the program and the third party program characters or show hosts to sell the hosts and young children. This can Web site, which will sufficiently products in commercials during or occur whether the host selling occurs on attenuate the commercial content from adjacent to shows in which the the air or on a Web site to which the the relevant programming. 37. Television licensees currently character or host appears. Because of the television program refers children. 35. We agree, however, with those certify their compliance with the unique vulnerability of children to host who argue that our original formulation children’s advertising commercial limits selling, the 2004 Order prohibits the of the host selling rule was overly on their license renewal forms and are display of Web site addresses in restrictive, and that we should revise it required to maintain in their public children’s programs when the site uses as recommended by the Joint Proposal. inspection file records sufficient to characters from the program to sell We believe the revised rule achieves a substantiate the certification. As the products or services. In the 2004 Order, better balance than the existing rule Commission stated in the 2004 Order, the Commission stated that the between the goals of protecting children licensees will be required also to certify restriction on Web sites that use host and permitting broadcasters and cable that they have complied with the selling applies to Web site addresses operators to make appropriate use of requirements concerning the display of displayed both during program material Web site displays. The 2004 Order Web site addresses in such and during commercial material. expressly states that commercial programming. In addition, licensees will 32. Several parties argued on portions of Web sites that comply with be required to maintain in their public reconsideration that the host selling the Web site display rules may sell or inspection file, until final action has restriction is unnecessarily restrictive. advertise products associated with the been taken on the station’s next license These petitioners contended that related television program. As several renewal application, records sufficient familiar television characters are often parties noted, the host selling rule as to substantiate the station’s certification used in Web sites in ways that are not originally written appeared to prohibit of compliance with the restrictions on commercial in nature, such as to adorn the sale of any merchandise Web site addresses in programs directed a webpage or guide children from one incorporating a program-related to children ages 12 and under. Cable page to the next. Petitioners also argued character anywhere on a Web site, even operators airing children’s programming that any Web site promotion of any if that portion of the site was clearly must maintain records sufficient to product or service incorporating a identified as commercial in nature and verify compliance with the Web site program-related character appears to the site otherwise complied with the address and host selling rules and make violate the rule even though the 2004 four-prong Web site rule. The revised such records available to the public. Order permits the sale of program- host selling rule we adopt today permits Such records must be maintained by related merchandise on appropriately the sale of merchandise featuring a cable operators for a period sufficient to cabined commercial sections of a Web program-related character in parts of the cover the limitations period specified in site. In response, children’s advocates Web site that are sufficiently separated 47 U.S.C. 503(b)(6)(B). argued that there are clear examples of from the program itself to mitigate the Definition of Commercial Matter problems with host selling on Web sites, impact of host selling. and that the Commission can address 36. Univision supports the Joint 38. The limitation on the duration of any concerns about the clarity of its Proposal revision but states that the advertising in children’s programming rules on a case-by-case basis. revised rule is vague with respect to the of 10 1⁄2 minutes per hour on weekends 33. The Joint Proposal proposes that proposed exemption for certain third and 12 minutes per hour on weekdays the host selling rule in the 2004 Order party sites as it fails to provide a applies to ‘‘commercial matter.’’ Prior to be vacated and replaced with the definition of the term ‘‘third party.’’ We the 2004 Order, the term ‘‘commercial following rule: decline to adopt a definition of ‘‘third matter’’ was defined to exclude certain Entities subject to commercial time limits party’’ at this time as we believe that the types of program interruptions, under the Children’s Television Act (‘‘CTA’’) purpose of the third party exemption including promotions of upcoming will not display a Web site address during or from the host selling restriction is programs that do not mention sponsors. adjacent to a program if, at that time, on sufficiently clear to provide guidance to The Commission noted in the 2004 pages that are primarily devoted to free broadcasters and cable operators about Order that a significant amount of time noncommercial content regarding that the kinds of ads and Web sites to which is devoted to these types of specific program or a character appearing in the exemption applies. As stated by the announcements in children’s that program: (1) Products are sold that Coalition, the intent behind the third programming, thereby reducing the feature a character appearing in that program; or (2) a character appearing in that program party exemption to the rule is to amount of actual program material far is used to actively sell products. alleviate the need for companies to more than the commercial limits alone To clarify, this rule does not apply to: (1) police third party Web sites over which might suggest. To address this problem, Third-party sites linked from the companies’ the company has no control. In the 2004 Order revised the definition of web pages; (2) on-air third-party addition, the third party Web site would ‘‘commercial matter’’ to include advertisements with Web site references to not be included in the relevant promotions of television programs or third-party Web sites; or (3) pages that are children’s programming; rather the third video programming services other than primarily devoted to multiple characters party Web site would be displayed in a children’s educational and from multiple programs. commercial (subject to the commercial informational programming. The revised Commenters that addressed the host limits) or would merely be linked to definition applies to analog and digital selling issue generally support the Joint from the company’s Web site. broadcasters and to cable operators. Proposal recommendation. Advertisements with or without Web 39. On reconsideration, petitioners 34. We continue to believe that it is site addresses must be separated from generally argued that the revised important to restrict the practice of host programming material by use of definition of commercial matter would selling in children’s programming. As bumpers, as currently required under lead to lost ad sales in children’s we have stated before, the trust that the Commission’s existing commercial programming and reduced revenues
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from such programming as well as number of program promotions will Public Notice announcing the effective diminished opportunities to promote help protect children from date of this rule. programming. Petitioners claimed that overcommercialization of programming 47. In addition, the general public and reducing the number of program consistent with overall intent of the other Federal agencies were invited to promotions would reduce the number of CTA. In addition, exempting program comment on the information collection children watching the programs. promotions for programming requirements in the Second FNPRM. We Petitioners also argued that there is no appropriate for children may encourage further note that pursuant to the Small evidence that counting internal broadcasters to promote children’s Business Paperwork Relief Act of 2002, promotions as commercials would programming with educational and the Commission previously sought increase the amount of content in informational value, thereby increasing specific comment on how the children’s shows or reduce program public awareness of the availability of Commission might ‘‘further reduce the interruptions as programs are produced this programming. information collection burden for small in a specific length. Children’s business concerns with fewer than 25 advocates claimed that new children’s Conclusion employees.’’ We received no comments programs can be made longer and that 43. The rules and policies adopted concerning these information collection the amount of program material in herein will serve the public interest by requirements. For additional existing shows can be increased by both protecting children from excessive information concerning the information supplementing existing programs with and inappropriate advertising on collection requirements contained in short-form programming, that is, television and ensuring an adequate this Report and Order, contact Cathy programming lasting less than thirty supply of children’s educational Williams at 202–418–2918, or via the minutes. programming as we transition from an Internet to [email protected]. 40. As noted above, the 2004 Order analog to a digital television 48. Congressional Review Act. The included all program promotions other environment. Our actions today further Commission will send a copy of this than children’s educational and the public interest and the mandate of Second Order in a report to be sent to informational programming in the the CTA and provide a reasonable Congress and the Government definition of commercial matter. The balance between the concerns of Accountability Office pursuant to the Joint Proposal would change the revised industry and protecting the well-being Congressional Review Act, see 5 U.S.C. definition of ‘‘commercial matter’’ to of the nation’s children. § 801(a)(1)(A). exclude (1) promotions for any 49. Additional Information. For children’s or other age-appropriate Administrative Matters additional information on this programming appearing on the same 44. Final Regulatory Flexibility proceeding, please contact Kim channel, and (2) promotions for Analysis As required by the Regulatory Matthews, Policy Division, Media children’s educational and Flexibility Act, the Commission has Bureau at (202) 418–2154, or Holly informational programming appearing prepared a Final Regulatory Flexibility Saurer, Policy Division, Media Bureau on any channel. Commenters express Analysis (‘‘FRFA’’) relating to this at (202) 418–7283. general support for the Joint Proposal Report and Order. Ordering Clauses recommendation. 41. We will revise our definition of 45. Final Paperwork Reduction Act 50. It is ordered that, pursuant to the ‘‘commercial matter’’ as recommended Analysis. This Second Order contains authority contained in Sections 1, 2, by the Joint Proposal. We believe that information collection requirements 4(i), 303, 303a, 303b, and 307of the the revised definition of commercial which were proposed in the Second Communications Act of 1934, 47 U.S.C matter is consistent with the public FNPRM, 21 FCC Rcd 3642 (2006), 71 FR 151, 152, 154(i), 303, 303a, 303b, and interest, provides additional flexibility 15145 (March 27, 2006), and are subject 307, this Second Order on for broadcasters and cable operators, to the Paperwork Reduction Act of 1995 Reconsideration and Second Report and and furthers our goal of making high (‘‘PRA’’). The Second FNPRM proposed Order is adopted. quality children’s programming to revise FCC Form 398 and modify/add 51. It is further ordered that pursuant available to the public. We also note new information collection to the authority contained in Sections 1, that the CTA explicitly authorizes the requirements. These proposals were 2, 4(i), 303, 303a, 303b, and 307 of the Commission to review and evaluate the submitted to the Office of Management Communications Act of 1934, 47 U.S.C advertising duration limits; the and Budget (OMB) for review under 151, 152, 154(i), 303, 303a, 303b, and Commission is therefore authorized to Section 3507(d) of the PRA. The revised 307, the Commission’s rules are hereby change the definition of ‘‘commercial FCC Form 398 and modified/new amended as set forth in the rule matter’’ consistent with the intent of the information collection requirements changes. It is our intention in adopting CTA and the public interest. Thus, we were approved by OMB on June 23, these rule changes that, if any provision disagree with parties that argue the 2006, OMB Control No. 3060–0754. This of the rules is held invalid by any court revised definition is inconsistent with Second Order adopts the information of competent jurisdiction, the remaining the CTA. collection requirements and FCC Form provisions shall remain in effect to the 42. While the revised rule may not 398 as proposed. fullest extent permitted by law. limit program promotions in children’s 46. Our requirements regarding the 52. It is further ordered that the rules programming to the same extent as the requests that may be filed with the as revised in the rule changes shall be rule adopted in the 2004 Order, the Media Bureau by networks seeking effective 60 days after publication of the revision will still reduce the number of preemption flexibility will become Second Order in the Federal Register. interruptions that were permissible effective after approval by the Office of With respect to renewal applications, under the original rule and encourage Management and Budget (‘‘OMB’’). The we will evaluate compliance with these the promotion of programming Commission will publish a separate requirements in applications filed after appropriate for children, including Federal Register Notice seeking public that date. Licensee performance during educational and informational comment on this new information any portion of the renewal term that programming. As we stated in the 2004 collection requirement at a later date. predates the effective date of the rules Order, we believe that reducing the Upon OMB approval, we will issue a in the Second Order will be evaluated
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under current rules, and licensee educational television programming to apply those restrictions less broadly performance that post-dates the effective obligations and limitations on and to exempt certain third party Web date of the revised rules will be judged advertising in children’s programs sites from the host selling restriction. under the new provisions. should be interpreted and adapted to We also revise the definition of 53. It is further ordered that the Media apply to digital television broadcasting ‘‘commercial time’’ adopted in the 2004 Bureau make available to the public an in light of the new capabilities made Order to limit the kinds of promotions electronic version of FCC Form 398, possible by that technology. The Second of children’s programs that must be Children’s Television Programming Report and Order and Second Order on counted under the advertising rules Report, that reflects the changes adopted Reconsideration (‘‘Second Order’’) adopted in the 2004 Order. In addition, in this Second Order. A revised version makes certain modifications to the rules with regard to scheduling of core of this form has already been approved and policies adopted in our September children’s programming, we vacate the by OMB. Licensees will be required to 9, 2004 Report and Order and Further percentage cap on the number of use the revised electronic version of Notice of Proposed Rule Making (‘‘2004 permissible core program preemptions FCC Form 398 to report their children’s Order’’) in this proceeding. The adopted in the 2004 Order and return to core programming, including their modifications we make today respond our prior practice of addressing the digital core programming, for the first in part to a Joint Proposal of Industry number of preemptions and quarter of 2007. Thus, licensees must and Advocates on Reconsideration of rescheduling of core programming on a use the revised electronic version of Children’s Television Rules (‘‘Joint case-by-case basis. These modifications FCC Form 398 for their quarterly filing Proposal’’) filed by a group of cable and will serve the public interest by due no later than April 10, 2007. broadcast industry representatives and ensuring an adequate supply of 54. It is further ordered that the children’s television advocates, among children’s educational and Petitions for Reconsideration and others. The Commission sought informational programming as we Oppositions to Petition for comment on the Joint Proposal in the transition to digital television Reconsideration filed in response to the Second FNPRM. technology, and protecting children 2004 Report and Order and Further In the 2004 Order, the Commission from excessive and inappropriate Notice of Proposed Rule Making in this updated the children’s television rules commercial messages in broadcast and docket are granted in part and denied in and policies to ensure that they cable programming, without unduly part, as discussed above, and otherwise continue to serve the interests of impairing the scheduling flexibility of dismissed as moot. children and parents as the country broadcasters and cable operators. 55. It is further ordered that the transitions from analog to digital Summary of Significant Issues Raised Commission’s Consumer and television. Among other things, the by Public Comments in Response to the Governmental Affairs Bureau, Reference Commission revised the three-hour core IRFA Information Center, shall send a copy of programming processing guideline as it this Second Order on Reconsideration applies to DTV broadcasters that choose The U.S. Small Business and Second Report and Order, including to multicast. Specifically, the 2004 Administration (‘‘SBA’’) filed the only the Final Regulatory Flexibility Order increased the core programming comment in this proceeding responding Analysis, to the Chief Counsel for benchmark for digital broadcasters in a to the IRFA. The SBA notes that several Advocacy of the Small Business manner roughly proportional to the alternatives were suggested to the FCC Administration. increase in free video programming by various members of industry which 56. It is further ordered that the offered by the broadcaster on multicast could, according to the SBA, offer Commission shall send a copy of this channels. The 2004 Order also significant cost savings to smaller Second Order on Reconsideration and permitted the display of Internet Web broadcasters while potentially serving Second Report and Order in a report to site addresses during children’s the FCC’s goals. First, the SBA notes be sent to Congress and the General programming only if the Web site meets that the Local Broadcasters Alliance Accounting Office pursuant to the a four-prong test limiting commercial (‘‘LBA’’) recommends that the FCC limit Congressional Review Act, see 5 U.S.C. matter on the site, and prohibited the applicability of the new core 801(a)(1)(A). broadcasters from displaying Web site programming requirements to multicast addresses during both children’s streams that do not already offer Final Regulatory Flexibility Act programs and commercials appearing in educational, informational, and/or Analysis those programs if the Web site uses host public affairs programming. According As required by the Regulatory selling. The 2004 Order also imposed a to the SBA, providing an exemption for Flexibility Act of 1980, as amended percentage cap on the number of small broadcasters who are already (‘‘RFA’’) an Initial Regulatory Flexibility preemptions of core children’s programs providing public affairs content, and Analysis (‘‘IRFA’’) was incorporated in and revised the definition of who do not yet have the technical the Second Further Notice of Proposed ‘‘commercial matter’’ for purposes of the capabilities to insert children’s Rule Making (‘‘Second FNPRM’’) in this commercial limits to include programming on their multicast proceeding. The Commission sought promotions of other television programs channels, could serve the FCC’s goals written public comment on the unless they are children’s educational or and provide a reasonable amount of proposals in the Second FNPRM, informational programs. flexibility for small business. Second, including comment on the IRFA. The Our decision today does not alter the the SBA notes that the National Commission received one comment on new children’s core programming Association of Broadcasters (‘‘NAB’’) the IRFA, as discussed below. This ‘‘multicasting’’ rule adopted in the 2004 and others recommend that the FCC Final Regulatory Flexibility Analysis Order, but does clarify the way in which allow broadcasters to rely on (‘‘FRFA’’) conforms to the RFA. repeats of core programs will be counted certifications from programming under the new rule. We do not make providers that Web site addresses Need for, and Objectives of, the Second substantial changes to the four-prong displayed during core programming Order Web site rule adopted in the 2004 meet the FCC requirements, instead of The purpose of this proceeding is to Order, but do amend the host selling requiring stations to continuously determine how the existing children’s restrictions adopted in the 2004 Order monitor and edit programming
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containing Web site addresses. amount of educational and Description and Estimate of the Number According to the SBA, adopting this informational broadcast television of Small Entities To Which the alternative could offer significant cost available to children.’’ Proposed Rules Will Apply savings to small broadcasters. Third, the The digital programming processing The RFA directs agencies to provide SBA notes that the multicasting rule guideline provides broadcasters a description of and, where feasible, an would require that at least 50 percent of flexibility to move core programming to estimate of the number of small entities the core programming counted toward either their main programming stream that will be affected by the rules. The meeting the additional core RFA generally defines the term ‘‘small programming requirements not consist or other multicast streams, so long as the stream the programming is moved to entity’’ as having the same meaning as of program episodes that have already the terms ‘‘small business,’’ ‘‘small aired within the previous seven days. receives comparable MVPD carriage to the stream triggering the additional organization,’’ and ‘‘small governmental The SBA notes that the NAB jurisdiction’’ under section 3 of the recommends that the FCC amend Form obligation. Thus, the guideline preserves the principle that, in order to Small Business Act. In addition, the 398 to allow broadcasters to certify term ‘‘small business’’ has the same obtain staff level approval of their CTA compliance with the limitation. meaning as the term ‘‘small business compliance, broadcasters must provide According to the SBA, adopting this concern’’ under the Small Business Act. three hours of children’s core alternative could provide significant A small business concern is one which: compliance cost savings to both small programming for every 168 hours per (1) Is independently owned and and large broadcasters. week of free video programming that operated; (2) is not dominant in its field With respect to LBA’s argument that they air, while at the same time giving of operation; and (3) satisfies any the Commission limit the applicability broadcasters flexibility to choose the additional criteria established by the of the new core programming multicast stream that will air that SBA. requirements to multicast streams that programming. In addition, broadcasters Television Broadcasting. The do not already offer educational or could meet the guideline by airing proposed rules and policies apply to public affairs programming, as noted in children’s programming on specialized television broadcast licensees, and paragraph 20 of the Second Order a channels, such as a children’s news potential licensees of television service. number of commenters joined the LBA program on a twenty-four hour news The SBA defines a television broadcast in arguing that the Commission either channel or a children’s educational station as a small business if such should not impose additional core weather program on a twenty-four hour station has no more than $13 million in programming requirements on digital weather channel. Furthermore, we note annual receipts. Business concerns multicast channels, or at least should that our rules provide flexibility for included in this industry are those exempt multicast channels that offer licensees that have aired somewhat less ‘‘primarily engaged in broadcasting educational, informational, and/or core programming than indicated by the images together with sound.’’ According public interest programming. As guideline but that nonetheless to Commission staff review of the BIA discussed in paragraphs 18–21 of the demonstrate an adequate commitment Publications, Inc. Master Access Second Order, we decline to revise the to educating and informing children. Television Analyzer Database (BIA) on guideline as suggested by these With respect to the recommendation of October 18, 2005, about 873 of the 1,307 commenters. The Commission believes commercial television stations (or about NAB and others regarding reliance on that the revised processing guideline 67 percent) have revenues of $12 certifications from program providers, translates the existing three-hour million or less and thus qualify as small as discussed in paragraph 38 of the item guideline to the digital environment in entities under the SBA definition. We a manner that is both fair to we decline to allow broadcasters to note, however, that in assessing whether broadcasters and meets the needs of the avoid liability by relying on a business concern qualifies as small child audience. Now that digital representations from program providers under the above definition, business broadcasters have the capability to that web addresses meet the four-prong (control) affiliations must be included. significantly increase their overall hours test. We do not expect compliance to be Our estimate, therefore, likely overstates of programming, increasing the amount burdensome, but we will revisit this the number of small entities that might of core programming will not result in issue if we receive evidence that this is be affected by our action, because the an unreasonable burden. For example, if imposing an undue burden on revenue figure on which it is based does a station chooses to broadcast a second broadcasters. not include or aggregate revenues from stream of free video programming Finally, as discussed in paragraph 23 affiliated companies. twenty-four hours a day, seven days a the item adopts NAB’s recommendation, In addition, an element of the week, it can satisfy the new guideline by which was echoed by other definition of ‘‘small business’’ is that the providing merely three additional hours commenters, that FCC Form 398 allow entity not be dominant in its field of per week of core programming—or less broadcasters to certify compliance with operation. We are unable at this time to than two percent of the channel’s 168 define or quantify the criteria that the revised limitation on the repeat of hours of additional weekly would establish whether a specific core digital programming adopted under programming. That additional television station is dominant in its field programming can be aired on the main the multicasting guideline rather than of operation. Accordingly, the estimate program stream or on a multicast requiring broadcasters to identify each of small businesses to which rules may stream, at the discretion of the program episode on Form 398. We will apply do not exclude any television broadcaster. In addition, we believe that require licensees, however, to retain station from the definition of a small a guideline that increases the amount of records sufficient to document the business on this basis and are therefore core programming in a manner roughly accuracy of their certification, including over-inclusive to that extent. Also as proportional to the increase in free records of actual program episodes noted, an additional element of the video programming offered by aired, and to make such documentation definition of ‘‘small business’’ is that the broadcasters is consistent with the available to the public upon request. entity must be independently owned objective of the CTA ‘‘to increase the and operated. We note that it is difficult
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at times to assess these criteria in the revenues of all its affiliates, do not announce the alternate date and time context of media entities and our exceed $250 million in the aggregate. when the preempted show will air. As estimates of small businesses to which Industry data indicate that, of 1,076 part of this policy, we will require all they apply may be over-inclusive to this cable operators nationwide, all but ten networks requesting preemption extent. are small under this size standard. We flexibility to file a request with the Cable and Other Program note that the Commission neither Media Bureau by August 1 of each year Distribution. The Census Bureau defines requests nor collects information on stating the number of preemptions the this category as follows: ‘‘This industry whether cable system operators are network expects, when the program will comprises establishments primarily affiliated with entities whose gross be rescheduled, whether the engaged as third-party distribution annual revenues exceed $250 million, rescheduled time is the program’s systems for broadcast programming. The and therefore we are unable to estimate second home, and the network’s plan to establishments of this industry deliver more accurately the number of cable notify viewers of the schedule change. visual, aural, or textual programming system operators that would qualify as We will presume that non-network received from cable networks, local small under this size standard. stations are complying with the three television stations, or radio networks to hour core programming requirement, Description of Projected Reporting, consumers via cable or direct-to-home and do not need broad preemption Recordkeeping and Other Compliance satellite systems on a subscription or fee relief. basis. These establishments do not Requirements The Second Order retains the rule on generally originate programming The Second Order retains the revised Web site addresses adopted in the 2004 material.’’ The SBA has developed a core programming processing guideline Order with two clarifications: (1) The small business size standard for Cable for digital stations adopted in the 2004 rule applies only when Internet and Other Program Distribution, which Order but clarifies the number of addresses are displayed during program is: all such firms having $13.5 million permissible core program repeats under material or during promotional material or less in annual receipts. According to the guideline. Specifically, we clarify not counted as commercial time; and (2) Census Bureau data for 2002, there were that at least 50 percent of the core if an Internet address for a Web site that a total of 1,191 firms in this category programming counted toward meeting does not meet the four-prong test is that operated for the entire year. Of this the additional programming guideline displayed during a promotion, in total, 1,087 firms had annual receipts of cannot consist of program episodes that addition to counting against the under $10 million, and 43 firms had had already aired within the previous commercial time limits, the promotion receipts of $10 million or more but less seven days on either the station’s main will be clearly separated from than $25 million. Thus, under this size program stream or on another of the programming material. We exempt from standard, the majority of firms can be station’s free digital program streams. the Web site display rules certain PSAs, considered small. We also amend FCC Form 398 to collect which are not commercial matter under 1. Cable Companies and Systems. The the information necessary to enforce the our rules. Specifically, we define PSAs Commission has also developed its own limit on repeats under the revised exempt from the Web site display rules small business size standards, for the guideline. We permit licensees to certify as: PSAs aired on behalf of independent purpose of cable rate regulation. Under on Form 398 that they have complied non-profit or government organizations, the Commission’s rules, a ‘‘small cable with the repeat restriction and do not or media companies in partnership with company’’ is one serving 400,000 or require broadcasters to identify each non-profits or government entities, that fewer subscribers, nationwide. Industry program episode on Form 398. display Web sites not under the control data indicate that, of 1,076 cable Licensees must retain records sufficient of the licensee or cable company. We operators nationwide, all but eleven are to document the accuracy of their also clarify that station identifications small under this size standard. In certification, including records of actual and emergency announcements are not addition, under the Commission’s rules, program episodes aired, and make such subject to the rules governing the a ‘‘small system’’ is a cable system documentation available to the public display of Web site addresses as long as serving 15,000 or fewer subscribers. upon request. The children’s the display is consistent with the Industry data indicate that, of 7,208 programming liaison identified in the purpose of the announcement. Closing systems nationwide, 6,139 systems have FCC Form 398 must be able to provide credits are not exempt from application under 10,000 subscribers, and an documentation to substantiate the of the Web site address rules. additional 379 systems have 10,000– certification if requested. The Commission’s host selling policy 19,999 subscribers. Thus, under this The Second Order repeals the ten prohibits the use of program characters second size standard, most cable percent cap on preemptions of core or show hosts to sell products in systems are small. children’s programming adopted in the commercials during or adjacent to 2. Cable System Operators. The 2004 Order and instead institutes a shows in which the character or host Communications Act of 1934, as procedure similar to that used by the appears. The Second Order adopts the amended, also contains a size standard Media Bureau and the Commission following host selling rule with respect for small cable system operators, which following adoption of the 1996 to Web site addresses: children’s television Order whereby is ‘‘a cable operator that, directly or Entities subject to commercial time limits through an affiliate, serves in the networks sought informal approval of under the Children’s Television Act (‘‘CTA’’) aggregate fewer than 1 percent of all their preemption plans each year. Under will not display a Web site address during or subscribers in the United States and is the policy formerly developed by the adjacent to a program if, at that time, on not affiliated with any entity or entities Commission staff, a program counted as pages that are primarily devoted to free whose gross annual revenues in the preempted only if it was not aired in a noncommercial content regarding that aggregate exceed $250,000,000.’’ The substitute time slot (otherwise known as specific program or a character appearing in Commission has determined that an a ‘‘second home’’) with an on-air that program: (1) Products are sold that feature a character appearing in that program; operator serving fewer than 677,000 notification of the schedule change or (2) a character appearing in that program subscribers shall be deemed a small occurring at the time of preemption is used to actively sell products. operator, if its annual revenues, when during the previously scheduled To clarify, this rule does not apply to: (1) combined with the total annual episode. The on-air notification must Third-party sites linked from the companies’
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web pages; (2) on-air third-party certification on Form 398. This step will published in the Federal Register. See advertisements with Web site references to make compliance with the rules easier 5 U.S.C. 604(b). third-party Web sites; or (3) pages that are for all broadcasters, including smaller List of Subjects primarily devoted to multiple characters broadcasters. The Commission from multiple programs. considered, but rejected, the approach 47 CFR Part 73 The limitation on the duration of of requiring broadcasters to identify Television. advertising in children’s programming each program episode on the Form 398. of 101⁄2 minutes per hour on weekends That approach, if adopted, would have 47 CFR Part 76 and 12 minutes per hour on weekdays imposed a greater burden on Cable television. applies to ‘‘commercial matter.’’ Prior to broadcasters. the 2004 Order, the term ‘‘commercial The Second Order also lifts the cap on Federal Communications Commission. matter’’ was defined to exclude certain the number of preemptions of core Marlene H. Dortch, types of program interruptions, programs adopted in the 2004 Order and Secretary. including promotions of upcoming instead returns to the prior practice of programs that do not mention sponsors. permitting networks that need Rule Changes The 2004 Order revised the definition of scheduling flexibility to accommodate I For the reasons discussed in the ‘‘commercial matter’’ to include sports and other programming to request preamble, the Federal Communications promotions of television programs or such flexibility from the Media Bureau. Commission amends 47 CFR parts 73 video programming services other than This change should help all and 76 as follows: children’s educational and broadcasters, including small informational programming. The revised broadcasters, by providing more PART 73—RADIO BROADCAST definition applies to analog and digital scheduling flexibility. The Commission SERVICES broadcasters and to cable operators. considered, but rejected, keeping the The Second Order revises the cap on the number of preemptions as I 1. The authority citation for part 73 definition of ‘‘commercial matter’’ to adopted in the 2004 Order, which continues to read as follows: exclude (1) promotions for any would have been more burdensome to Authority: 47 U.S.C. 154, 303, 334, and children’s or other age-appropriate broadcasters. 336. programming appearing on the same In addition, the Second Order also I channel, and (2) promotions for revises the definition of ‘‘host selling’’ 2. Section 73.670 is amended by children’s educational and adopted in the 2004 Order with respect revising paragraph (b) introductory text informational programming appearing to Web site address displays in and paragraph (c), adding paragraph (d), on any channel. children’s programming. The revised and revising Note 1 to read as follows (Note 2 remains unchanged): Steps Taken To Minimize Significant definition is less restrictive than that Impact on Small Entities, and adopted in 2004 and permits the sale of § 73.670 Commercial limits in children’s Significant Alternatives Considered merchandise featuring a program-related programs. character in parts of the Web site that The RFA requires an agency to * * * * * are sufficiently separated from the (b) The display of Internet Web site describe any significant, specifically program itself to protect children from small business, alternatives that it has addresses during program material or the unique impact of host selling. This promotional material not counted as considered in reaching its proposed change should provide more flexibility approach, which may include the commercial time is permitted only if the to all broadcasters and cable operators, Web site: following four alternatives (among including smaller entities, and should others): ‘‘(1) The establishment of be less burdensome to all affected * * * * * differing compliance or reporting entities. (c) If an Internet address for a Web requirements or timetables that take into Another change made in the Second site that does not meet the test in account the resources available to small Order that will ease the burden on all paragraph (b) of this section is displayed entities; (2) the clarification, entities in complying with the rules is during a promotion in a children’s consolidation, or simplification of the change in the definition of program, in addition to counting against compliance and reporting requirements ‘‘commercial matter.’’ The revised the commercial time limits in paragraph under the rule for such small entities; definition provides additional flexibility (a) of this section the promotion must be (3) the use of performance rather than for broadcasters and cable operators and clearly separated from program material. design standards; and (4) an exemption permits them to air program promotions (d)(1) Entities subject to commercial from coverage of the rule, or any part that would not have been permitted time limits under the Children’s thereof, for such small entities.’’ under the rule adopted in 2004. Television Act shall not display a Web Several steps were taken to minimize site address during or adjacent to a the impact on small entities. As noted Report to Congress program if, at that time, on pages that above, the Second Order adopts the The Commission will send a copy of are primarily devoted to free alternative recommended by NAB and the Second Order, including this FRFA, noncommercial content regarding that others that broadcasters be permitted to in a report to be sent to Congress and specific program or a character certify on FCC Form 398 their the Government Accountability Office appearing in that program: compliance with the limit on the pursuant to the Congressional Review (i) Products are sold that feature a number of repeats of digital core Act, see 5 U.S.C. 801(a)(1)(A). In character appearing in that program; or programming under the revised addition, the Commission will send a (ii) A character appearing in that processing guideline. See paragraph 23, copy of the Second Order, including program is used to actively sell supra. Thus, broadcasters will not be this FRFA, to the Chief Counsel for products. obligated to identify each program Advocacy of the Small Business (2) The requirements of this paragraph episode on Form 398, but will be Administration. See 5 U.S.C. 604(b). A do not apply to: required to retain documentation copy of the Second Order and FRFA (or (i) Third-party sites linked from the sufficient to substantiate the summaries thereof) will also be companies’ Web pages;
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(ii) On-air third-party advertisements commercial time is permitted only if the DEPARTMENT OF COMMERCE with Web site references to third-party Web site: National Oceanic and Atmospheric Web sites; or * * * * * Administration (iii) Pages that are primarily devoted (c) If an Internet address for a Web to multiple characters from multiple site that does not meet the test in programs. 50 CFR Part 635 paragraph (b) of this section is displayed Note 1: Commercial matter means air time during a promotion in a children’s [I.D. 102606C] sold for purposes of selling a product or program, in addition to counting against service and promotions of television Atlantic Highly Migratory Species; programs or video programming services the commercial time limits in paragraph Atlantic Bluefin Tuna Fisheries other than children’s or other age-appropriate (a) of this section the promotion must be programming appearing on the same channel clearly separated from program material. AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and or promotions for children’s educational and (d)(1) Entities subject to commercial informational programming on any channel. Atmospheric Administration (NOAA), time limits under the Children’s Commerce. Television Act shall not display a Web * * * * * ACTION: Temporary rule; inseason site address during or adjacent to a retention limit adjustment. I 3. Section 73.671 is amended by program if, at that time, on pages that revising paragraph (e)(3) and by are primarily devoted to free SUMMARY: NMFS has determined that removing paragraph (f) to read as noncommercial content regarding that the daily Atlantic bluefin tuna (BFT) follows: specific program or a character retention limits for the Atlantic tunas § 73.671 Educational and informational appearing in that program: General category should be adjusted to programming for children. (i) Products are sold that feature a provide reasonable opportunity to harvest the General category November * * * * * character appearing in that program; or through January time-period subquota. (e) * * * (ii) A character appearing in that Therefore, NMFS increases the daily (3) For purposes of the guideline program is used to actively sell BFT retention limits for the entire described in paragraph (e)(2) of this products. month of November, including previous section, at least 50 percent of the core (2) The requirements of this paragraph scheduled Restricted Fishing Days programming counted toward meeting do not apply to: (RFDs), to provide enhanced the additional programming guideline commercial General category fishing (i) Third-party sites linked from the cannot consist of program episodes that opportunities in all areas while companies’ Web pages; had already aired within the previous minimizing the risk of an overharvest of seven days on either the station’s main (ii) On-air third-party advertisements the General category BFT quota. program stream or on another of the with Web site references to third-party DATES: The effective dates for the BFT station’s free digital program streams. Web sites; or daily retention limits are provided in This requirement does not apply to any (iii) Pages that are primarily devoted Table 1 under SUPPLEMENTARY program stream that merely time shifts to multiple characters from multiple INFORMATION. the entire programming line-up of programs. FOR FURTHER INFORMATION CONTACT: Brad another program stream and, during the McHale, 978–281–9260. digital transition, to core programs aired (e) The requirements of this section on both the analog station and a digital shall not apply to programs aired on a SUPPLEMENTARY INFORMATION: program stream. broadcast television channel which the Regulations implemented under the cable operator passively carries, or to authority of the Atlantic Tunas * * * * * access channels over which the cable Convention Act (16 U.S.C. 971 et seq.) PART 76—MULTICHANNEL VIDEO operator may not exercise editorial and the Magnuson-Stevens Fishery AND CABLE TELEVISION SERVICE control, pursuant to 47 U.S.C. 531(e) Conservation and Management Act and 532(c)(2). (Magnuson-Stevens Act; 16 U.S.C. 1801 et seq.) governing the harvest of BFT by I 4. The authority citation for part 76 Note 1 to § 76.225: Commercial matter continues to read as follows: persons and vessels subject to U.S. means air time sold for purposes of selling jurisdiction are found at 50 CFR part Authority: 47 U.S.C. 151, 152, 153, 154, a product or service and promotions of 635. The 2006 BFT fishing year began 301, 302, 303, 303a, 307, 308, 309, 312, 317, television programs or video programming on June 1, 2006, and ends May 31, 2007. 325, 338, 339, 503, 521, 522, 531, 532, 533, services other than children’s or other age- The final initial 2006 BFT specifications 534, 535, 536, 537, 543, 544, 544a, 545, 548, appropriate programming appearing on the and General category effort controls 549, 552, 554, 556, 558, 560, 561, 571, 572, same channel or promotions for children’s were published on May 30, 2006 (71 FR and 573. educational and informational programming 30619). These final specifications on any channel. I 5. Section 76.225 is amended by divided the General category quota revising paragraphs (b) introductory * * * * * among three subperiods (June through text, (c), and (d), by adding paragraph [FR Doc. E6–18401 Filed 10–31–06; 8:45 am] August, the month of September, and October through January) in accordance (e), and by revising Note 1 to § 76.225 BILLING CODE 6712–01–P to read as follows: with the Highly Migratory Species Fishery Management Plan (1999 FMP) § 76.225 Commercial limits in children’s published in 1999 (May 29, 1999; 64 FR programs. 29090), and implementing regulations at * * * * * § 635.27. The final initial 2006 BFT (b) The display of Internet Web site specifications increased the General addresses during program material or category retention limit to three fish for promotional material not counted as the June though August time-period, as
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well as established the following fishing opportunities while minimizing December, and January of the following General category Restricted Fishing Day the risk of exceeding available quota. On year. The effective date of these time- (RFD) schedule: all Saturday and October 2, 2006, NMFS published a periods and their associated subquota is Sundays from November 18, 2006, final rule implementing the November 1, 2006. through January 31, 2007, and Thursday Consolidated Highly Migratory Species November 23, 2006, and Monday Fishery Management Plan (HMS FMP) Daily Retention Limits December 25, 2006, inclusive. Due to (71 FR 58058). Contained in the HMS Pursuant to this action and the final the large amount of available quota and FMP is a revised General category time- initial 2006 BFT specifications, noted the low catch rates, NMFS extended the period subquota allocation scheme that above, the daily BFT retention limits for three-fish retention limit through has divided the coastwide General September (71 FR 51529, August 30, category into the following five distinct Atlantic tunas General category are as 2006) and October (71 FR 58287, time-periods; June through August, follows: October 3, 2006) respectively to enhance September, October and November,
TABLE 1. EFFECTIVE DATES FOR RETENTION LIMIT ADJUSTMENTS
Permit Category Effective Dates Areas BFT Size Class Limit
General October 1, 2006, through October 31, All Three BFT per vessel per day/trip, meas- 2006, inclusive uring 73 inches (185 cm) curved fork length (CFL) or larger
November 1, 2006, through November All Three BFT per vessel per day/trip, meas- 30, 2006, inclusive uring 73 inches (185 cm) curved fork length (CFL) or larger
December 1, 2006, through January 31, All One BFT per vessel per day/trip, meas- 2007, inclusive uring 73 inches (185 cm) CFL or larger
Adjustment of General Category Daily be landed through November 30, 2006. the latter Fall and Winter months, Retention Limits This projection would bring June particularly off southern states. If the fishery was to perform at these past Under § 635.23(a)(4), NMFS may though November landings to levels with high landings rates increase or decrease the General approximately 123.5 mt, resulting in an (although not witnessed during the category daily retention limit of large underharvest of approximately 917.7 winter of 2005/2006), it may alleviate medium and giant BFT over a range mt. The October 2, 2006, final rule concern of excessive roll-overs from one from zero (on RFDs) to a maximum of established stand-alone General fishing year to the next, but raises the three per vessel to allow for a reasonable category time-periods for the months of December and January. Each of these possibility of unprecedented, and opportunity to harvest the quota for potentially unsustainable, catch rates BFT. As part of the final specifications time-periods are allocated a portion of the coastwide General category, thereby during the winter fishery. on May 30, 2006 (71 FR 30619), NMFS The final initial 2006 BFT adjusted the commercial daily BFT ensuring fishing opportunities are provided in years where high catch rates specifications scheduled a number of retention limit, in all areas, for those RFDs for the month of November, are experienced. The quota carryover vessels fishing under the General including all Saturdays and Sundays, as from the previous time-period category quota, to three large medium or well as Thursday November 23, 2006. subquotas, combined with the newly giant BFT, measuring 73 inches (185 These RFDs were designed to provide cm) or greater curved fork length (CFL), established December and January time- for an extended late season, south per vessel per day/trip. This retention period subquota allocations, would Atlantic BFT fishery for the commercial limit, which was to remain in effect allow for approximately 1,039.8 mt to be handgear fishermen in the General through August 31, 2006, inclusive, was harvested through January 31, 2007. In category. For the reasons referred to extended through September and combination with the subquota rollover above, NMFS has determined that the October through separate actions filed from previous time-periods, scheduled scheduled November RFDs are no with the Federal Register. From RFDs, current catch rates, and the daily longer required to meet their original November 1, 2006, through January 31, retention limit reverting to one large purpose, and may in fact exacerbate low 2007, inclusive, the General category medium or giant BFT per vessel per day catch rates. Therefore, NMFS daily BFT retention limit was scheduled on November 1, 2006, NMFS anticipates determined an increase in the General to revert to one large medium or giant the full October and November time- category daily BFT retention limit on BFT per vessel per day/trip. period subquota will not be harvested. those previously established RFDs for The June through August, September, Adding an excessive amount of unused the month of November is warranted. and soon to be effective October and quota from one time-period subquota to NMFS has selected these days in order November time-period subquota the subsequent time-period subquota is to give adequate advance notice to allocations for the 2006 fishing year undesirable because it effectively fishery participants. While catch rates total approximately 1,041.2 metric tons changes the time-period subquota have continued to be low so far this (mt). As of October 23, 2006, 94.5 mt allocation percentages established in the season, NMFS recognizes that they may have been landed in the General HMS FMP and may contribute to increase at any time late in the season. category and catch rates are less than 1.0 excessive carry-overs to subsequent In order to ensure equitable fishing mt per day. If catch rates remain at fishing years. In the past, however, the opportunities in all areas, NMFS has not current levels and RFDs remain as fishery has had the capability of waived the RFDs scheduled in scheduled, approximately 29 mt would increasing landings rates dramatically in December and January at this time. If
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catch rates continue to be low, some or Monitoring and Reporting on the fishing grounds, the migratory all of the remaining previously NMFS selected the daily retention nature of this species, and the regional scheduled RFDs may be waived as well. limits and their duration after variations in the BFT fishery. Therefore, based on a review of dealer examining current and previous fishing Adjustment of retention limits, reports, daily landing trends, available year catch and effort rates, taking into including waiving previously scheduled quota, revised time-periods, and the consideration public comment on the RFDs in the month of November, is also availability of BFT on the fishing annual specifications and inseason necessary to avoid excessive quota grounds, NMFS has determined that an management measures for the General rollovers to subsequent General category time-period subquotas. Affording prior increase in the General category daily category received during the 2006 BFT notice and opportunity for public BFT retention limit effective from quota specifications rulemaking process, comment to implement these retention November 1, 2006, through November and analyzing the available quota for the limits is impracticable as it would 30, 2006, inclusive of previously 2006 fishing year. NMFS will continue preclude NMFS from acting promptly to scheduled RFDs for the month of to monitor the BFT fishery closely through dealer landing reports, the allow harvest of BFT that are still November, is warranted. Thus, the available on the fishing grounds. General category daily retention limit of Automated Landings Reporting System, state harvest tagging programs in North Analysis of available data shows that three large medium or giant BFT per the General category BFT retention limit vessel per day/trip (see Table 1) is Carolina and Maryland, and the Large Pelagics Survey. Depending on the level may be increased for the Atlantic tuna extended through November 30, 2006, of fishing effort and catch rates of BFT, General and HMS Charter/Headboat including all Saturdays and Sundays of NMFS may determine that additional permit holders with minimal risks of November as well as Thursday retention limit adjustments are exceeding the International Commission November 23, 2006. From December 1, necessary to ensure available quota is for the Conservation of Atlantic Tunas 2006, through January 31, 2007, not exceeded or, to enhance scientific allocated quota. inclusive, the General category default data collection from, and fishing Delays in increasing the retention daily BFT retention limit will be one opportunities in, all geographic areas. limits would be contrary to the public large medium or giant BFT per vessel Closures or subsequent adjustments to interest. Limited opportunities to per day/trip will apply, unless further the daily retention limits, if any, will be harvest the respective quotas may have action is taken. published in the Federal Register. In negative social and economic impacts to NMFS anticipates that with a addition, fishermen may call the U.S. fishermen that either depend on combination of the default retention Atlantic Tunas Information Line at (888) catching the available quota within the limit starting on December 1, 2006, and 872–8862 or (978) 281–9260, or access time-periods designated in the HMS the large amount of General category the internet at www.hmspermits.gov, for FMP, or depend on multiple BFT quota available, there will be sufficient updates on quota monitoring and retention limits to attract individuals to quota for the coastwide General category retention limit adjustments. book charters. For both the General and the HMS Charter/Headboat sectors, the season to extend through the winter Classification months and allow for a southern retention limits must be adjusted as Atlantic fishery to take place with The Assistant Administrator for expeditiously as possible so the minimal risk of landings exceeding NMFS (AA), finds that it is impacted sectors can benefit from the available quota. However, to reduce the impracticable and contrary to the public adjustment. risks of excessive landings rates interest to provide prior notice of, and Therefore, the AA finds good cause throughout December and January, an opportunity for public comment on, under 5 U.S.C. 553(b)(B) to waive prior NMFS has determined it necessary to this action for the following reasons: notice and the opportunity for public NMFS has recently become aware of only extend the three BFT daily comment. For all of the above reasons, increased availability of large medium retention limit for the one month of and because this action relieves a and giant BFT off southern New November and will re-examine the need restriction (i.e., current default retention England and southern Atlantic fishing to further extend the increased bag limit limit is one fish per vessel/trip but this grounds from fishing reports and action increases that limit and allows prior to newly established December landings data from dealers. This and January time-periods based on retention of more fish), there is also increase in abundance provides the good cause under 5 U.S.C. 553(d) to landings rates and other fishery potential to increase General category information. waive the 30-day delay in effectiveness. landings rates if fishery participants are This action is being taken under 50 This adjustment is intended to authorized to harvest three large CFR 635.23(a)(4) and is exempt from provide a reasonable opportunity to medium or giant BFT per day. Although review under Executive Order 12866. harvest the U.S. landings quota of BFT landings to date have been low (i.e., less while maintaining an equitable Authority: 16 U.S.C. 971 et seq. and 1801 than one mt per day) there is the et seq. distribution of fishing opportunities, to potential for increased availability of help achieve optimum yield in the BFT during the Fall to allow for an Dated: October 26, 2006. General category BFT fishery, to collect increase in fishery landing rates. The Alan D. Risenhoover, a broad range of data for stock regulations implementing the HMS FMP Director, Office of Sustainable Fisheries, monitoring purposes, and to be provide for inseason retention limit National Marine Fisheries Service. consistent with the objectives of the adjustments to respond to the [FR Doc. 06–9007 Filed 10–27–06; 2:36 pm] HMS FMP. unpredictable nature of BFT availability BILLING CODE 3510–22–S
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Proposed Rules Federal Register Vol. 71, No. 211
Wednesday, November 1, 2006
This section of the FEDERAL REGISTER Washington, DC 20555. Attention: Telephone: 301–415–7163 or Toll-Free: contains notices to the public of the proposed Rulemaking and Adjudications staff. 1–800–368–5642 or e-mail: issuance of rules and regulations. The E-mail comments to: [email protected]. If [email protected]. purpose of these notices is to give interested you do not receive a reply e-mail SUPPLEMENTARY INFORMATION: persons an opportunity to participate in the confirming that we have received your rule making prior to the adoption of the final comments, contact us directly at (301) Background rules. 415–1966. You may also submit The NRC has received a petition for comments via the NRC’s rulemaking rulemaking dated September 10, 2006, NUCLEAR REGULATORY Web site at http://ruleforum.llnl.gov. submitted by E. Russell Ritenour, Ph.D. COMMISSION Address comments about our (petitioner) on behalf of the American rulemaking Web site to Carol Gallagher, Association of Physicists in Medicine. 10 CFR Part 35 (301) 415–5905; (e-mail [email protected]). The petitioner requests that the NRC Comments can also be submitted via the [Docket No. PRM–35–20] amend 10 CFR part 35, ‘‘Medical Use of Federal eRulemaking Portal Byproduct Material.’’ Specifically, the E. Russell Ritenour, Ph.D.; Receipt of http:www.regulations.gov. petitioner requests that 10 CFR 35.57, Petition for Rulemaking Hand deliver comments to 11555 ‘‘Training for experienced Radiation Rockville Pike, Rockville, Maryland, Safety Officer, teletherapy or medical AGENCY: Nuclear Regulatory between 7:30 am and 4:15 pm on physicist, authorized medical physicist, Commission. Federal workdays. authorized user, nuclear pharmacist, Publicly available documents related ACTION: Petition for rulemaking; Notice and authorized nuclear pharmacist’’ be to this petition may be viewed of receipt. revised to recognize medical physicists electronically on the public computers certified by either the American Board SUMMARY: The Nuclear Regulatory located at the NRC Public Document of Radiology (ABR) or the American Commission (NRC) has received and Room (PDR), O1 F21, One White Flint Board of Medical Physics (ABMP) on or requests public comment on a petition North, 11555 Rockville Pike, Rockville, before October 24, 2005, as for rulemaking dated September 10, Maryland. The PDR reproduction ‘‘grandfathered for the modalities that 2006, filed by E. Russell Ritenour, Ph.D. contractor will copy documents for a (petitioner) on behalf of the American they practiced as of October 24, 2005.’’ fee. Selected documents, including The NRC has determined that the Association of Physicists in Medicine comments, may be viewed and petition meets the threshold sufficiency (AAPM). The petition has been downloaded electronically via the NRC requirements for a petition for docketed by the NRC and has been rulemaking Web site at http:// rulemaking under 10 CFR 2.802. The assigned Docket No. PRM–35–20. The ruleforum.llnl.gov. petition has been docketed as PRM–35– petitioner is requesting that the NRC Publicly available documents created 20. The NRC is soliciting public amend the regulations that govern or received at the NRC after November comment on the petition for rulemaking. medical use of byproduct material to 1, 1999 are also available electronically revise what it calls the ‘‘grandfather’’ at the NRC’s Electronic Reading Room at Discussion of the Petition provision to recognize individual http://www.nrc.gov/reading-rm/adams. The petitioner notes that a revision of diplomates of certifying boards that html. From this site, the public can gain 10 CFR part 35 was published on April were previously named in these entry into the NRC’s Agencywide 24, 2002 (67 FR 20249), that contained regulations before October 25, 2005. Documents Access and Management new T&E requirements for individuals DATES: Submit comments by January 16, System (ADAMS), which provides text to become authorized as an RSO, AMP, 2007. Comments received after this date and image files of NRC’s public authorized user (AU), and authorized will be considered if it is practical to do documents. If you do not have access to nuclear pharmacist (ANP). The so, but assurance of consideration ADAMS or if there are problems in petitioner states that these requirements cannot be given except as to comments accessing the documents located in provide the following three pathways received on or before this date. ADAMS, contact the NRC PDR for an individual to become authorized: ADDRESSES: You may submit comments Reference staff at 1–800–397–4209, 301– (1) An individual may be certified by by any one of the following methods. 415–4737 or by e-mail to [email protected]. a specialty board whose certification Please include the following number A copy of the petition can be found process is recognized by the NRC or an (PRM–35–20) in the subject line of your in ADAMS under accession number Agreement State as meeting NRC’s T&E comments. Comments on petitions ML062620129. A paper copy of the requirements (a recognized board.) submitted in writing or in electronic petition may be obtained by writing to (2) Approval based on an individual’s form will be made available for public Michael T. Lesar, Chief, Rulemaking, T&E (alternate pathway.) inspection. Because your comments will Directives and Editing Branch, Division (3) Identification of an individual’s not be edited to remove any identifying of Administrative Services, Office of listing on an existing NRC or Agreement or contact information, the NRC Administration, U.S. Nuclear Regulatory State license. The petitioner refers to cautions you against including personal Commission, Washington, DC 20555– this option as the ‘‘grandfathering’’ information such as social security 0001. pathway. numbers and birth dates in your FOR FURTHER INFORMATION CONTACT: The petitioner states that the Advisory submission. Michael T. Lesar, Office of Committee on the Medical Uses of Mail comments to: Secretary, U.S. Administration, U.S. Nuclear Regulatory Isotopes (ACMUI) expressed the Nuclear Regulatory Commission, Commission, Washington, DC 20555. concern during briefings on February
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19, 2002, to the Commission on the individuals certified before that date to NUCLEAR REGULATORY proposed amendments to Part 35 that if pursue the alternate pathway. The COMMISSION the requirements for recognition of petitioner believes that the current specialty board certifications were to provision places an undue burden on 10 CFR Part 51 become effective as drafted, there could the medical community and could [Docket No. PRM–51–10] be potential shortages of individuals result in a shortage of AMPs and RSOs. qualified to serve as RSOs, AMPs, The petitioner notes that the AMP is Massachusetts Attorney General; ANPs, and AUs because they would no a recent addition to licenses granted Receipt of Petition for Rulemaking longer meet T&E requirements under the under 10 CFR part 35 and Agreement certification pathway. The petitioner State regulations. The petitioner AGENCY: Nuclear Regulatory also states that the ACMUI was describes the previous regulations Commission. concerned that the specialty boards before the concept of the AMP was ACTION: Petition for rulemaking; notice might be ‘‘marginalized’’ and that introduced as ‘‘inconsistent.’’ The of receipt. ACMUI urged the Commission to petitioner believes this inconsistency address T&E issues associated with was the basis for the requirement to list SUMMARY: The Nuclear Regulatory recognition of specialty boards. The an AMP on licenses. The petitioner also Commission (NRC) is publishing for petitioner notes that the NRC modified states that this requirement specifies public comment a notice of receipt of a the regulation by reinserting Subpart J that an individual must have a petition for rulemaking, dated August until October 24, 2005. statement signed by a ‘‘preceptor AMP’’ 25, 2006, which was filed with the The petitioner requests that 10 CFR attesting that the individual is capable Commission by Diane Curran on behalf 35.57 be amended to recognize medical of acting independently for the specified of Massachusetts Attorney General. The physicists certified by either the ABR or modality. The petitioner indicated that petition was docketed by the NRC on ABMP on or before October 24, 2005, without medical physicists listed on September 19, 2006, and has been ‘‘as grandfathered for the modalties that licenses prior to the new regulation, assigned Docket No. PRM–51–10. The they practiced as of October 24, 2005.’’ there is limited opportunity for a petitioner requests that the NRC revoke The petitioner also states that this medical physicist to serve as a certain regulations in their entirety, and amendment ‘‘should be independent of preceptor. The petitioner believes that revoke other regulations to the extent whether or not a medical physicist was for a medical physicist to be that these regulations, in the petitioner’s named on an NRC or an Agreement ‘‘grandfathered’’ under the new view, state, imply, or assume that the State license as of October 24, 2005.’’ regulation, the individual must have environmental impacts of storing spent The petitioner states that 10 CFR 35.57 been listed on a license as of the nuclear fuel in high-density pools are should also be amended to recognize all effective date of the regulation. The not significant; issue a generic individuals certified by the named petitioner has stated that its suggested determination to clarify that the boards in Subpart J for RSOs who have amendment to § 35.57 would allow environmental impacts of high-density relevant work experience even if an individuals to serve as AMPs or pool storage of spent fuel, will be individual has not been formally preceptor AMPs without having to be considered significant; and require that ‘‘named’’ as an RSO and that these recognized via the ‘‘alternate pathway.’’ any NRC licensing decision concerning individuals ‘‘need to be grandfathered The petitioner also notes that high-density pool storage of spent as an RSO by virtue of certification licensees can specify only one nuclear fuel be accompanied by an providing the appropriate preceptor individual as an RSO under the current environmental impact statement that statement is submitted.’’ provisions, unlike the position of AU for addresses the environmental impacts of The petitioner states that although the which there are typically multiple this storage and alternatives for avoiding AAPM, ABR, and ABMP recognize that individuals named on a license. The or mitigating any environmental it was never the NRC’s intent to deny petitioner believes this makes it more impacts. The petitioner is seeking the recognition to any currently practicing difficult for an AMP or other Board generic treatment of spent fuel pool medical physicist or to minimize the diplomates to have acquired the hazards because he believes that a pool importance of a certifying board, these requisite grandfather status before accident at any operating nuclear power organizations remain concerned about October 24, 2005. The petitioner has plant in the New England and Mid- the NRC staff’s method used to grant stated that the NRC should recognize Atlantic states could significantly affect recognized status to the process used by individuals who were certified by a the health, environmental, and certifying boards. The petitioner is board listed in former Subpart J for economic well-being of Massachusetts. concerned that the effective date § 35.50 (RSO) and § 35.51 (AMP) prior assigned by the staff once it recognizes DATES: Submit comments by January 16, to October 24, 2005. 2007. Comments received after this date a board’s process may force individuals The petitioner concluded that its certified prior to that date to have to will be considered if it is practical to do proposed amendment should be enacted so, but the Commission is able to assure pursue the alternate pathway. The expeditiously to permit individuals petitioner indicates that it has affirmed consideration only for comments certified by the boards listed in Subpart received on or before this date. with the ABR and ABMP that they J to continue practicing medical physics ADDRESSES: believed that existing diplomates’ and serving as RSOs to assure the You may submit comments certifications (i.e., certificates issued continuation of high quality patient on this petition by any one of the before October 25, 2005) would care. following methods. Please include continue to be recognized by the NRC or PRM–51–10 in the subject line of your an Agreement State. The petitioner Dated at Rockville, Maryland, this 26th day comments. Comments on petitions believes that medical physicists have of October 2006. submitted in writing or in electronic demonstrated competence to practice For the Nuclear Regulatory Commission. form will be made available for public through ABR or ABMP certification and Annette L. Vietti-Cook, inspection. Because your comments will remains concerned that the effective Secretary of the Commission. not be edited to remove any identifying date assigned by the NRC staff after it [FR Doc. E6–18363 Filed 10–31–06; 8:45 am] or contact information, the NRC recognizes a board’s process may force BILLING CODE 7590–01–P cautions you against including any
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information in your submission that you of Administrative Services, Office of • Issue a generic determination that do not want to be publicly disclosed. Administration, U.S. Nuclear Regulatory the environmental impacts of high- Mail comments to: Secretary, U.S. Commission, Washington, DC 20555– density pool storage of spent fuel, Nuclear Regulatory Commission, 0001, Telephone: 301–415–7163 or Toll including the environmental impacts of Washington, DC 20555–0001, Attn: Free: 1–800–368–5642. accidents arising from this storage, are Rulemakings and Adjudications Staff. SUPPLEMENTARY INFORMATION: significant. E-mail comments to: [email protected]. If • Background Amend its regulations concerning you do not receive a reply e-mail severe accident mitigation alternatives confirming that we have received your The petitioner states that this petition (SAMAs). The petitioner requests that comments, contact us directly at (301) for rulemaking is a companion to the the body of SAMAs that must be 415–1966. You may also submit contentions filed by the Massachusetts discussed in an environmental impact comments via the NRC’s rulemaking Attorney General on May 26, 2006, statement or related supplement or in an Web site at http://ruleforum.llnl.gov. before the NRC’s Atomic Safety and environmental assessment, under 10 Address questions about our rulemaking Licensing Board (ASLB) in the license CFR 51.53(c)(3)(ii)(L) and Table B–1 Web site to Carol Gallagher (301) 415– renewal proceedings for the Pilgrim and appendix A to 10 CFR part 51 5905; e-mail [email protected]. Comments Vermont Yankee nuclear power plants, (Postulated Accidents: Severe can also be submitted via the Federal and raises the same substantive concern Accidents) must include alternatives to eRulemaking Portal http:// as those contentions, namely, that spent avoid or mitigate the impacts of high- www.regulations.gov. fuel stored in high-density fuel storage density pool fires. Hand deliver comments to: 11555 pools is much more vulnerable to fire • Require that any NRC licensing Rockville Pike, Rockville, Maryland than the NRC’s NUREG–1437, ‘‘Generic decision that approves high-density 20852, between 7:30 a.m. and 4:15 p.m. Environmental Impact Statement for pool storage of spent fuel at a nuclear Federal workdays. (Telephone (301) License Renewal of Nuclear Plants’’ power plant or any other facility must 415–1966). (May 1996) (GEIS) concludes. The be accompanied by an environmental Fax comments to: Secretary, U.S. petitioner states that the petition relies impact statement that addresses the Nuclear Regulatory Commission at (301) on and incorporates by reference the environmental impacts of high-density 415–1101. legal and technical assertions made in pool storage of spent fuel at that nuclear Publicly available documents related the Massachusetts Attorney General’s plant or facility, and presents a to this petition may be viewed contentions. The Massachusetts reasonable array of alternatives for electronically on the public computers Attorney General’s Request for a avoiding or mitigating those impacts. located at the NRC’s Public Document Hearing and Petition to Intervene With Room (PDR), Room O1 F21, One White Respect to Entergy Nuclear Operations Conclusion Flint North, 11555 Rockville Pike, Inc.’s Application for Renewal of the Rockville, Maryland. The PDR Vermont Yankee Nuclear Plant The petitioner asserts that a generic reproduction contractor will copy Operating License can be found in rulemaking would be the most effective documents for a fee. Selected NRC’s ADAMS system at accession means to ensure broad protection of documents, including comments, may number ML061640032. public health and the environment. The be viewed and downloaded The petitioner has filed this petition petitioner states that NRC’s conclusion electronically via the NRC rulemaking in the event that the ASLB rules that regarding the degree of vulnerability of Web site at http://ruleforum.llnl.gov. certain NRC regulations render the high-density spent fuel storage pools to Publicly available documents created petitioner’s contentions inadmissible. fire is contained in numerous NEPA and or received at the NRC after November other licensing documents, and affects 1, 1999, are available electronically at Petitioner’s Request many licensing decisions. the NRC’s Electronic Reading Room at The petitioner requests that the NRC: Consequently, the petitioner asserts that http://www.nrc.gov/reading-rm/ • Revoke 10 CFR 51.53(c)(2) and this NRC conclusion should be revoked adams.html. From this site, the public 51.95(c), and Table B–1 of appendix A ‘‘across the board’’ to ensure that future can gain entry into the NRC’s to 10 CFR part 51; and revoke 10 CFR NRC licensing decisions are not based Agencywide Document Access and 51.23(a) and (b), 51.30(b), 51.53, 51.61, on inadequate consideration of Management System (ADAMS), which and 51.80(b) to the extent that these environmental risks or measures for provides text and image files of NRC’s regulations state, imply, or assume that avoiding or reducing those risks. public documents. If you do not have the environmental impacts of high- Moreover, the petitioner asserts he has access to ADAMS or if there are density pool storage are insignificant an interest in seeking generic treatment problems in accessing the documents and therefore need not be considered in of spent fuel pool hazards because he located in ADAMS, contact the PDR any National Environmental Policy Act believes that a pool accident at any one Reference staff at 1–800–397–4209, 301– of 1969 (NEPA) analysis. The petitioner of the operating nuclear power plants in 415–4737 or by e-mail to [email protected]. assets that the revocation of these the New England or Mid-Atlantic states A copy of the petition can be found regulations, which according to the could have a significant effect on the in ADAMS under accession number petitioner, ‘‘codify’’ the use of the GEIS health, environmental, and economic ML062640409. A paper copy of the by the NRC, is necessary to ensure well-being of the Commonwealth of petition may be obtained by contacting compliance with NEPA in the Pilgrim Massachusetts. Betty Golden, Office of Administration, and Vermont Yankee license renewal Dated at Rockville, Maryland, this 26th day Nuclear Regulatory Commission, cases. In this regard, the petitioner of October 2006. Washington DC, 20555–0001, telephone asserts that new and significant For the Nuclear Regulatory Commission. 301–415–6863, toll-free 1–800–368– information, provided by the petitioner, 5642, or by e-mail [email protected]. shows that spent nuclear fuel stored in Annette L. Vietti-Cook, FOR FURTHER INFORMATION CONTACT: high-density fuel storage pools is much Secretary of the Commission. Michael T. Lesar, Chief, Rulemaking, more vulnerable to fire than the GEIS [FR Doc. E6–18364 Filed 10–31–06; 8:45 am] Directives and Editing Branch, Division concludes. BILLING CODE 7590–01–P
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COMMODITY FUTURES TRADING all persons who are required to register would be achieved.5 Specifically, the COMMISSION as FCMs must become and remain Commission found that comprehensive members of at least one RFA. The and effective self-regulation, and the 17 CFR Part 170 Regulation was adopted in 1983 avoidance of duplicative regulation, RIN 3038–AC29 pursuant to the Commission’s general which are the underlying goals of rulemaking authority in Section 8a(5) of Sections 17(m), (p) and (q) of the Act, Membership in a Registered Futures the Commodity Exchange Act (‘‘Act’’ or would be enhanced by adoption of a Association ‘‘CEA’’),2 as well as the authority in Regulation mandating membership in Sections 17(m), (p) and (q) of the Act,3 an RFA by each person required to be AGENCY: Commodity Futures Trading which govern the registration of futures registered as an FCM. Commission. The Commission further noted that, in associations. Currently, the National ACTION: Proposed rule. the absence of a mandatory membership Futures Association (‘‘NFA’’) is the sole requirement, the Commission would be SUMMARY: The Commodity Futures RFA under Section 17(a) of the Act, and required under relevant provisions of Trading Commission (‘‘Commission’’ or it is also a self-regulatory organization the Act to maintain costly and extensive ‘‘CFTC’’) is proposing to amend its (‘‘SRO’’). direct regulation over those Commission regulations in order to require, subject Section 8a(5) of the Act authorizes the registrants that would not be subject to to the existing exception for certain Commission to promulgate such any self-regulatory jurisdiction.6 In notice registered securities brokers or regulations as, in the judgment of the particular, the Commission would have dealers (‘‘BDs’’), that all persons Commission, are reasonably necessary had to continue to conduct financial, registered with the Commission as to effectuate any of the provisions or to compliance and sales practice futures commission merchants accomplish any of the purposes of the examinations of those FCMs, (‘‘FCMs’’) must become and remain Act. Section 17(m) of the Act permits commodity pool operators (‘‘CPOs’’), members of at least one registered the CFTC to require membership in an commodity trading advisors (‘‘CTAs’’) futures association (‘‘RFA’’). This action RFA if the CFTC determines that and introducing brokers (‘‘IBs’’) that did (‘‘Proposed Amendment’’) is consistent mandatory membership is ‘‘necessary or not join NFA.7 Further, the Commission with the regulatory philosophy appropriate’’ to the purposes and found that the need to maintain these underlying the Commodity Futures objectives of the Act. Section 17(p) of extensive programs for the Modernization Act of 2000 (‘‘CFMA’’). the Act requires each RFA to have a comparatively small number of persons DATES: Comments must be received on comprehensive program to audit the likely to remain subject solely to the or before December 1, 2006. financial and sales practices of its Commission’s direct regulation would ADDRESSES: Comments on the Proposed members and their associated persons. be inefficient and duplicative of the self- Amendment should be sent to Eileen Section 17(q) of the Act requires each regulatory functions for which NFA would be responsible.8 Donovan, Acting Secretary, Commodity RFA to establish such programs ‘‘as Futures Trading Commission, Three In proposing the Regulation, the soon as practicable but not later than Commission requested comment on Lafayette Centre, 1155 21st Street, NW., September 30, 1985.’’ Washington, DC 20581. Comments may whether the Regulation should be be sent by facsimile transmission to When it proposed Regulation 170.15, expanded to apply to all registered (202) 418–5521, or by e-mail to the Commission received 50 comment FCMs, regardless of whether such 9 [email protected]. Reference should be letters, from a wide range of futures persons are required to be registered. made to ‘‘Proposed Regulation professionals and industry 5 Regarding Membership in a Registered representatives. In adopting the See 48 FR 26304 (Jun. 7, 1983), which contains Regulation, the Commission addressed a detailed discussion of the Commission’s response Futures Association.’’ Comments also to the commenters’ concerns. 4 may be submitted by connecting to the concerns raised by two commenters 6 See, e.g., 7 U.S.C. 21(e), which specifies that any Federal eRulemaking Portal at http:// and determined, in accordance with person registered under the Act, who is not a www.regulations.gov and following the Section 8a(5) of the Act, that adoption member of an RFA, ‘‘shall be subject to such other of the Regulation was reasonably rules and regulations as the Commission may find comment submission instructions. necessary to protect the public interest and promote FOR FURTHER INFORMATION CONTACT: necessary to effectuate the purposes of just and equitable principles of trade.’’ Helene D. Schroeder, Special Counsel, the Act and, in particular, to provide a 7 In this regard, the Commission found that the Compliance and Registration Section, means for assuring that the purposes of Regulation, which would operate in conjunction Sections 17(m), (p) and (q) of the Act with NFA’s Bylaw 1101, would assure essentially Division of Clearing and Intermediary complete NFA membership from the universe of Oversight, Commodity Futures Trading commodity professionals: FCMs, CPOs, CTAs and Commission, Three Lafayette Centre, 2 7 U.S.C. 12a(5). The Act can be accessed at IBs. This is because Bylaw 1101 prohibits members 1155 21st Street, NW., Washington, DC http://www.access.gpo.gov/uscode/title7/ from carrying an account, accepting an order or chapter1_.html. handling a transaction in commodity futures 20581, telephone number: (202) 418– 3 7 U.S.C. 21(m), (p) and (q). contracts for or on behalf of any non-NFA member 5450; facsimile number: (202) 418–5528; 4 Only two commenters opposed adoption of the that is required to be registered with the CFTC as and electronic mail: Regulation, the Antitrust Division of the United an FCM, IB, CPO or CTA. [email protected]. States Department of Justice (‘‘Antitrust Division’’), 8 It should be noted that, since the adoption of the and an individual engaged in the business of Regulation, the Commission has been reauthorized SUPPLEMENTARY INFORMATION: financial consulting, whose views were somewhat four times, specifically, in 1986, 1992, 1995 and similar to those of the Antitrust Division. The 2000. The Act also was amended by the I. Background Antitrust Division set forth three basic objections to Telemarketing and Consumer Fraud and Abuse the Regulation: (1) that the proposed regulation was Prevention Act, Pub. L. No. 103–297, 108 Stat. 1545 A. Commission Regulation 170.15 of questionable constitutionality; (2) that the (1994). At no time during reauthorization of the Commission Regulation 170.15 1 Commission lacked authority under the Act to Commission or in connection with amending the adopt the proposed regulation; and (3) that the CEA was the viability of the Regulation challenged (‘‘Regulation’’) provides in general that Commission was compelled to employ other less or questioned. anticompetitive regulatory alternatives pursuant to 9 47 FR 53031, 53031–32 (Nov. 24, 1982). 1 17 CFR 170.15. The Commission’s regulations Section 15 of the Act, because, in the view of the Pursuant to Sections 1a(20) and 4d(a)(1) of the Act, can be accessed at http://www.access.gpo.gov/nara/ Antitrust Division, the proposed regulation would a person must register with the Commission as an cfr/waisidx_06/17cfrv1_06.html. have serious anticompetitive consequences. Continued
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Ultimately, the Commission found that specified in paragraph (b) of the Sections 17(h) and (i) of the Act and expansion was not necessary to ensure Regulation, each person required to Part 171 of the regulations promulgated the effectiveness of NFA’s self- register as an FCM must become and thereunder. RFA rules must be regulatory program. The Commission remain a member of at least one RFA. submitted to the Commission in noted, however, that it might consider As proposed to be revised, the accordance with Section 17(j) of the Act, expanding the Regulation in the future Regulation would require that each and Sections 17(b)(8) and (9) outline the in light of new circumstances or person registered as an FCM—regardless procedures an RFA must follow in experiences with the Regulation.10 As of whether any such person is required proceeding against members and discussed below, in light of the new to be so registered—would need to applicants for membership.15 become and remain a member of at least oversight philosophy advanced by the III. Related Matters CFMA, the Commission believes that one RFA. This would ensure that all the Regulation now should be FCMs come under direct supervision of A. Regulatory Flexibility Act expanded. at least one SRO. The Regulatory Flexibility Act 16 Paragraph (b) of the Regulation requires that agencies, in proposing B. The Commodity Futures currently provides an exception for Modernization Act of 2000 regulations, consider the impact of those persons registered as FCMs pursuant to regulations on small businesses. The In December 2000, the CFMA was the notice registration provisions set Proposed Amendment would affect enacted into law. The CFMA forth in Regulation 3.10(a)(3). The persons that are registered as FCMs, extensively revised the Act and the Commission is not proposing to amend even if they are not required to be so regulatory landscape by adding a more paragraph (b) of the Regulation, which registered. The Commission has flexible regulatory structure based on was added following enactment of the previously established certain core principles for registered entities CFMA. The CFMA established a joint definitions of ‘‘small entities’’ to be used (designated contract markets, regulatory framework for persons by the Commission in evaluating the derivatives transaction execution trading security futures products that impact of its regulations on such entities facilities and derivatives clearing included a notice registration procedure in accordance with the Regulatory organizations). for FCMs and BDs that are fully Flexibility Act.17 The Commission Another relevant change made by the registered, respectively, with the CFTC previously determined that registered CFMA relates to the supervisory or the Securities and Exchange FCMs are not small entities for the function of the Commission. Commission. In this regard, the CFMA purpose of the Regulatory Flexibility Specifically, the CFMA transformed the amended the CEA to specify that any BD Act.18 role of the CFTC from a front-line that is notice registered with the regulator, with responsibility for direct Commission as an FCM is not required B. Cost-Benefit Analysis supervision of the commodity futures to become a member of an RFA.12 Section 15(a) of the Act 19 requires the markets and their participants and Paragraph (b) was added in recognition Commission to consider the costs and professionals, to an oversight agency.11 of this joint regulatory framework and benefits of its action before issuing a In light of this new oversight role and the need to avoid duplicative regulation new regulation under the Act. By its the policies and purposes of the Act, and, further, to make clear that BDs who terms, Section 15(a) does not require the including the goals of effective self- notice register as FCMs (in contrast to Commission to quantify the costs and regulation and the avoidance of persons fully registered as FCMs) are benefits of a new regulation or to duplicative regulation, the Commission not subject to the mandatory provisions determine whether the benefits of the is of the view that all registered FCMs, and thus need not become members of proposed regulation outweigh its costs. regardless of whether any such FCM is an RFA.13 Rather, Section 15(a) simply requires required to be registered as such, must As members of NFA, persons the Commission to ‘‘consider the costs become and remain members of an RFA. registered as FCMs will be subject to the and benefits’’ of its action. minimum financial requirements of Section 15(a) further specifies that II. Proposed Amendment NFA. NFA recently raised its minimum costs and benefits shall be evaluated in Paragraph (a) of the Regulation dollar amount of adjusted net capital for light of five broad areas of market and currently provides that, except as member FCMs to $500,000. FCM public concern: (1) Protection of market members acting as counterparties of participants and the public; (2) FCM if it solicits or accepts orders from customers retail off-exchange foreign currency efficiency, competitiveness, and for the purchase or sale of commodity futures futures or option transactions are financial integrity of futures markets; (3) contracts on or subject to the rules of a contract subject to even higher requirements (at price discovery; (4) sound risk market or derivatives transaction execution facility least $1 million, $5 million if engaged and accepts customer funds related thereto. Some management practices; and (5) other persons register with the Commission as FCMs even in option transactions and $7.5 million public interest considerations. The though they are not required to be registered. For if seeking to qualify certain affiliates as Commission, in its discretion, can example, a person may not currently handle counterparties).14 exchange-traded customer business but may The Commission also notes that nonetheless register as an FCM or maintain its 15 Members of an RFA should not be concerned registration as an FCM if it anticipates handling RFAs, like the other SROs, function as that they will have no right of appeal from an exchange-traded futures business at a later date. frontline regulators of their members adverse action or that mandatory membership in an Additionally, a person may be or become fully subject to Commission oversight. RFA will somehow deprive them of their due registered as a BD and wish to act as counterparty process rights under the Fifth Amendment to the Adverse registration or disciplinary United States Constitution. This issue was raised by to off-exchange foreign currency futures or option actions of an RFA are subject to transactions with retail customers. See 7 U.S.C. the Antitrust Division in connection with the 2(c)(2)(B). The person may fully register as an FCM, Commission review in accordance with adoption of the Regulation, and the Commission although it engages in no other futures or options addressed this concern when it announced business and is not required to register as an FCM 12 See 7 U.S.C. 6f(a)(4)(C)(i). adoption of the Regulation. See 48 FR 26304, 26307–08. or become a member of NFA to act as a 13 See 66 FR 43080 (Aug. 17, 2001). 16 5 U.S.C. 601 et seq. counterparty in these types of off-exchange foreign 14 See NFA Financial Requirements Sections 1(a) 17 currency transactions. and 11(a), which can be accessed at: http://www. 47 FR 18618 (Apr. 30, 1982). 10 48 FR 26304, 26310. nfa.futures.org/nfaManual/ 18 47 FR 18618, 18619. 11 See 7 U.S.C. 5(b). financialRequirements.asp. 19 7 U.S.C. 19(a).
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choose to give greater weight to any one futures commission merchant, unless no above address from 9 a.m. to 5 p.m. e.t., of the five enumerated areas and such futures association is so registered. Monday through Friday, except Federal determine that, notwithstanding its * * * * * holidays. Those desiring notification of costs, a particular regulation is receipt of comments must include a self- Issued in Washington, DC, on October 25, necessary or appropriate to protect the 2006, by the Commission. addressed, stamped postcard or print public interest or to effectuate any of the the acknowledgement page that appears Catherine D. Daniels, provisions or to accomplish any of the after submitting comments purposes of the Act. Assistant Secretary of the Commission. electronically. Anyone is able to search [FR Doc. E6–18270 Filed 10–31–06; 8:45 am] The Proposed Amendment will result the electronic form of all comments in efficiency enhancements for the BILLING CODE 6351–01–P received into any of our dockets by the Commission and should have no effect name of the individual submitting the on the following three enumerated comment (or signing the comment, if areas: (1) Efficiency, competitiveness or DEPARTMENT OF TRANSPORTATION submitted on behalf of an association, business, labor union, etc.). Persons the financial integrity of futures Federal Highway Administration markets; (2) price discovery; and (3) making comments may review DOT’s complete Privacy Act Statement in the sound risk management practices. 23 CFR Part 630 Specifically, the Proposed Amendment, Federal Register published on April 11, if adopted, will require all fully- [FHWA Docket No. FHWA–2006–25203] 2000 (Volume 65, Number 70, Pages 19477–78) or may visit http:// registered FCMs, even those that are not RIN 2125–AF10 required to be registered as FCMs, to dms.dot.gov. become members of an RFA. This will Temporary Traffic Control Devices FOR FURTHER INFORMATION CONTACT: Mr. make such FCMs subject to the self- Chung Eng, Office of Transportation AGENCY: Federal Highway regulatory jurisdiction and oversight Operations, (202) 366–8043; or Mr. Administration (FHWA), DOT. programs of NFA. Raymond W. Cuprill, Office of the Chief After considering these factors, the ACTION: Notice of proposed rulemaking; Counsel, (202) 366–0791, U.S. Commission has determined to propose request for comments. Department of Transportation, Federal the amendment to Regulation 170.15 SUMMARY: The FHWA proposes to Highway Administration, 400 Seventh discussed above. The Commission supplement its regulation that governs Street, SW., Washington, DC 20590. invites public comment on its work zone safety and mobility in Office hours are from 7:45 a.m. to 4:15 application of the cost-benefit provision. highway and street work zones to p.m. e.t., Monday through Friday, Commenters also are invited to submit include conditions for the appropriate except Federal holidays. any data that they may have quantifying use of, and expenditure of funds for, SUPPLEMENTARY INFORMATION: the costs and benefits of the Proposed uniformed law enforcement officers, Electronic Access and Filing Amendment with their comment letters. positive protective measures between List of Subjects in 17 CFR Part 170 workers and motorized traffic, and You may submit or retrieve comments installation and maintenance of online through the Document Authority delegations (Government temporary traffic control devices during Management System (DMS) at: http:// agencies), commodity futures, reporting construction, utility, and maintenance dmses.dot.gov/submit. The DMS is and recordkeeping requirements. operations. The proposed changes are available 24 hours each day, 365 days For the reasons discussed in the intended to decrease the likelihood of each year. Electronic submission and preamble, the Commission proposes to fatalities and injuries to workers who retrieval help and guidelines are amend 17 CFR part 170 as follows: are exposed to motorized traffic available under the help section of the (vehicles using the highway for Web site. PART 170—REGISTERED FUTURES purposes of travel) while working on An electronic copy of this document ASSOCIATIONS Federal-aid highway projects. This may also be downloaded from the Office proposal is in response to section 1110 of the Federal Register’s home page at: 1. The authority citation for part 170 of the Safe, Accountable, Flexible, http://www.archives.gov and the continues to read as follows: Efficient Transportation Equity Act: A Government Printing Office’s Web page Authority: 7 U.S.C. 6p, 12a and 21, as Legacy for Users (SAFETEA–LU), Public at: http://www.access.gpo.gov/nara. amended by the Commodity Futures Law 109–59, 119 Stat. 1227. Background Modernization Act of 2000, Appendix E of DATES: Comments must be received on Pub. L. 106–554, 114 Stat. 2763 (2000). or before January 2, 2007. Increasingly, maintenance and reconstruction of the nation’s highways ADDRESSES: Mail or hand deliver Subpart C—Membership in a are taking place while traffic is comments to the U.S. Department of Registered Futures Association maintained on the facility under repair. Transportation, Dockets Management This has resulted in an increase in the 2. Section 170.15 is amended by Facility, Room PL–401, 400 Seventh exposure of workers to high-speed revising paragraph (a) to read as follows: Street, SW., Washington, DC 20590, or traffic and a corresponding increase in submit electronically at http:// the risk of injury or death for highway § 170.15 Futures commission merchants. dmses.dot.gov/submit or fax comments workers, adding to worker safety (a) Except as provided in paragraph to (202) 493–2251. Alternatively, concerns within an industry where the (b) of this section, each person comments may be submitted via the fatality rate for highway construction registered as a futures commission Federal eRulemaking Portal at http:// workers is already more than double merchant must become and remain a www.regulations.gov. All comments that of other construction workers.1 member of at least one futures should include the docket number that association that is registered under appears in the heading of this 1 Road Construction Hazards Fact Sheet— section 17 of the Act and that provides document. All comments received will Laborers’ Health and Safety Fund of North America, for the membership therein of such be available for examination at the Continued
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Over the last ten years, the number of completed, and limited research has States. While worker exposure is not fatalities in work zones has risen from begun. frequently mentioned as a specific factor 789 in 1995 to 1,068 in 2004.2 Of the The synthesis, entitled ‘‘Positive to be considered in the use of SV/TMAs, 1,068 fatalities in 2004, 89 percent, or Protection Practices in Highway Work it is frequently considered indirectly 953 were either motorists or passengers. Zones’’ and carried out as project 2– based on the type of work operations On average, more than 100 workers are 7(174) under the National Cooperative and the overall characteristics of the killed and over 20,000 are injured each Highway Research Program (NCHRP), roadways and work zones where year in the highway and street was completed in June 2005.5 The agencies recommend its use. The construction industry.3 According to the synthesis indicated that while there overwhelming commonality in the use National Institute for Occupational have been numerous studies addressing of SV/TMAs was found to be for moving Safety and Health, 55 percent of the the overall frequency and severity of and mobile operations, and work zones work related fatalities in the U.S. work zone crashes, available of short duration. In addition to specific highway construction industry between information on work zone intrusion factors to be considered, the decision on 1992 and 1998 were vehicle or crashes and worker injuries remains SV/TMA use also includes some equipment related incidents that very limited. Limited data available elements of engineering judgement or occurred in a work zone. This same from two States indicate that intrusion analysis on occasion. source indicated that highway worker crashes accounted for approximately 9 Besides portable concrete barriers and fatalities where a worker on foot was percent of all work zone crashes; 7 SV/TMAs, several other types of struck by a vehicle were about equally percent of fatal work zone crashes; and positive protection devices were also likely to have been struck by a passing 8 percent of the fatal and serious found to be in use by some State traffic vehicle versus a construction injuries combined. This data also highway agencies, although to a much vehicle. Overall, highway worker safety indicated that worker fatalities lesser extent. These include moveable represents a small but important and accounted for approximately 15 percent concrete barriers, water-filled barriers, increasing part of the work zone safety of fatal work zone intrusion crashes. temporary guardrails, arrestor nets, and problem. While these numbers are relatively finally, a highly mobile longitudinal Recognizing the growing concerns small, they represent an important barrier that is characterized as an associated with injuries to workers component of the work zone safety emerging technology. resulting from work space intrusion picture. The synthesis found that The synthesis found that positive crashes, the FHWA convened a task because of the growing concern with protection is generally considered by force of representatives from the work zone safety, State highway the State highway agencies to be very highway industry in 2002 to further agencies are using a wide range of effective in improving work zone safety, explore these concerns. This positive protection devices and other particularly where workers are collaboration led to the publication of a safety treatments. However, temporary concerned. This was supported by brochure in 2003 that introduces the barrier placement decisions were limited crash data identified in the concept of positive protection as one generally made on a case-by-case basis, synthesis that clearly show TMAs as approach to reducing injuries to workers and while worker safety is sometimes being highly effective in stopping errant and motorists.4 The brochure considered, no specific guidance on this vehicles with relatively few serious recommended a three-step process to subject was found. injuries to occupants of the impacting help reduce fatalities from intrusion Where positive protection is used, the vehicles or the shadow vehicle driver. crashes: (1) Increase awareness of the portable concrete barrier was found to Limited crash data was also found problem and the benefits of using be the temporary barrier most widely confirming that portable concrete positive protection by distributing the used by highway agencies. In fact, it was barriers are highly effective in terms of brochure; (2) synthesize available ‘‘good found to be used to some extent by preventing intrusions into the work practices’’ information, including nearly every State highway agency. In space or other hazardous areas. potential benefits, based on existing spite of this, the review found that there The synthesis concluded that while guidelines, practices, and safety data are few specific situations where positive protection provides a highly from individual agencies; and (3) agencies require the use of portable effective means of protecting workers initiate research to develop concrete barriers in work zones, and and road users from risks associated standardized guidelines for when to use these situations are limited almost with work space intrusions, this positive protection in work zones. To exclusively to the protection of technique is not feasible or practical for all work zone situations. Based on date, steps one and two have been motorists from drop-offs, opposing traffic, and work space hazards rather serious and fatal injuries to vehicle occupants resulting from a number of Washington, DC. It is available at the following than for the protection of workers. In URL: http://wzsafety.tamu.edu/files/factsheet.stm. current practice, the decision on crashes involving portable concrete 2 Fatality Analysis Reporting System (FARS) portable concrete barrier use typically barriers, it was recommended that these maintained by the National Highway Traffic Safety includes some element of engineering barriers should always be installed Administration (NHTSA) and is available at the judgement or analysis. according to accepted design guidelines following URL: http://www.fars.nhtsa.dot.gov/. In addition to portable concrete and only where needed to shield work 3 Department of Health and Human Services (DHHS), National Institute for Occupational Safety barriers, the synthesis review found that zone hazards. and Health (NIOSH) Publication No. 2001–128; the combination of shadow vehicles While the primary focus of the Building Safer Highway Work Zones: Measures to equipped with truck mounted synthesis was on positive protection, Prevent Worker Injuries from Vehicles and attenuators (SV/TMA) is also widely the author also looked at other measures Equipment. It is available at the following URL: http://www.cdc.gov/niosh/2001128.html. used by highway agencies. Information that are being used to reduce exposure 4 Federal Highway Administration (FHWA) on their use was located for all but 11 and reduce intrusion risks. The Brochure on Positive Protection: Reducing Risk, synthesis found that the combined use Protecting Workers and Motorists. This brochure 5 Transportation Research Board (TRB), National of various measures involving other can be obtained from the AASHTO Bookstore Cooperative Highway Research Program (NCHRP) than positive means to reduce worker through the following URL: https:// Project 20–7(174), A Synthesis of Highway bookstore.transportation.org/ Practice—Positive Protection Practices in Highway exposure or reduce intrusion risks, Item_details.aspx?id=247. Work Zones, June 17, 2005. Available in the docket. particularly police enforcement and
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reduced work zone speed limits, may be This research is expected to yield limited to, full road closures; ramp more common than positive protective additional design guidance that can be closures; crossovers; detours; and measures. Common usage of police in used to supplement what currently rolling road blocks during work zone work zones to help enhance safety is exists in the MUTCD and the American setup and removal; supported by findings from a 2001 Association of State Highway and 2. Where exposure cannot be FHWA study indicating that a majority Transportation Officials (AASHTO) adequately managed through the of States use uniformed police officers Roadside Design Guide.8 application of the above strategies, in at least some work zones where there Legislation reduce risk to workers from being struck are particular safety concerns.6 by motorized traffic through the use of However, this study also identified a Section 1110 of the Safe, Accountable, appropriate positive protective devices; number of key issues related to the use Flexible, Efficient Transportation Equity 3. Where exposure and risk reduction of police officers in work zones and Act: A Legacy for Users (SAFETEA–LU) is not adequate, possible, or practical, provided several policy (Public Law 109–59; August 10, 2005), manage risk through the application of recommendations that would help directed the Secretary of Transportation appropriate intrusion countermeasures improve the process as follows: to issue regulations establishing the including, but not limited to, the use of 1. State transportation agencies using conditions for the appropriate use of, uniformed law enforcement officers; Federal-aid funds to assign uniformed and expenditure of funds for, uniformed and law enforcement officers, positive police officers to highway work zones 4. Assure that the quality and protective measures between workers should coordinate with State law adequacy of deployed temporary traffic and motorized traffic, and installation enforcement agencies to develop written control devices are maintained for the and maintenance of temporary traffic policies and guidelines addressing the project duration. control devices during construction, following: This proposed rule would require that a. Situations where uniformed police utility, and maintenance operations. The FHWA is proposing to add a new each agency develop and implement officers are recommended; procedures for considering the need for b. The work zone traffic control subpart K to part 630 in title 23, Code positive protective measures between planning process; and of Federal Regulations (CFR) to c. Officer pay, work procedures implement this statutory requirement. workers and motorized traffic; and a supervision, etc. The FHWA is proposing to emphasize policy addressing the use of uniformed 2. Police officers assigned to federally the need to appropriately consider and law enforcement on Federal-aid funded highway work zones should manage worker safety by establishing projects. The proposed subpart K would receive training on the requirements conditions under which consideration also require that each agency develop contained in the Manual on Uniform for the appropriate use of, and and implement quality standards for Traffic Control Devices (MUTCD).7 expenditure of funds for, uniformed law work zone traffic control devices to help 3. Agencies are encouraged to gather enforcement officers, and positive ensure that the quality and adequacy of data on traffic safety incidents at protective measures between workers temporary traffic control devices on federally funded highway work zones to and motorized traffic would be required construction, utility, and maintenance better assess the effectiveness of work on all Federal-aid highway projects. operations is maintained for the project duration. zone traffic control techniques. Section-by-Section Discussion of 4. In addition to uniformed police Proposed Rule Section 630.1102 Purpose officers, agencies should also consider using new traffic control technologies The FHWA proposes to emphasize the This section would explain that the such as automated enforcement and need to appropriately consider and FHWA is taking this action to establish intrusion alarms to improve safety at manage worker safety as part of the requirements and provide guidance for highway work zones. project development process by addressing worker exposure and risk Related research that is currently providing guidance on key factors to from motorized traffic in order to under way includes the following: consider in reducing worker exposure decrease the likelihood of fatalities or 1. National Cooperative Highway and risk from motorized traffic. The injuries to workers who are exposed to Research Program (NCHRP) study on the FHWA proposes to require that each motorized traffic while working on Design of Construction Work Zones on agency’s policy for the systematic Federal-aid highway projects. High-Speed Highways (Study details consideration and management of work By emphasizing worker safety, the and status can be found at the following zone impacts, to be established in proposed rule would attempt to enhance URL: http://www4.trb.org/trb/crp.nsf/ accordance with the recently updated the safety of both the motorist and All+Projects/NCHRP+3-69); and 23 CFR part 630 subpart J (effective worker during the project. 2. NCHRP study on Traffic October 12, 2007), address the Section 630.1104 Definitions Enforcement Strategies in Work Zones consideration and management of (Study details and status can be found worker safety as follows: This section would provide six at the following URL: http://www4. 1. Avoid or minimize worker definitions to assist in the proper nationalacademies.org/trb/crp.nsf/ exposure to motorized traffic through understanding of the proposed rule. All+Projects/NCHRP+3-80). the application of appropriate positive A definition of ‘‘agency’’ would be protective strategies including, but not provided to clarify that the term 6 FHWA Study on the Use of Uniformed Police includes State and local highway Officers on Federal-aid High Construction Projects, 8 The American Association of State Highway and agencies that receive Federal-aid October 2001. This document can be found at the Transportation Officials (AASHTO) Roadside highway funding. following URL: http://safety.fhwa.dot.gov/wz/ Design Guide presents a synthesis of current nwzaw/toc.htm. information and operating practices related to A definition of ‘‘Federal-aid highway 7 The Manual on Uniform Traffic Control Devices roadside safety and is intended for use as a resource project’’ would be provided to clarify (MUTCD) is the national standard for all traffic document from which individual highway agencies that the term includes construction, control devices installed on any street, highway, or can develop standards and policies. It can be bicycle trail open to public travel. It can be found purchased from AASHTO thru the following URL: maintenance, and utility projects that at the following URL: http://mutcd.fhwa.dot.gov/ https://bookstore.transportation.org/ are funded in whole or in part with index.htm. item_details.aspx?ID=148. Federal-aid highway funds.
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A definition of ‘‘intrusion AASHTO Roadside Design Guide, and longitudinal traffic barriers. The first is countermeasures’’ would be provided to factors including, but not limited to, the speed, specifically, speeds that are 45 differentiate between positive protective following: mph or greater. Of the 1,068 highway measures and other than positive • Project exposure and duration; fatalities in 2004 that occurred in work protective measures. • Traffic speed; zones, 888, or 83 percent, occurred A definition of ‘‘motorized traffic’’ • Traffic volume; where the speed limit was 45 mph or would be provided to differentiate • Distance between traffic and greater.10 The second is the proximity of between the motorized traveling public workers; workers to live traffic. In the presence • versus motorized construction traffic. Geometrics (that adversely impact of speeds of 45 mph and greater, A definition of ‘‘positive protective exposure—e.g., poor sight distance, common sense would indicate that measures’’ would be included because sharp curves); workers within a lane-width of a live the term is defined in section 1110 of • Vehicle mix; • travel lane would be at high risk in SAFETEA–LU. This definition of Type of work (as related to worker terms of exposure, particularly in light positive protective measures would be exposure); • of the many distractions that the average further refined to differentiate between Time of day (e.g., night work); driver faces on a daily basis. A national • Roadway classification; ‘‘positive protective devices’’ and survey of more than 4,000 drivers in • Consequences from/to motorists ‘‘positive protective strategies.’’ 2002 showed that about 14 percent of ‘‘Positive protective devices’’ would resulting from roadway departure; • drivers that have been involved in a be defined as devices that contain and Potential hazard to traffic presented by device itself, and to workers and crash in the past 5 years attribute the redirect vehicles and meet the crash to their being distracted at the crashworthiness evaluation criteria traffic during device placement; 11 • Access to/from work zone; and time. This projects to an estimated 7.2 contained in National Cooperative • million distracted driver crashes over a Highway Research Program (NCHRP) Work area restrictions (including impact on worker exposure). 5 year period. report 350.9 In addition to the critical conditions ‘‘Positive protective strategies’’ would No Escape Routes—The FHWA proposes that at a minimum, positive described, a determination of whether be defined as traffic management or not to use temporary longitudinal strategies that would help avoid crashes protective measures shall be required to separate workers from motorized traffic traffic barriers must also consider the involving workers and motorized traffic work zone duration. The act of placing, by eliminating or diverting traffic from in all work zones conducted under traffic in areas that offer workers no relocating, and removing the barriers the vicinity of the activity area. Such themselves poses a risk to the workers strategies would include the use of full means of escape (e.g., tunnels, bridges, etc.), unless an engineering analysis involved, as well as to the motorists. By road closures, detours, crossovers, and their nature, temporary longitudinal ramp/interchange closures. determines otherwise. Work zones involving no escape areas generally traffic barriers tend to be heavy, bulky Section 630.1106 Positive Protective present a higher level of risk for workers and time consuming to maneuver. Measures and therefore justify special While there is no data pointing to a specific duration as being an ideal This section would require that each consideration for applying positive ‘‘tipping point’’, the previously cited agency’s policy for the systematic protective measures. Rather than the synthesis on Positive Protection consideration and management of work typical approach of determining the Practices in Highway Work Zones zone impacts, to be established in need for positive protective measures indicates that three States specified a accordance with the recently updated based on an engineering analysis, the threshold value, all of which were two 23 CFR part 630 subpart J, address the proposed language would emphasize weeks or more, as one factor in consideration and management of the need to appropriately assess work considering the need for temporary worker safety as part of the overall work zones involving no escape areas by longitudinal traffic barriers. zone safety analysis on Federal-aid requiring that positive protective While the preceding are considered to highway projects. To implement this measures be applied unless an be a critical combination of aspect of the policy, the agency would engineering analysis determines that characteristics, the FHWA recognizes need to develop procedures that begin this would not be necessary or feasible that consideration of other factors and with the consideration of positive based on other project characteristics. project characteristics as part of an protective strategies that would avoid or The FHWA also proposes that the engineering analysis may determine the minimize worker exposure to motorized following minimum criteria for positive best solution to be something other than traffic including, but not limited to, full protective devices shall apply: temporary longitudinal traffic barriers. road closures, ramp closures, Temporary Longitudinal Traffic Similar to the proposed approach for crossovers, detours, and rolling road Barriers—Temporary longitudinal traffic addressing work zones involving no blocks during work zone setup and barriers would be required to protect escape areas, the intent is to emphasize removal. Where the application of workers in stationary work zones lasting the need to appropriately assess work positive protective strategies is not 2 weeks or more when the project zones with the specified critical possible, practical or adequate to design speed is 45 mph or greater, and combination of characteristics by manage exposure, the procedures would the nature of the work requires workers requiring that temporary longitudinal consider the use of appropriate positive to be less than a lane-width from the protective devices, basing need on the edge of an open travel lane, unless an engineering analysis determines 10 Fatality Analysis Reporting System (FARS) project characteristics, the MUTCD, the maintained by the National Highway Traffic Safety otherwise. Administration (NHTSA) and is available at the 9 Transportation Research Board (TRB), National While available information on work following URL: http://www-fars.nhtsa.dot.gov/. Cooperative Highway Research Program (NCHRP) zone intrusion crashes and worker 11 Findings Report for National Survey of Report 350, Recommended Procedures for the injuries is limited, there are two Distracted and Drowsy Driving Attitudes and Safety Performance Evaluation of Highway Behaviors: 2002 submitted to NHTSA March 2003. Features. This document is available at the especially critical conditions where The report can be found at the following URL: following URL: http://onlinepubs.trb.org/ common sense would indicate a strong http://www.nhtsa.dot.gov/people/injury/ onlinepubs/nchrp/nchrp_rpt_350-a.pdf. need for consideration of temporary drowsy_driving1/survey-distractive03/index.htm.
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traffic barriers be applied unless an Section 630.1108 Intrusion fatalities have been found to be related engineering analysis determines that Countermeasures to speeding.13 this would not be necessary or feasible This section would promote the This section would suggest conditions based on other project characteristics. consideration and use of other than that should be considered in Shadow Vehicles and Truck Mounted positive protective measures to reduce determining the need for uniformed law Attenuators—The FHWA proposes that the risk of motorized traffic intrusion enforcement presence in work zones. the determination of need and the into the work space where the provision These include, but are not limited to, priorities for application of protective of positive protective measures is not the following: • shadow vehicles and truck-mounted adequate, possible or practical. A wide Operations occurring on high attenuators shall be consistent with the range of motorized traffic intrusion speed, high volume facilities where guidance included in chapter 9 of the countermeasures would be suggested for workers on foot are exposed to traffic; • AASHTO Roadside Design Guide. The consideration including, but not limited Operations, including temporary AASHTO Roadside Design Guide is a to the following: traffic control device set-up and widely recognized document that is • Effective, credible signing; removal, that occur closely adjacent to intended for use as a resource from • Variable message signs; traffic without positive protection; • which individual highway agencies can • Arrow boards; Operations that require temporary develop standards and policies, making • Warning flags and lights on signs; or frequent shifts in traffic patterns; • modifications to fit local conditions as • Longitudinal and lateral buffer Night operations that may cause appropriate. The guidance in chapter 9 space; special concerns; • • includes suggested priorities for the Trained flaggers and spotters; Locations where traffic conditions • application of protective vehicles and Enhanced flagger station setups; and crash history indicate substantial • truck mounted attenuators that appear Intrusion alarms; problems may be encountered during • to be very well thought out. Rumble strips; the project; • Pace or pilot vehicle; • Operations that require brief closure Accordingly, the FHWA is proposing • that these suggested priorities serve as High quality work zone pavement of all lanes in one or both directions; • the basis upon which decisions on need markings and removal of misleading Operations where traffic queuing is are made. markings; expected; and • Channelizing device spacing • Other work sites where traffic Other Requirements—When positive reduction; conditions present a high risk for protective devices are required by an • Longitudinal channelizing workers and the traveling public. agency, the FHWA proposes to require barricades; While full-time uniformed law that these devices shall be paid for on • Work zone speed limit reduction; enforcement presence in every work a unit pay basis, unless doing so would • Law enforcement; zone is not a reasonable expectation, create a conflict with innovative • Automated speed enforcement policies that result in an increased contracting approaches such as design- (where permitted by State/local laws); driver expectancy for encountering law build or some performance based • Drone radar; enforcement officers in work zones contracts where the contractor is paid to • Worker and work vehicle/ should help improve safety. This may assume a certain risk allocation, and equipment visibility; and be achieved through a combination of payment is generally made on a lump • Worker training. active enforcement (issuing citations) at sum basis. It would be noted that these selected work zones, law enforcement The application of specific positive countermeasures are not mutually presence during high-risk activities, and protective devices would be required to exclusive and should be considered in occasional law enforcement presence at be in accordance with the work zone combination as appropriate. all major work zones. The previously hardware recommendations in Chapter This section would specifically cited FHWA study on the use of 9 of the AASHTO Roadside Design recognize that the countermeasure of uniformed police officers recognized Guide: Traffic Barriers, Traffic Control using uniformed law enforcement that a majority of States already use Devices, and Other Safety Features for officers to maintain an appropriate uniformed police officers in at least Work Zones’ 2002, which is speed through work zones is a common some work zones. However, this study incorporated by reference into 23 CFR practice in many States. Law also identified a number of issues that 630.1012(b)(1) in accordance with 5 enforcement presence in work zones is hinder more widespread and consistent U.S.C. 552(a) and 1 CFR part 51, generally recognized as an element that use of uniformed police officers in work 12 effective October 12, 2007, and is on file helps enhance safety. The presence of zones including: at the National Archives and Record a uniformed law enforcement officer • Some agencies had no policies Administration (NARA). For and marked law enforcement vehicle in regarding the use of officers; information on the availability of this view of the traveling public on a • Where policies existed, they vary material at NARA, call (202) 741–6030, highway project can affect driver widely regarding the circumstances or go to http://www.archives.gov/ behavior, helping to maintain the where officers are used; _ _ _ federal register/code of federal appropriate speeds and increasing • A majority of the agencies did not _ regulations/ibr locations.html. The driver awareness through the work have a training program for officers entire document is available for zone. This is particularly important assigned to work zones; purchase from the American given the large number of distracted • It was not clear whether police Association of State Highway and driver crashes cited previously, and that officers were familiar with the MUTCD Transportation Officials (AASHTO), 444 almost one out of every three traffic in all cases; North Capitol Street, NW., Suite 249, • Chain of command varied widely; Washington, DC 2001 or thru the 12 FHWA Study on the Use of Uniformed Police Officers on Federal-aid Highway Construction following URL: https://bookstore. Projects, October 2001. This document can be found 13 FHWA Safety Facts Flyer, which can be found transportation.org/ at the following URL: http://safety.fhwa.dot.gov/wz/ at the following URL: http://ntl.bts.gov/lib/23000/ item_details.aspx?ID=148. nwzaw/toc.htm. 23100/23121/12SpeedCountsNumbers.pdf.
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• Conflicts exist between an officer’s Transportation Management Plan (TMP) requirements through revisions and/or routine mission versus work zone in order to facilitate the continuity of additions to elements developed under duties; reasonably safe and efficient road user subpart J. • Nearly half of the agencies do not flow and highway worker safety when a include the police when planning a work zone is necessary. Subpart J will National Congestion Initiative project; also require that both the agency and the The proposed rule includes measures • Funding is not always available contractor each designate a trained that could further the goals of the when officers are needed; and person at the project level with the Secretary of Transportation’s new • Officers are not always available responsibility for implementing the National Strategy to Reduce Congestion when needed. TMP. on America’s Transportation Network, To address these issues, this section Typically, the installation and announced on May 16, 2006.15 By would require that each agency, in maintenance of temporary traffic control requiring the development and cooperation with the FHWA, develop a devices are both part of a basic contract implementation of a standard to help policy, or update an existing policy item such as ‘‘traffic control and maintain the quality and adequacy of where appropriate, to address the use of protection,’’ or ‘‘protection and temporary traffic control devices on uniformed law enforcement on work maintenance of traffic.’’ Such items Federal-aid highway projects, we zone operations occurring on Federal- generally also cover maintenance. anticipate that the proposed rule will aid highways. The policy would address Requiring a separate pay item for the help reduce congestion by assuring that the following: installation and maintenance of motorists are always provided with 1. Law enforcement involvement temporary traffic control devices would positive guidance while traveling during major project planning and not be substantially different from development; current practice. The FHWA believes through work zones. 2. Situations where uniformed law that section 1110 of SAFETEA–LU Rulemaking Analysis and Notices enforcement officers are recommended; advocates a requirement that each 3. Duties/expectations of the officers agency develop and adopt a quality All comments received on or before (and how they differ according to standard to help maintain the quality the close of business on the comment different situations); and adequacy of the temporary traffic closing date indicated above will be 4. Active enforcement versus control devices for the duration of the considered and will be available for presence; project. examination in the docket at the above 5. Appropriate work zone safety and The FHWA proposes to emphasize the address. Comments received after the mobility training for the officers; maintenance aspect to ensure that comment closing date will be filed in 6. Communications and chain of quality is sustained throughout the life the docket and will be considered to the command; and of the project by requiring that each extent practicable, but the FHWA may 7. Officer pay. agency develop and implement a quality issue a final rule at any time after the This section would emphasize that standard to help maintain the quality close of the comment period. In when uniformed law enforcement and adequacy of the temporary traffic addition to late comments, the FHWA officers are used, they are to be used as control devices for the duration of the will also continue to file in the docket a supplement to, and not a replacement project. Some agencies are already doing relevant information that becomes for, temporary traffic control devices this, either by developing a variation of, available after the comment closing required by the MUTCD. The conditions or through direct reference to quality date, and interested persons should regarding Federal-aid eligibility for guidelines for work zone traffic control continue to examine the docket for new using uniformed law enforcement devices such as those developed by the material. officers would be clarified in this American Traffic Safety Services section. This section would also address Executive Order 12866 (Regulatory Association (ATSSA).14 This section the issue of funding shortfalls where Planning and Review) and U.S. DOT would also require that there be an payment for officers is part of an Regulatory Policies and Procedures appropriate level of inspection to assure agency-wide program budget by compliance with the quality standards. requiring appropriate consideration of The FHWA has determined anticipated projects to more accurately Compliance Date preliminarily that this action would not be a significant regulatory action within estimate budget needs, and the The FHWA proposes to establish a establishment of contingency provisions the meaning of Executive Order 12866 compliance date of October 12, 2008, for or significant within the meaning of to provide for instances when the initial subpart K. Subpart K is proposed as a budget proves insufficient. U.S. Department of Transportation supplement to subpart J, which governs regulatory policies and procedures. A Section 630.1110 Installation and work zone safety and mobility in recent synthesis of positive protection Maintenance of Temporary Traffic highway and street work zones, and has practices in highway work zones Control Devices an effective date of October 12, 2007. indicates that a wide range of positive Since subpart K is tied to the specific The focus of this section would be to protective devices and other safety components of Subpart J, the proposed ensure that the proper temporary traffic treatments are already being used by compliance date for subpart K would control devices are installed and provide one year from the effective date adequately maintained throughout the 15 Speaking before the National Retail of subpart J to implement the proposed life of the project. Part 6 of the MUTCD Federation’s annual conference on May 16, 2006, in Washington, DC, U.S. Transportation Secretary includes requirements for temporary 14 The American Traffic Safety Services Norman Mineta unveiled a new plan to reduce traffic control. The recently updated Association’s (ATSSA) Quality Guidelines for Work congestion plaguing America’s roads, rail, and regulation in 23 CFR part 630 subpart J Zone Traffic Control Devices uses photos and airports. The National Strategy to Reduce will require the development of a written descriptions to help judge when a traffic Congestion on America’s Transportation Network control device has outlived its usefulness. These includes a number of initiatives designed to reduce Temporary Traffic Control plan, in guidelines are available for purchase from ATSSA transportation congestion. The transcript of these accordance with Part 6 of the MUTCD, through the following URL: http://www.atssa.com/ remarks is available at the following URL: http:// as a component of a broader store/bc_item_detail.jsp?productId=1. www.dot.gov/affairs/minetasp051606.htm.
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State highway agencies.16 This synthesis found that among positive federalism implications to warrant the synthesis found that among positive protective devices, portable concrete preparation of a federalism assessment. protective devices, portable concrete barriers and SV/TMAs were being used The proposed amendments are in barriers and SV/TMAs were being used by nearly every State highway agency. keeping with the Secretary of by nearly every State highway agency. The FHWA believes that positive Transportation’s authority under 23 The proposed regulatory action would protective devices and other safety U.S.C. 109(d), 315, and 402(a) to emphasize the need to consider worker treatments are also widely used by promulgate uniform guidelines to safety as an integral part of each State many local agencies because the promote the safe and efficient use of highway agency’s process for FHWA’s research indicates that local highways. considering and managing the overall agencies usually follow State practice impacts due to work zones. As such, with respect to MUTCD guidance. As Executive Order 13175 (Tribal any additional usage of positive such, any additional usage of positive Consultation) protective devices resulting from the protective devices resulting from the The FHWA has analyzed this proposed action would be incremental proposed action would be incremental proposed action under Executive Order to what many State highway agencies to what many local highway agencies 13175, dated November 6, 2000, and are already using to address work zone are already using to address work zone believes that it would not have safety. In addition, the emphasis on first safety. In addition, the emphasis on first substantial direct effects on one or more considering strategies that would avoid considering strategies that would avoid Indian tribes; would not impose or minimize worker exposure to or minimize worker exposure to substantial direct compliance costs on motorized traffic may decrease the motorized traffic may decrease the Indian tribal governments; and would overall need for positive protective overall need for positive protective not preempt tribal law. The purpose of devices. Accordingly, it is anticipated devices. Accordingly, the FHWA has this proposed rule is to improve worker that the economic impact of this determined that the proposed regulation safety on Federal-aid highway projects, rulemaking would be minimal. would not have a significant economic and would not impose any direct The proposed action is not impact on a substantial number of small compliance requirements on Indian anticipated to adversely affect, in a entities. tribal governments and will not have material way, any sector of the any economic or other impacts on the economy. In addition, the proposed Unfunded Mandates Reform Act of 1995 viability of Indian tribes. Therefore, a action is not likely to interfere with any tribal summary impact statement is not This notice of proposed rulemaking action taken or planned by another required. agency or to materially alter the would not impose unfunded mandates budgetary impact of any entitlements, as defined by the Unfunded Mandates Executive Order 13211 (Energy Effects) grants, user fees, or loan programs. Reform Act of 1995 (Public Law 104–4, Based on the information received in 109 Stat. 48, March 22, 1995). This The FHWA has analyzed this response to this NPRM, the FHWA proposed action would not result in the proposed action under Executive Order intends to carefully consider the costs expenditure by State, local, and tribal 13211, Actions Concerning Regulations and benefits associated with this governments, in the aggregate, or by the That Significantly Affect Energy Supply, rulemaking. Accordingly, comments, private sector, of $128.1 million or more Distribution, or Use. It has been information, and data are solicited on in any one year period to comply with determined that it is not a significant the economic impact of the changes these changes. energy action under that order because described in this document or any Additionally, the definition of it is not a significant regulatory action alternative proposal submitted. ‘‘Federal mandate’’ in the Unfunded under Executive Order 12866 and is not Mandate Reform Act excludes financial likely to have a significant adverse effect Regulatory Flexibility Act assistance of the type in which State, on the supply, distribution, or use of In compliance with the Regulatory local or tribal governments have energy. Therefore, a Statement of Energy Flexibility Act (5 U.S.C. 601–612), the authority to adjust their participation in Effects under Executive Order 13211 is FHWA has evaluated the effects of these the program in accordance with changes not required. proposed changes on small entities. made in the program by the Federal Executive Order 12372 This rule applies to all State and local government. The Federal-aid highway (Intergovernmental Review) highway agencies that use Federal-aid program permits this type of flexibility highway funding in the execution of to the States. Catalog of Federal Domestic their highway program. The proposed Assistance Program Number 20.205, regulatory action would emphasize the Executive Order 13132 (Federalism) Highway Planning and Construction. need to consider worker safety as an This action has been analyzed in The regulations implementing Executive integral part of each agency’s process for accordance with the principles and Order 12372 regarding considering and managing the overall criteria contained in Executive Order intergovernmental consultation on impacts due to work zones on Federal- 13132 dated August 4, 1999, and the Federal programs and activities apply to aid highway projects. As noted FHWA has determined that this this program. previously, a recent synthesis of proposed action would not have a Paperwork Reduction Act positive protection practices in highway substantial direct effect or sufficient work zones indicates that a wide range federalism implications on States that Under the Paperwork Reduction Act of positive protective devices and other would limit the policymaking discretion of 1995 (PRA) (44 U.S.C. 3501, et seq.), safety treatments are already being used of the States and local governments. The Federal agencies must obtain approval by State highway agencies. This FHWA has also determined that this from the Office of Management and proposed rulemaking would not Budget (OMB) for each collection of 16 Transportation Research Board (TRB), National preempt any State law or State information they conduct, sponsor, or Cooperative Highway Research Program (NCHRP) Project 20–7(174), A Synthesis of Highway regulation or affect the States’ ability to require through regulations. The FHWA Practice—Positive Protection Practices in Highway discharge traditional State governmental has determined that this proposed Work Zones, June 17, 2005. Available in the docket. functions and does not have sufficient action does not contain collection
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information requirements for purposes Subpart K—Temporary Traffic Control be established in accordance with 23 of the PRA. Devices CFR 630.1006, shall include the Sec. consideration and management of Executive Order 12988 (Civil Justice 630.1102 Purpose. highway worker safety on Federal-aid Reform) 630.1104 Definitions. highway projects. These procedures 630.1106 Positive Protective Measures. should begin with the consideration of This proposed action meets 630.1108 Intrusion Countermeasures. applicable standards in Sections 3(a) positive protective strategies that would 630.1110 Installation and Maintenance of avoid or minimize worker exposure to and 3(b)(2) of Executive Order 12988, Temporary Traffic Control Devices. Civil Justice Reform, to minimize motorized traffic including, but not Authority: 23 U.S.C. 109(c) and 112; Sec. limited to, full road closures; ramp litigation, eliminate ambiguity, and 1110 of Pub. L. 109–59; 23 CFR 1.32; and 49 reduce burden. closures; crossovers; detours; and CFR 1.48(b). rolling road blocks during work zone Executive Order 13045 (Protection of Subpart K—Temporary Traffic Control setup and removal. Where these Children) Devices strategies are not possible, practical, or adequate to manage exposure, the The FHWA has analyzed this § 630.1102 Purpose. procedures shall consider the use of proposed action under Executive Order appropriate positive protective devices, 13045, Protection of Children from To establish requirements and provide guidance for addressing worker basing need on the project Environmental Health Risks and Safety characteristics, the MUTCD, chapter 9 of Risks. The FHWA certifies that this safety by limiting the exposure and risk from motorized traffic in order to the AASHTO Roadside Design Guide, proposed action would not cause an and factors including, but not limited to, environmental risk to health or safety decrease the likelihood of fatalities or injuries to workers on Federal-aid the following: that may disproportionately affect (1) Project exposure and duration; children. highway projects. This subpart is applicable to all State and local highway (2) Traffic speed; Executive Order 12630 (Taking of (3) Traffic volume; agencies that receive Federal-aid (4) Distance between traffic and Private Property) highway funding. workers; This proposed action would not affect § 630.1104 Definitions. (5) Geometrics (that adversely impact a taking of private property or otherwise For the purposes of this subpart, the exposure—e.g., poor sight distance, have taking implications under following definitions apply: sharp curves); Executive Order 12630, Governmental (6) Vehicle mix; Agency means a State or local (7) Type of work (as related to worker Actions and Interference with highway agency that receives Federal- exposure); Constitutionally Protected Property aid highway funding. (8) Time of day (e.g., night work); Rights. Federal-aid Highway Project means (9) Roadway classification; highway construction, maintenance, National Environmental Policy Act (10) Consequences from/to motorists and utility projects funded in whole or resulting from roadway departure; The agency has analyzed this in part with Federal-aid funds. (11) Potential hazard to traffic proposed action for the purpose of the Intrusion Countermeasures means presented by device itself, and to National Environmental Policy Act of strategies involving the use of other than workers and traffic during device 1969 (42 U.S.C. 4321 et seq.) and has positive protective measures to reduce placement; determined that it would not have any the likelihood of motorized traffic (12) Access to/from work zone; and effect on the quality of the environment. intrusion into the work space. (13) Work area restrictions (including Motorized Traffic means the impact on worker exposure). Regulation Identification Number motorized traveling public. This term (b) At a minimum, positive protective does not include motorized construction measures shall be required to separate A regulation identification number or maintenance traffic. workers from motorized traffic in all (RIN) is assigned to each regulatory Positive Protective Devices means the work zones conducted under traffic in action listed in the Unified Agenda of devices that contain and redirect areas that offer workers no means of Federal Regulations. The Regulatory vehicles and meet the crashworthiness escape (e.g., tunnels, bridges, etc.) Information Service Center publishes evaluation criteria contained in NCHRP unless an engineering analysis the Unified Agenda in April and report 350. determines otherwise. In addition, the October of each year. The RIN contained Positive Protective Measures means following minimum criteria for positive in the heading of this document can be the positive protective devices and protective devices shall apply: used to cross-reference this action with positive protective strategies used to (1) Temporary longitudinal traffic the Unified Agenda. avoid motorized traffic crashes in work barriers shall be used to protect workers List of Subjects in 23 CFR Part 630 zones that can lead to worker injuries in stationary work zones lasting two and fatalities through work space weeks or more when the project design Government contracts, Grant intrusions. speed is 45 mph or greater, and the programs—transportation, Highway Positive Protective Strategies means nature of the work requires workers to safety, Highways and roads, Project the traffic management strategies that be within one lane-width from the edge agreement, Traffic regulations. would help avoid crashes involving of a live travel lane, unless an Issued on: October 25, 2006. workers and motorized traffic by engineering analysis determines J. Richard Capka, eliminating or diverting traffic from the otherwise. vicinity of the activity area. (2) The determination of need and the Federal Highway Administrator. priorities for application of protective In consideration of the foregoing, the § 630.1106 Positive Protective Measures. shadow vehicles and truck-mounted FHWA proposes to add Subpart K to (a) Each agency’s policy for the attenuators shall be consistent with the title 23, Code of Federal Regulations, systematic consideration and guidance included in chapter 9 of the Part 630, as follows: management of work zone impacts, to AASHTO Roadside Design Guide.
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(c) When positive protective devices enforcement presence in work zones enforcement included as part of the are necessary, these devices shall be include, but are not limited to, the project budget shall be on a unit pay paid for on a unit pay basis, unless following: basis. The process for establishing an doing so would create a conflict with (1) Operations occurring on high agency-level program budget shall innovative contracting approaches such speed, high volume facilities where include: as design-build or some performance workers on foot are exposed to traffic; (1) Appropriate consideration of based contracts where the contractor is (2) Operations, including temporary anticipated projects to estimate budget paid to assume a certain risk allocation, traffic control device set-up and needs; and and payment is generally made on a removal, that occur closely adjacent to (2) Contingency provisions to address lump sum basis. Application of specific traffic without positive protection; identified needs should the budget positive protective devices shall be in (3) Operations that require temporary prove insufficient. accordance with chapter 9 of the or frequent shifts in traffic patterns; AASHTO Roadside Design Guide. (4) Night operations that may cause § 630.1110 Installation and Maintenance of special concerns; Temporary Traffic Control Devices. § 630.1108 Intrusion Countermeasures. (5) Locations where traffic conditions To help ensure that the integrity of (a) In situations where the provision and crash history indicate substantial the temporary traffic control is of positive protective measures is not problems may be encountered during sustained after implementation, each adequate, possible or practical, the project; agency shall develop and implement appropriate consideration should be (6) Operations that require brief quality standards to help maintain the given to the use of intrusion closure of all lanes in one or both quality and adequacy of the temporary countermeasures to reduce the risk of directions; traffic control devices for the duration of motorized traffic intrusion into the work (7) Operations where traffic queuing the project. Agencies may choose to space. These countermeasures are not is expected; and adopt quality standards such as those mutually exclusive and should be (8) Other work sites where traffic developed by the American Traffic considered in combination as conditions present a high risk for Safety Services Association (ATSSA).1 appropriate. A wide range of motorized workers and the traveling public. A level of inspection necessary to assure traffic intrusion countermeasures (c) Each agency, in cooperation with compliance with the quality standards should be considered including, but not the FHWA, shall develop a policy shall be provided. limited to: addressing the use of uniformed law [FR Doc. E6–18283 Filed 10–31–06; 8:45 am] (1) Effective, credible signing; enforcement on operations occurring on BILLING CODE 4910–22–P (2) Variable message signs; Federal-aid highways. The policy shall (3) Arrow boards; address the following: (1) Law enforcement involvement (4) Warning flags and lights on signs; DEPARTMENT OF THE INTERIOR (5) Longitudinal and lateral buffer during major project planning and space; development; Bureau of Indian Affairs (6) Trained flaggers and spotters; (2) Situations where uniformed law (7) Enhanced flagger station setups; enforcement officers are recommended; 25 CFR Parts 15, 18, 150, 152, and 179 (8) Intrusion alarms; (3) Duties/expectations of the officers (9) Rumble strips; (and how they differ according to Office of the Secretary (10) Pace or pilot vehicle; different situations); (11) High quality work zone pavement (4) Active enforcement versus 43 CFR Parts 4 and 30 markings and removal of misleading presence; markings; (5) Appropriate work zone safety and RIN 1076–AE59 (12) Channelizing device spacing mobility training for the officers, reduction; consistent with the training Indian Trust Management Reform (13) Longitudinal channelizing requirements in 23 CFR 630.1008(d); AGENCY: Bureau of Indian Affairs, Office barricades; (6) Communications and chain of of the Secretary, Interior. (14) Work zone speed limit reduction; command; and (15) Law enforcement; (7) Officer pay ACTION: Notice of reopening of comment (16) Automated speed enforcement (d) Uniformed law enforcement period for proposed rule. officers shall not be used in lieu of (where permitted by State/local laws); SUMMARY: On August 8, 2006, the (17) Drone radar; temporary traffic control devices Bureau of Indian Affairs (BIA) and the (18) Worker and work vehicle/ required by the Part 6 of the MUTCD. Office of the Secretary proposed to equipment visibility; and Costs associated with the provision of amend several of their regulations (19) Worker training. uniformed law enforcement to help related to Indian trust management (see (b) Among the intrusion protect workers and maintain safe and 71 FR 45173). The purpose of the countermeasures, uniformed law efficient travel through highway work amendments is to further fulfill the enforcement presence in work zones is zones are eligible for Federal-aid Secretary’s fiduciary responsibilities to generally recognized as an element that participation. Federal-aid eligibility federally recognized tribes and enhances safety. The presence of a excludes law enforcement activities that individual Indians and to meet the uniformed law enforcement officer and would normally be expected in and Indian trust management policies in the marked law enforcement vehicle in around highway problem areas view of the motorized traffic on a requiring management of traffic. 1 The American Traffic Safety Services highway project can affect driver Payment for the services of uniformed Association’s (ATSSA) Quality Guidelines for Work behavior, helping to maintain law enforcement in work zones may be Zone Traffic Control Devices uses photos and appropriate speeds and increase driver included as part of the project budget, written descriptions to help judge when a traffic control device has outlived its usefulness. These awareness through the work zone. or be accommodated as part of an guidelines are available for purchase from ATSSA Conditions that should be considered in agency-level program budget. Payment through the following URL: http://www.atssa.com/ determining the need for uniformed law for the use of uniformed law store/bc_item_detail.jsp?productId=1.
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Indian Land Consolidation Act (ILCA), SUPPLEMENTARY INFORMATION: In amendments allow both tribes and as amended by the American Indian developing the final rule, the individual Indians to obtain highly Probate Reform Act of 2004 (AIPRA). Department will consider all comments fractionated interests through a new These amendments address Indian trust received before January 2, 2007. mechanism, created by AIPRA: management issues in the areas of Therefore, if you submitted comments at consolidation by sale (called ‘‘partition probate, probate hearings and appeals, any time before January 2, 2007, you do of highly fractionated lands’’ in AIPRA). tribal probate codes, life estates and not need to resubmit them. Additionally, the new AIPRA future interests in Indian land, the In addition to making plain language mechanisms being incorporated in Indian land title of record, and revisions, the amendments revise the probate regulations will offer conveyances of trust or restricted land. regulations to: opportunities to reduce fractionation • There is also an ‘‘Application for Incorporate AIPRA changes to through the distribution of probate Consolidation by Sale’’ form that is probate: AIPRA created a uniform property. associated with one of these probate code to standardize intestate • Improve service to beneficiaries: amendments. succession rules for trust and restricted Amendments to the Land Titles and This notice reopens the comment property. The uniform probate code Records Office (LTRO) regulations will period for an additional 60 days to reinforces tribal sovereignty by update and standardize LTRO title January 2, 2007. The BIA and Office of eliminating the application of state laws practices and recordation to ensure the Secretary are reopening the comment in the probate of trust and restricted Secretary is able to accurately track and period for an additional 60 days to assets while deferring to approved tribal record accounting of trust and restricted ensure that all interested parties, probate codes. AIPRA also established interest owners, allowing the Secretary including tribes and individual Indians, new mechanisms for consolidating to better serve the beneficiaries. have the opportunity to review the fractionated interests at probate and Amendments to the probate process are proposed rule and prepare their through sale of highly fractionated aimed at facilitating the process to comments. tracts. The proposed amendments to reduce the probate backlog and better probate regulations would implement serve beneficiaries. By clarifying the DATES: The comment period for the AIPRA’s provisions by requiring the requirements and processes for probate, proposed rule published on August 8, additional information needed to approval of tribal probate codes, 2006 (71 FR 45173) is extended to determine heirs and devisees to be obtaining LTRO services and products, January 2, 2007. included in the probate file, and by and conveying trust and restricted ADDRESSES: You may submit comments, establishing the procedures for property, the Department of the Interior identified by the number 1076–AE59, by directional disclaimers, purchases at improves communication and any of the following methods: probate and consolidation agreements. transparency, allowing better service to —Federal rulemaking portal: http:// These regulations continue to refer all beneficiaries. probate cases to OHA. The amendments www.regulations.gov. Follow the Authority: Regulatory amendments to instructions for submitting comments. streamline the OHA process by shortening deadlines to more reasonable these parts are proposed under the general —Web site at www.doitrustregs.com. authority of the American Indian Trust Fund —E-mail: [email protected]. time periods. Amendments to life estate Management Reform Act of 1994, 25 U.S.C. Include the number 1076–AE59 in the provisions reflect AIPRA’s change in the 4021 et seq., and the Indian Land subject line of the message. valuation of a life estate to be ‘‘without Consolidation Act of 2000, as amended by —Fax: (202) 208–5320. Include the regard to waste’’ and base the valuation the American Indian Probate Reform Act of number 1076–AE59 in the subject line on the four-year average Single Life 2004, 25 U.S.C. 2201 et seq. of the message. Factor used by the U.S. Internal Dated: October 13, 2006. —Mail: U.S. Department of the Interior, Revenue Service in Table S of the 7520 Michael D. Olsen, rate schedule, without regard to gender. 1849 C Street, NW., Mail Stop 4141, • Principal Deputy Assistant Secretary—Indian Washington, DC 20240. Promote consolidation (reduce Affairs. fractionation) of interests: Allotments —Hand delivery: Michele Singer, U.S. [FR Doc. E6–18396 Filed 10–31–06; 8:45 am] owned by Indians have become Department of the Interior, 1849 C BILLING CODE 4310–W7–P increasingly fractionated with the Street, NW., Washington, DC 20240. probate of each generation, resulting in Comments on the information the division of the allotment into collection burdens, including comments smaller and smaller interests. These ENVIRONMENTAL PROTECTION on or requests for copies of the amendments meet the policy expressed AGENCY ‘‘Application for Consolidation by Sale’’ by Congress to reduce fractionation (i.e., 40 CFR Part 52 form, are separate from those on the the exponential increase in the number substance of the rule. Send comments of ownership interests in a given parcel [EPA–R08–OAR–2006–0564, FRL–8236–9] on the information collection burdens of land) of tribal and individual Indian to: Interior Desk Officer 1076–AE59, interests in trust and restricted property Approval and Promulgation of Air Office of Management and Budget, e- through the use of several tools. These Quality Implementation Plans; Utah; mail: [email protected]; or 202/ tools include the opportunities for tribes Revisions to the Utah Administrative 395–6566 (fax). Please also send a copy to establish a tribal land consolidation Code; Proposed Rule of your comments to BIA at the location plan; purchase interests in land within AGENCY: Environmental Protection specified under the heading ADDRESSES . their respective jurisdictions when Agency (EPA). FOR FURTHER INFORMATION CONTACT: offered for negotiated sale, gift, or ACTION: Proposed rule. Michele Singer, Counselor to the exchange; make a tribal tract purchase Assistant Secretary—Indian Affairs, (i.e., obtain fractionated interests of non- SUMMARY: EPA is proposing to approve Department of the Interior, 1849 C consenting trust and restricted owners State Implementation Plan (SIP) Street, NW., Mail Stop 4141, under certain circumstances); and unify revisions submitted by the State of Utah Washington, DC 20240, telephone (202) ownership and consolidate interests in on February 7, 2006. These changes to 273–4680. a tract through partition. The the Utah Administrative Code revise
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some minor technical requirements of Please see the direct final rule which FOR FURTHER INFORMATION CONTACT: Utah’s continuous emission monitoring is located in the Rules Section of this William R. Blanton, Jr. CFM, Acting rules and correct several grammatical Federal Register for detailed instruction Section Chief, Engineering Management errors. The intended effect of this action on how to submit comments. Section, Mitigation Division, 500 C is to make federally enforceable those FOR FURTHER INFORMATION CONTACT: Street, SW., Washington, DC 20472, provisions that EPA is proposing to Jeffrey Kimes, Air and Radiation (202) 646–3151. approve. This action is being taken Program, Mailcode 8P–AR, SUPPLEMENTARY INFORMATION: FEMA under section 110 of the Clean Air Act. Environmental Protection Agency proposes to make determinations of In the ‘‘Rules and Regulations’’ (EPA), Region 8, 999 18th Street, Suite section of this Federal Register, EPA is BFEs and modified BFEs for each 200, Denver, Colorado 80202–2466, community listed below, in accordance approving the State’s SIP revision as a (303) 312–6445, kimes.jeffrey @epa.gov. direct final rule without prior proposal with section 110 of the Flood Disaster SUPPLEMENTARY INFORMATION: See the because the Agency views this as a Protection Act of 1973, 42 U.S.C. 4104, information provided in the Direct Final and 44 CFR 67.4(a). noncontroversial SIP revision and action of the same title which is located anticipates no adverse comments. A These proposed BFEs and modified in the Rules and Regulations Section of BFEs, together with the floodplain detailed rationale for the approval is set this Federal Register. forth in the preamble to the direct final management criteria required by 44 CFR rule. If EPA receives no adverse Authority: 42 U.S.C. 7401 et seq. 60.3, are the minimum that are required. comments, EPA will not take further Dated: September 27, 2006. They should not be construed to mean action on this proposed rule. If EPA Carol Rushin, that the community must change any receives adverse comments, EPA will Acting Regional Administrator, Region 8. existing ordinances that are more stringent in their floodplain withdraw the direct final rule and it will [FR Doc. E6–18379 Filed 10–31–06; 8:45 am] not take effect. EPA will address all management requirements. The BILLING CODE 6560–50–P public comments in a subsequent final community may at any time enact rule based on this proposed rule. EPA stricter requirements of its own, or will not institute a second comment pursuant to policies established by other period on this action. Any parties DEPARTMENT OF HOMELAND Federal, state or regional entities. These interested in commenting must do so at SECURITY proposed elevations are used to meet this time. Please note that if EPA the floodplain management Federal Emergency Management requirements of the NFIP and are also receives adverse comment on an Agency amendment, paragraph, or section of used to calculate the appropriate flood insurance premium rates for new this rule and if that provision may be 44 CFR Part 67 severed from the remainder of the rule, buildings built after these elevations are EPA may adopt as final those provisions [Docket No. FEMA–D–7668] made final, and for the contents in these of the rule that are not the subject of an buildings. adverse comment. Proposed Flood Elevation National Environmental Policy Act. DATES: Written comments must be Determinations This proposed rule is categorically received on or before December 1, 2006. AGENCY: Federal Emergency excluded from the requirements of 44 ADDRESSES: Submit your comments, Management Agency (FEMA), CFR part 10, Environmental identified by Docket ID No. EPA–R08– Department of Homeland Security, Consideration. No environmental OAR–2006–0564, by one of the Mitigation Division. impact assessment has been prepared. following methods: ACTION: Proposed rule. Regulatory Flexibility Act. As flood —www.regulations.gov. Follow the on- elevation determinations are not within line instructions for submitting SUMMARY: Technical information or the scope of the Regulatory Flexibility comments. comments are requested on the Act, 5 U.S.C. 601–612, a regulatory —E-mail: [email protected] and proposed Base (1% annual chance) flexibility analysis is not required. [email protected]. Flood Elevations (BFEs) and proposed —Fax: (303) 312–6064 (please alert the Regulatory Classification. This BFE modifications for the communities proposed rule is not a significant individual listed in the FOR FURTHER listed below. The BFEs are the basis for regulatory action under the criteria of INFORMATION CONTACT if you are faxing the floodplain management measures Section 3(f) of Executive Order 12866 of comments). that the community is required either to —Mail: Richard R. Long, Director, Air September 30, 1993, Regulatory adopt or to show evidence of being Planning and Review, 58 FR 51735. and Radiation Program, already in effect in order to qualify or Environmental Protection Agency remain qualified for participation in the Executive Order 13132, Federalism. (EPA), Region 8, Mailcode 8P–AR, National Flood Insurance Program This rule involves no policies that have 999 18th Street, Suite 200, Denver, (NFIP). federalism implications under Executive Colorado 80202–2466. Order 13132. DATES: The comment period is ninety —Hand Delivery: Richard R. Long, Executive Order 12988, Civil Justice Director, Air and Radiation Program, (90) days following the second publication of this proposed rule in a Reform. This rule meets the applicable Environmental Protection Agency standards of Executive Order 12988. (EPA), Region 8, Mailcode 8P–AR, newspaper of local circulation in each 999 18th Street, Suite 200, Denver, community. List of Subjects in 44 CFR Part 67 Colorado 80202–2466. Such deliveries ADDRESSES: The proposed BFEs for each Administrative practice and are only accepted Monday through community are available for inspection procedure, Flood insurance, Reporting Friday, 8 a.m. to 4:55 p.m., excluding at the office of the Chief Executive and recordkeeping requirements. federal holidays. Special Officer of each community. The arrangements should be made for respective addresses are listed in the Accordingly, 44 CFR part 67 is deliveries of boxed information. table below. proposed to be amended as follows:
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PART 67—[AMENDED] Range of Range of Source of flooding and location elevations elevations in feet Source of flooding and location in feet 1. The authority citation for part 67 (NAVD)+ (NAVD)+ continues to read as follows: City of Dunnellon, Marion County, Florida Send comments to Mr. Patrick G. Howard, Marion Authority: 42 U.S.C. 4001 et seq.; County Administrator, 601 Southeast 25th Ave- Reorganization Plan No. 3 of 1978, 3 CFR, Unnamed ponding areas ...... +32 nue, Ocala, Florida 34471. 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, Unnamed ponding areas ...... +69 3 CFR, 1979 Comp., p. 376. * National Geodetic Vertical Datum. City of Ocala, Marion County, Florida # Depth in feet above ground. Unnamed ponding areas ...... +48 § 67.4 [Amended] + North American Vertical Datum. Unnamed ponding areas ...... +133 2. The tables published under the ADDRESSES * National Geodetic Vertical Datum. authority of § 67.4 are proposed to be Maps available for inspection at the Dunnellon City # Depth in feet above ground. amended as follows: Hall, 20750 River Drive, Dunnellon, Florida. + North American Vertical Datum. Send comments to Mr. Edward Ericson, Dunnellon ADDRESSES Range of City Manager, 20750 River Drive, Dunnellon, elevations Florida 34431. Maps available for inspection at the City of Ocala Source of flooding and location in feet Engineering Department, 405 Southeast Osceola (NAVD)+ Marion County, Florida (Unincorporated Areas) Avenue, Ocala, Florida. Send comments to The Honorable Randy Ewers, City of Belleview, Marion County, Florida Unnamed ponding areas (primarily, but Mayor of the City of Ocala, P.O. Box 1270, not exclusively located west of Inter- Ocala, Florida 34478–1270. Unnamed ponding areas ...... +65 state 75) ...... +6 Unnamed ponding areas ...... +108 Unnamed ponding areas (primarily, but Special Considerations: * National Geodetic Vertical Datum. not exclusively located west of Inter- The new and revised flood elevations affect over # Depth in feet above ground. state 75) ...... +200 4,000 unnamed ponding areas in Marion County + North American Vertical Datum. * National Geodetic Vertical Datum. and its incorporated areas. This proposed rule # Depth in feet above ground. lists the range of new and/or revised elevations ADDRESSES + North American Vertical Datum. affecting the communities listed above. Because Maps available for inspection at the Belleview City ADDRESSES the specific changes are too numerous to list, Hall, Public Works Department, 5343 Southeast residents and lessees of property in Marion Abshier Boulevard, Belleview, Florida. Maps available for inspection at the Marion County County and its incorporated areas are strongly Send comments to The Honorable Tammy Moore, Transportation Department, 412 Southeast 25th encouraged to review the FEMA Flood Insurance Mayor of the City of Belleview, 5343 Southeast Avenue, Ocala, Florida. For more information, Rate Maps at the community offices or online at Abshier Boulevard, Belleview, Florida 34420. please contact the Marion County Stormwater Di- http://www.marioncountyfl.org. vision at (352) 671–8686.
#Depth in feet above ground. *Elevation in feet (NGVD) Source of flooding Location of referenced elevation +Elevation in feet Communities affected (NAVD) Effective Modified
Bertie County, North Carolina and Incorporated Areas
Brittons Creek ...... At the confluence with Roanoke River ...... None +31 Unincorporated Areas of Bertie County. Approximately 900 feet upstream of Black Jack Road None +48 (State Route 1135). Brittons Creek Tributary 1 ..... At the confluence with Brittons Creek ...... None +38 Unincorporated Areas of Bertie County. Approximately 1,900 feet upstream of the confluence None +53 with Brittons Creek. Cashie River ...... Approximately 4.0 miles upstream of NC–45 ...... +8 +7 Unincorporated Areas of Bertie County, Town of Roxobel. Approximately 1,150 feet upstream of the confluence of None +79 Cashie River Tributary 5. Cashie River Tributary 1 ...... Approximately 150 feet upstream of Peterson Lane ...... None +9 Unincorporated Areas of Bertie County, Town of Windsor. Approximately 2.4 miles upstream of the confluence of None +34 Cashie River Tributary 1A. Cashie River Tributary 1A .... At the confluence with Cashie River Tributary 1 ...... None +9 Unincorporated Areas of Bertie County, Town of Windsor. Approximately 300 feet upstream of Clark Avenue ...... None +19 Cashie River Tributary 3 ...... At the confluence with Cashie River ...... None +64 Unincorporated Areas of Bertie County. Approximately 0.4 mile upstream of the confluence with None +68 Cashie River. Cashie River Tributary 5 ...... At the confluence with Cashie River ...... None +76 Unincorporated Areas of Bertie County. Approximately 150 feet downstream of Harrells Siding None +80 Road (State Route 1208).
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#Depth in feet above ground. *Elevation in feet (NGVD) Source of flooding Location of referenced elevation +Elevation in feet Communities affected (NAVD) Effective Modified
Cashie Swamp ...... At the confluence with Cashie River ...... None +58 Unincorporated Areas of Bertie County. Approximately 1,500 feet upstream of Floyd Hall Road None +82 (State Route 437). Cashie Swamp Tributary 1 ... At the confluence with Cashie Swamp ...... None +61 Unincorporated Areas of Bertie County. Approximately 0.5 mile upstream of the confluence of None +74 Cashie Swamp Tributary 1A. Cashie Swamp Tributary 1A At the confluence with Cashie Swamp Tributary 1 ...... None +66 Unincorporated Areas of Bertie County. Approximately 0.5 mile upstream of Piney Wood Road ... None +74 Cashie Swamp Tributary 2 ... At the confluence with Cashie Swamp ...... None +67 Unincorporated Areas of Bertie County, Town of Kelford. Approximately 400 feet upstream of Railroad Street ...... None +86 Cashie Swamp Tributary 3 ... At the confluence with Cashie Swamp ...... None +79 Unincorporated Areas of Bertie County, Town of Kelford. Approximately 1,950 feet upstream of North Main Street None +89 (State Highway 308). Cashoke Creek ...... Approximately 50 feet upstream of State Highway 45 ...... None +7 Unincorporated Areas of Bertie County. Approximately 1,000 feet downstream of Sans Souci None +22 Road (State Route 1500). Cashoke Creek Tributary 1 ... At the confluence with Cashoke Creek ...... None +7 Unincorporated Areas of Bertie County. Approximately 550 feet upstream of Cooper Hill Road None +33 (State Highway 308). Chiska Creek ...... At the confluence with Cashie River ...... +14 +16 Unincorporated Areas of Bertie County. Approximately 1.2 miles upstream of Governors Road None +50 (State Highway 308). Coniott Creek ...... At the confluence with Roanoke River ...... None +20 Unincorporated Areas of Bertie County. Approximately 0.7 mile upstream of Indian Woods Road None +40 (State Route 1108). Connarista Swamp ...... At the confluence with Cashie River ...... None +31 Unincorporated Areas of Bertie County. Approximately 0.6 mile upstream of Connarista Road None +63 (State Route 1200). Cucklemaker Creek ...... At the confluence with Hoggards Mill Creek ...... None +27 Unincorporated Areas of Bertie County. Approximately 1.8 miles upstream of Bull Hill Road None +37 (State Route 1301). Flag Run Gut ...... At the confluence with Roanoke River ...... None +30 Unincorporated Areas of Bertie County. Approximately 450 feet downstream of Governors Road None +73 Flat Swamp ...... At the confluence with Hoggards Mill Creek ...... None +27 Unincorporated Areas of Bertie County. Approximately 0.5 mile upstream of Browns School Road None +55 (State Route 1348). Flat Swamp Tributary 1 ...... At the confluence with Flat Swamp ...... None +30 Unincorporated Areas of Bertie County. Approximately 50 feet downstream of Bakertown Road ... None +34 Flat Swamp Tributary 2 ...... At the confluence with Flat Swamp ...... None +31 Unincorporated Areas of Bertie County. Approximately 1.4 miles upstream of Jessie Mack Road None +55 (State Route 1351). Flat Swamp Tributary 3 ...... At the confluence with Flat Swamp ...... None +37 Unincorporated Areas of Bertie County. Approximately 1,500 feet upstream of Doc Baker Road None +52 (State Route 1350). Flat Swamp Tributary 4 ...... At the confluence with Flat Swamp ...... None +43 Unincorporated Areas of Bertie County. Approximately 0.5 mile upstream of Browns School Road None +53 (State Route 1348).
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#Depth in feet above ground. *Elevation in feet (NGVD) Source of flooding Location of referenced elevation +Elevation in feet Communities affected (NAVD) Effective Modified
Hoggards Mill Creek ...... At the confluence with Cashie River ...... +11 +13 Unincorporated Areas of Bertie County. At the confluences of Cucklemaker Creek and Flat None +27 Swamp. Indian Creek ...... At the confluence with Roanoke River ...... None +25 Unincorporated Areas of Bertie County, Town of Lewiston Woodville. At the confluence of Jacks Branch ...... None +40 Indian Creek Tributary 1 ...... At the confluence with Indian Creek ...... None +40 Unincorporated Areas of Bertie County. Approximately 1.5 miles upstream of the confluence with None +44 Indian Creek. Jacks Branch ...... At the confluence with Indian Creek ...... None +40 Unincorporated Areas of Bertie County, Town of Lewiston Woodville. Approximately 0.5 mile downstream of Jack Branch Road None +53 (State Route 1119). Mill Swamp ...... At the confluence with Roquist Creek ...... None +9 Unincorporated Areas of Bertie County. Approximately 0.9 mile upstream of George Leggett None +20 Road (State Route 1523). Redbud Branch ...... At the confluence with Whiteoak Swamp ...... None +35 Unincorporated Areas of Bertie County, Town of Askewville. Approximately 600 feet upstream of North Askewville None +58 Railroad Street. Roanoke River ...... Approximately 4.0 miles upstream of NC–45 ...... +8 +7 Unincorporated Areas of Bertie County. Approximately 3.5 miles upstream of Burke/Northampton +36 +37 County boundary. Roanoke River Tributary 1 .... At the confluence with Roanoke River ...... None +9 Unincorporated Areas of Bertie County. Approximately 0.4 mile upstream of Morning Road (State None +21 Route 1519). Roanoke River Tributary 2 .... At the confluence with Roanoke River ...... None +13 Unincorporated Areas of Bertie County. Approximately 150 feet downstream of Cedar Landing None +22 Road (State Route 1521). Roanoke River Tributary 3 .... At the confluence with Roanoke River ...... None +13 Unincorporated Areas of Bertie County. Approximately 1.5 miles upstream of Gillam Road (State None +16 Route 1542). Roquist Creek ...... At the confluence with Cashie River ...... None +8 Unincorporated Areas of Bertie County. Approximately 1,000 feet upstream of the confluence of None +39 Roquist Creek Tributary 5. Roquist Creek Tributary 1 ..... At the confluence with Roquist Creek ...... None +27 Unincorporated Areas of Bertie County. Approximately 0.7 mile upstream of the confluence with None +33 Roquist Creek. Roquist Creek Tributary 2 ..... At the confluence with Roquist Creek ...... None +29 Unincorporated Areas of Bertie County. Approximately 0.9 mile upstream of the confluence with None +35 Roquist Creek. Roquist Creek Tributary 3 ..... At the confluence with Roquist Creek ...... None +29 Unincorporated Areas of Bertie County. Approximately 1.6 miles upstream of the confluence with None +36 Roquist Creek. Roquist Tributary 4 ...... At the confluence with Roquist Creek ...... None +37 Unincorporated Areas of Bertie County. Approximately 1.0 mile upstream of the confluence with None +38 Roquist Creek. Roquist Tributary 5 ...... At the confluence with Roquist Creek ...... None +39 Unincorporated Areas of Bertie County. Approximately 0.9 mile upstream of Old King Farm Road None +48 (State Route 1116).
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#Depth in feet above ground. *Elevation in feet (NGVD) Source of flooding Location of referenced elevation +Elevation in feet Communities affected (NAVD) Effective Modified
Roquist Tributary 5A ...... At the confluence with Roquist Creek Tributary 5 ...... None +41 Unincorporated Areas of Bertie County. Approximately 600 feet downstream of Governors Road None +47 (State Highway 308). Sandy Run ...... At the confluence with Roanoke River ...... +36 +34 Unincorporated Areas of Bertie County. Approximately 0.7 mile upstream of Governors Road None +60 (State Highway 308). Sandy Run Tributary 2 ...... At the confluence with Sandy Run ...... None +37 Unincorporated Areas of Bertie County. Approximately 0.5 mile upstream of the confluence with None +58 Sandy Run. Sandy Run Tributary 4 ...... At the confluence with Sandy Run ...... None +39 Unincorporated Areas of Bertie County. Approximately 0.5 mile upstream of the confluence with None +56 Sandy Run. Sandy Run Tributary 5 ...... At the confluence with Sandy Run ...... None +43 Unincorporated Areas of Bertie County. Approximately 0.7 mile upstream of the confluence with None +56 Sandy Run. Sandy Run Tributary 6 ...... At the confluence with Sandy Run ...... None +46 Unincorporated Areas of Bertie County. Approximately 1,850 feet upstream of Byrd Club Road .... None +58 Sutton Creek ...... At the confluence with Wading Place Creek ...... None +8 Unincorporated Areas of Bertie County. Approximately 1.2 miles upstream of State Highway 308 None +17 Wading Place Creek ...... At the confluence with Cashie River ...... None +8 Unincorporated Areas of Bertie County. Approximately 2.7 miles upstream of the confluence of None +24 Wading Place Creek Tributary 1. Wading Place Creek Tribu- At the confluence with Wading Place Creek ...... None +10 Unincorporated Areas of tary 1. Bertie County. Approximately 1.8 miles upstream of the confluence with None +31 Wading Place Creek. Wahtom Swamp ...... At the confluence with Cashie River ...... None +48 Unincorporated Areas of Bertie County, Town of Askewville. Approximately 0.4 mile upstream of Harrells Siding Road None +69 (State Route 1208). Whiteoak Swamp ...... At the confluence with Cashie River ...... None +24 Unincorporated Areas of Bertie County, Town of Askewville. Approximately 500 feet upstream of Charles Taylor Road None +57 (State Route 1221). Whiteoak Swamp Tributary 1 At the confluence with Whiteoak Swamp ...... None +26 Unincorporated Areas of Bertie County, Town of Askewville. Approximately 2,000 feet upstream of Pocosin Road None +33 (State Route 1343).
* National Geodetic Vertical Datum. # Depth in feet above ground. + North American Vertical Datum. ADDRESSES Unincorporated Areas of Bertie County Maps available for inspection at the Bertie County Building Inspection Department, 106 Dundee Street, Windsor, North Carolina. Send comments to Mr. Zee Lamb, Bertie County Manager, P.O. Box 530, Windsor, North Carolina 27983. Town of Askewville Maps available for inspection at the Bertie County Building Inspection Department, 106 Dundee Street, Windsor, North Carolina. Send comments to The Honorable Meredith White, Mayor of the Town of Askewville, 113 West Askewville Street, Windsor, North Carolina 27983. Town of Kelford Maps available for inspection at the Bertie County Building Inspection Department, 106 Dundee Street, Windsor, North Carolina. Send comments to The Honorable Wade Tim Emory, Mayor of the Town of Kelford, P.O. Box 99, Kelford, North Carolina 27847. Town of Lewiston Woodville Maps available for inspection at the Lewiston Woodville Town Hall, 103 West Church Street, Lewiston Woodville, North Carolina.
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#Depth in feet above ground. *Elevation in feet (NGVD) Source of flooding Location of referenced elevation +Elevation in feet Communities affected (NAVD) Effective Modified
Send comments to The Honorable Carl Lee, Mayor of the Town of Lewiston Woodville, P.O. Box 216, Lewiston Woodville, North Carolina 27849. Town of Roxobel Maps available for inspection at the Roxobel Town Hall, 204 South Main Street, Roxobel, North Carolina. Send comments to The Honorable Gary Johnson, Mayor of the Town of Roxobel, P.O. Box 37, Roxobel, North Carolina 27872. Town of Windsor Maps available for inspection at the Windsor Town Hall, 128 South King Street, Windsor, North Carolina. Send comments to The Honorable Robert Spivey, Mayor of the Town of Windsor, P.O. Box 508, Windsor, North Carolina 27938.
Catawba County, North Carolina and Incorporated Areas
Bakers Creek Tributary ...... Approximately 400 feet upstream of the confluence with None +891 Unincorporated Areas of Ca- Bakers Creek. tawba County. Approximately 1.4 miles upstream of Swinging Bridge None +980 Road. Bakers Creek Tributary 1 ...... Approximately 300 feet upstream of the confluence with None +891 Unincorporated Areas of Ca- Bakers Creek. tawba County. Approximately 0.7 mile upstream of Stratford Drive ...... None +1,040 Balls Creek ...... Approximately 600 feet downstream of Kale Road (State None +762 Unincorporated Areas of Ca- Route 1832). tawba County. Approximately 970 feet upstream of Little Mountain Road None +1,034 Barger Branch ...... At the confluence with Henry Fork ...... +860 +861 Unincorporated Areas of Ca- tawba County, City of Hickory, Town of Brookford. Approximately 200 feet upstream of 8th Avenue South- None +1,064 east. Barger Branch Tributary 1 .... At the confluence with Barger Branch ...... +988 +987 City of Hickory. Approximately 800 feet upstream of 8th Avenue South- None +1,083 east. Barger Branch Tributary 2 .... At the confluence with Barger Branch Tributary 1 ...... +995 +991 City of Hickory. Approximately 1,040 feet upstream of the confluence None +1,033 with Barger Branch Tributary 1. Barger Branch Tributary 3 .... At the confluence with Barger Branch ...... +1,010 +1,005 City of Hickory. Approximately 130 feet upstream of 8th Avenue South- +1,083 +1,082 east. Betts Branch ...... At the confluence with Clarks Creek ...... +808 +812 Unincorporated Areas of Ca- tawba County. Approximately 1,900 feet upstream of the confluence +811 +812 with Clarks Creek. Bills Branch ...... At the confluence with Clarks Creek ...... +810 +813 Unincorporated Areas of Ca- tawba County, City of Newton. Approximately 830 feet upstream of U.S. 321 South ...... None +844 Camp Creek ...... Approximately 0.5 mile upstream of the confluence with +914 +915 Unincorporated Areas of Ca- Jacob Fork. tawba County. At the Burke/Catawba County boundary ...... None +1,020 Camp Creek ...... Approximately 0.4 mile above the confluence of Balls None +762 Unincorporated Areas of Ca- Creek. tawba County, City of Hickory. At the Burke/Caldlwell/Catawba County boundary ...... None +936 Catawba River ...... Approximately 0.4 mile above the confluence of Balls None +762 Unincorporated Areas of Ca- Creek. tawba County, City of Hickory. At the Burke/Caldwell/Catawba County boundary ...... None +936 Catawba River Tributary 1 .... At the confluence with the Catwaba River ...... None +936 Unincorporated Areas of Ca- tawba County, City of Hickory. Approximately 1,100 feet upstream of 31st Avenue None +1,026 Northwest. Clarks Creek ...... Approximately 850 feet downstream of U.S. 321 ...... None +790 Unincorporated Areas of Ca- tawba County, City of Hickory, City of Newton, Town of Maiden. Approximately 2.5 miles upstream of I–40 ...... None +1,049 Cline Creek ...... At the confluence with Clark Creek ...... +861 +864 Unincorporated Areas of Ca- tawba County, City of Conover, City of Newton.
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#Depth in feet above ground. *Elevation in feet (NGVD) Source of flooding Location of referenced elevation +Elevation in feet Communities affected (NAVD) Effective Modified
Approximately 150 feet downstream of I–40 ...... None +908 Cline Creek North ...... At the confluence with Lyle Creek ...... +870 +869 Unincorporated Areas of Ca- tawba County. Approximately 2.0 miles upstream of the confluence with None +1,047 Cline Creek North Tributary 1. Cline Creek North Tributary 1 At the confluence with Cline Creek North ...... +897 +896 Unincorporated Areas of Ca- tawba County. Approximately 0.5 mile upstream of Rifle Range Road .... None +1,105 Cline Creek Tributary 1 ...... At the confluence with Cline Creek ...... None +886 City of Conover. Approximately 450 feet upstream of I–40 ...... None +903 Cline Creek Tributary 2 ...... At the confluence with Cline Creek ...... None +898 City of Conover. Approximately 1,300 feet upstream of I–40 ...... None +911 Conover Creek ...... At the confluence with Lyle Creek ...... +870 +868 Unincorporated Areas of Ca- tawba County, City of Conover. Approximately 30 feet upstream of 5th Street Place +952 +953 Northeast. Cow Branch ...... At the confluence with Pott Creek ...... None +861 Unincorporated Areas of Ca- tawba County. Approximately 0.8 mile upstream of Grace Church Road None +910 (State Route 2030). Cripple Creek ...... At the confluence with Frye Creek and Horseford Creek +993 +995 City of Hickory. Approximately 1,070 feet upstream of 4th Street Drive None ¥1,067 Northwest. Cripple Creek Tributary 1 ..... At the confluence with Cripple Creek ...... +1,030 +1,029 City of Hickory. Approximately 1,900 feet upstream of the confluence None +1,055 with Cripple Creek. Douglas Creek ...... At the confluence with Jacob Fork ...... None +1,011 Unincorporated Areas of Ca- tawba County. Approximately 200 feet upstream of the Burke/Catawba None +1,048 County boundary. Falling Creek ...... At the confluence with Lake Hickory ...... +939 +936 Unincorporated Areas of Ca- tawba County, City of Hickory. Approximately 50 feet downstream of 14th Avenue None +1,093 Northeast. Falling Creek Tributary 1 ...... Approximately 400 feet upstream of the confluence with +1,014 +1,015 City of Hickory. Falling Creek. Approximately 275 feet upstream of 12th Avenue North- None +1,088 east. Falling Creek Tributary 2 ...... At the confluence with Falling Creek ...... +1,058 +1,052 City of Hickory. Approximately 380 feet upstream of 12th Avenue North- None +1,095 east. Fitz Creek ...... At the confluence with Cripple Creek ...... +1,011 +1,013 City of Hickory. Approximately 30 feet upstream of the confluence with +1,012 +1,013 Cripple Creek. Frye Creek ...... At the confluence with Horseford Creek and Cripple +993 +995 City of Hickory, Town of Creek. Long View. Approximately 50 feet downstream of 34th Street North- None +1,119 west. Geitner Branch ...... At the confluence with Henry Fork ...... +887 +890 City of Hickory. Approximately 1,900 feet upstream of 7th Avenue South- None +1,080 west. Geitner Branch Tributary 1 ... At the confluence with Geitner Branch ...... +1,011 +1,019 City of Hickory. Approximately 1,250 feet upstream of the confluence None +1,043 with Geitner Branch. Geitner Branch Tributary 2 ... At the confluence with Geitner Branch ...... +984 +983 City of Hickory. Approximately 1,700 feet upstream of 7th Avenue South- +1,072 +1,074 west. Haas Creek ...... At the confluence with Pott Creek ...... None +814 Unincorporated Areas of Ca- tawba County. Approximately 0.3 mile upstream of Bill and Beulah Lane None +910 Henry Fork ...... Approximately 1,250 feet upstream of the confluence +822 +821 Unincorporated Areas of Ca- with Jacob Fork and South Fork Catawba River. tawba County, City of Hickory, City of Newton, Town of Brookford. At the Catawba/Burke County boundary ...... +927 +930
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#Depth in feet above ground. *Elevation in feet (NGVD) Source of flooding Location of referenced elevation +Elevation in feet Communities affected (NAVD) Effective Modified
Henry Fork Tributary 1 ...... At the confluence with Henry Fork ...... +849 +846 Unincorporated Areas of Ca- tawba County, City of Hickory. Approximately 200 feet downstream of U.S. Route 70 ..... +998 +999 Henry Fork Tributary 2 ...... At the confluence with Henry Fork ...... +886 +889 Town of Brookford, City of Hickory. Approximately 1,830 feet upstream of Brookford Boule- +924 +921 vard. Henry Fork Tributary 3 ...... At the confluence with Henry Fork ...... +822 +821 Unincorporated Areas of Ca- tawba County. Approximately 0.4 mile upstream of Robinson Road ...... None +855 Herman Branch Creek ...... At the confluence with Lyle Creek ...... +914 +913 Unincorporated Areas of Ca- tawba County, City of Conover. Approximately 175 feet upstream of the confluence with +915 +914 Lyle Creek. Hildenbran Creek ...... At the confluence with Clarks Creek ...... +837 +838 City of Newton. Approximately 150 feet upstream of A. C. Little Drive ...... +952 +953 Holdsclaw Creek ...... At the upstream side of Railroad ...... None +798 Unincorporated Areas of Ca- tawba County. Approximately 1,500 feet upstream of the confluence of None +798 Holdsclaw Creek Tributary 1. Holdsclaw Creek Tributary 1 At the confluence with Holdsclaw Creek ...... None +798 Unincorporated Areas of Ca- tawba County. Approximately 1,450 feet upstream of the confluence None +803 with Holdsclaw Creek. Holly Branch ...... Approximately 220 feet downstream of the confluence of None +821 Unincorporated Areas of Ca- Holly Branch Tributary 1 and Shady Branch. tawba County, Town of Maiden. At the confluence of Holly Branch Tributary 1 and Shady None +824 Branch. Holly Branch Tributary 1 ...... At the confluence with Holly Branch ...... None +824 Unincorporated Areas of Ca- tawba County, Town of Maiden. Approximately 200 feet upstream of South Main Avenue None +870 Hop Creek ...... At the confluence with Jacob Fork ...... +834 +835 Unincorporated Areas of Ca- tawba County. Approximately 2.7 miles upstream of the confluence with None +917 Jacob Fork. Horseford Creek ...... At the confluence with the Catawba River ...... None +936 City of Hickory. At the confluence with Frye Creek and Cripple Creek ...... +993 +995 Howards Creek ...... At the Catawba/Lincoln County boundary ...... None +972 Unincorporated Areas of Ca- tawba County. Approximately 500 feet upstream of the Catawba/Lincoln None +977 County boundary. Indian Creek ...... At the Catawba/Lincoln County boundary ...... None +1,011 Unincorporated Areas of Ca- tawba County. Approximately 550 feet upstream of the Catawba/Lincoln None +1,014 County boundary. Jacob Fork ...... Approximately 175 feet upstream of Providence Church None +915 Unincorporated Areas of Ca- Road (State Route 1116). tawba County. At the Catawba/Burke County boundary ...... None +1,057 Jacob Fork Tributary 1 ...... At the confluence with Jacob Fork ...... None +1,022 Unincorporated Areas of Ca- tawba County. Approximately 1.3 miles upstream of Cooksville Road ..... None +1,078 Lippard Creek ...... At the Lincoln/Catawba County boundary ...... None +869 Unincorporated Areas of Ca- tawba County. Approximately 1,870 feet upstream of the Lincoln/Ca- None +876 tawba County boundary. Long Creek ...... At the confluence with McLin Creek ...... +861 +860 City of Conover, City of Claremont. Approximately 1,400 feet upstream of Railroad ...... None +988 Long Shoal Creek ...... Approximately 0.5 mile downstream of Sulphur Springs None +935 Unincorporated Areas of Ca- Road (State Route 1529). tawba County, City of Hickory. Approximately 0.4 mile upstream of Pinecrest Drive None +1,037 Northeast.
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#Depth in feet above ground. *Elevation in feet (NGVD) Source of flooding Location of referenced elevation +Elevation in feet Communities affected (NAVD) Effective Modified
Long View Creek ...... At the confluence with Henry Fork ...... +887 +891 Unincorporated Areas of Ca- tawba County, City of Hickory, Town of Long View. Approximately 1,500 feet upstream of U.S. 70 Southwest +1,085 +1,081 Long View Creek Tributary 1 At the confluence with Long View Creek ...... +987 +990 City of Hickory. Approximately 80 feet downstream of U.S. 70 ...... +1,063 +1,061 Long View Creek Tributary 2 Approximately 140 feet upstream of the confluence with +1,039 +1,038 City of Hickory, Town of Long View Creek. Long View. Approximately 1,460 feet upstream of the confluence +1,057 +1,053 with Long View Creek. Lyle Creek ...... At the confluence with the Catawba River ...... +772 +773 Unincorporated Areas of Ca- tawba County, City of Hickory, Town of Ca- tawba. Approximately 550 feet upstream of 18th Avenue North- None +1,116 east. Lyle Creek Tributary ...... At the Shock Road (State Route 1711) ...... +832 +831 Unincorporated Areas of Ca- tawba County. Approximately 2,000 feet upstream of Community Road None +892 Lyle Creek Tributary 1 ...... Approximately 1,600 feet upstream of the confluence +819 +820 Unincorporated Areas of Ca- with Lyle Creek. tawba County. Approximately 1.0 mile upstream of Crossing Creek None +931 Drive. Maiden Creek...... Approximately 1.3 miles upstream of Providence Mill None +864 Unincorporated Areas of Ca- Road. tawba County. Approximately 80 feet downstream of North Olivers None +905 Cross Road. McLin Creek ...... Approximately 500 feet upstream of East 20th Street ...... None +940 City of Conover. Approximately 0.4 mile upstream of the confluence of None +970 Tributary of McLin Creek. McLin Creek Tributary 1 ...... Approximately 750 feet upstream of the confluence with None +857 Unincorporated Areas of Ca- McLin Creek. tawba County, City of Claremont Approximately 1,250 feet upstream of Frazier Drive ...... None +936 Miller Branch ...... At the downstream side of 12th Avenue Southeast ...... +897 +894 Unincorporated Areas of Ca- tawba County, City of Hickory. Approximately 1.9 miles upstream of the confluence with None +982 Clarks Creek. Mountain Creek ...... At the upstream side of Slanting Bridge Road ...... None +760 Unincorporated Areas of Ca- tawba County. Approximately 1.6 miles upstream of the confluence of None +776 Mountain Creek Tributary 3. Mountain Creek Tributary 2 .. At the confluence with Mountain Creek ...... None +760 Unincorporated Areas of Ca- tawba County. Approximately 1.6 miles upstream of the confluence with None +803 Mountain Creek. Mountain Creek Tributary 2A At the confluence with Mountain Creek Tributary 2 ...... None +760 Unincorporated Areas of Ca- tawba County. Approximately 1.4 miles upstream of the confluence with None +763 Mountain Creek Tributary 2. Mountain Creek Tributary 3 .. At the confluence with Mountain Creek ...... None +760 Unincorporated Areas of Ca- tawba County. Approximately 1.0 mile upstream of the confluence with None +778 Mountain Creek. Mountain Creek Tributary 3A At the confluence with Mountain Creek Tributary 3 ...... None +767 Unincorporated Areas of Ca- tawba County. Approximately 0.5 mile upstream of the confluence with None +804 Mountain Creek Tributary 3. Muddy Creek...... Approximately 1,900 feet upstream of the confluence None +835 Unincorporated Areas of Ca- with Henry Fork. tawba County. At the confluence of Muddy Creek Tributaries 2 and 3 .... None +838 Muddy Creek Tributary 1 ...... At the confluence with Muddy Creek ...... None +837 Unincorporated Areas of Ca- tawba County. Approximately 0.7 mile upstream of Robinwood Road ..... None +873
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#Depth in feet above ground. *Elevation in feet (NGVD) Source of flooding Location of referenced elevation +Elevation in feet Communities affected (NAVD) Effective Modified
Muddy Creek Tributary 2 ...... At the confluence with Muddy Creek ...... None +838 Unincorporated Areas of Ca- tawba County. Approximately 0.6 mile upstream of Robinwood Road ..... None +863 Muddy Creek Tributary 3 ...... At the confluence with Muddy Creek ...... None +838 Unincorporated Areas of Ca- tawba County, City of Hickory. Approximately 1.3 miles upstream of the confluence with None +872 Muddy Creek. Mull Creek...... Approximately 1,000 feet upstream of the confluence +820 +819 Unincorporated Areas of Ca- with Lyle Creek. tawba County, City of Conover. Approximately 500 feet upstream of 9th Avenue North- None +1,002 east. Mundy Creek ...... At the confluence with Reed Creek ...... None +760 Unincorporated Areas of Ca- tawba County. Approximately 500 feet upstream of Lineberger Road ..... None +776 Mundy Creek Tributary 1 ...... At the confluence with Mundy Creek ...... None +760 Unincorporated Areas of Ca- tawba County. Approximately 1,400 feet upstream of Grassy Creek None +781 Road. Naked Creek ...... Approximately 2,000 feet downstream of the St. Peters None +936 Unincorporated Areas of Ca- Church Road (State Route 1453). tawba County. Approximately 0.5 mile upstream of Timber Ridge Road +1,009 +1,015 Pinch Gut Creek ...... Approximately 120 feet upstream of St. James Church None +851 Unincorporated Areas of Ca- Road. tawba County, Town of Maiden. Approximately 0.9 mile upstream of St. James Church None +883 Road. Pinch Gut Creek Tributary 1 At the confluence with Pinch Gut Creek ...... None +852 Unincorporated Areas of Ca- tawba County. Approximately 0.5 mile upstream of the confluence with None +886 Pinch Gut Creek. Pott Creek ...... Approximately 1,200 feet downstream of the confluence None +801 Unincorporated Areas of Ca- of Rhodes Mill Creek. tawba County. Approximately 1.9 miles upstream of Plateau Road None +928 (State Route 2036). Propst Creek ...... Approximately 0.4 mile downstream of Snipe Road (State +989 +988 Unincorporated Areas of Ca- Route 1492). tawba County, City of Hickory. Approximately 75 feet downstream of Snipe Road (State +1,006 +1,005 Route 1492). Reed Creek ...... At the confluence with Mountain Creek ...... None +760 Unincorporated Areas of Ca- tawba County. Approximately 1.1 miles upstream of Mount Pleasant None +790 Road. Rhodes Mill Creek ...... At the confluence with Pott Creek ...... None +802 Unincorporated Areas of Ca- tawba County. Approximately 1,100 feet upstream of Leatherman Road None +855 (State Route 2025). Rhodes Mill Creek Tributary At the confluence with Rhodes Mill Creek ...... None +815 Unincorporated Areas of Ca- 1. tawba County. Approximately 0.4 mile upstream of the confluence with None +825 Rhodes Mill Creek. Shady Branch ...... At the confluence with Holly Branch and Holly Branch None +824 Unincorporated Areas of Ca- Tributary 1. tawba County, Town of Maiden. Approximately 500 feet upstream of South 11th Avenue None +959 Shady Branch Tributary 1 ..... At the confluence with Sandy Branch ...... None +872 Unincorporated Areas of Ca- tawba County, Town of Maiden. Approximately 1,800 feet upstream of South 8th Avenue None +927 Smyre Creek ...... At the confluence with Clarks Creek ...... None +831 Unincorporated Areas of Ca- tawba County, City of Newton. Approximately 50 feet downstream of NC–16 ...... +833 +875
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#Depth in feet above ground. *Elevation in feet (NGVD) Source of flooding Location of referenced elevation +Elevation in feet Communities affected (NAVD) Effective Modified
Smyre Creek Tributary 1 ...... At the confluence with Smyre Creek ...... None +868 Unincorporated Areas of Ca- tawba County, City of Newton. Approximately 1,500 feet upstream of the confluence None +877 with Smyre Creek. Snow Creek ...... At the confluence with the Catawba River ...... None +935 Unincorporated Areas of Ca- tawba County, City of Hickory. Approximately 1,040 feet upstream of 15th Avenue None +1,097 Northeast. Snow Hill Branch ...... At the downstream side of State Route 16/East D Street +870 +868 City of Newton. Approximately 1,100 feet upstream of East 11th Street ... None +944 South Fork Catawba River ... At the Catawba/Lincoln County boundary ...... None +793 Unincorporated Areas of Ca- tawba County, City of Newton. Approximately 125 feet downstream of NC–10 ...... None +816 South Fork Catawba River At the confluence with South Fork Catawba River ...... None +794 Unincorporated Areas of Ca- Tributary 6. tawba County. Approximately 530 feet upstream of Herter Road (State None +800 Route 2022). South Fork Catawba River At the confluence with South Fork Catawba River ...... None +800 Unincorporated Areas of Ca- Tributary 7. tawba County. Approximately 0.9 mile upstream of the confluence with None +811 South Fork Catawba River. South Fork Catawba River At the confluence with South Fork Catawba River ...... None +802 Unincorporated Areas of Ca- Tributary 8. tawba County. Approximately 0.7 mile upstream of Wilfong Road ...... None +829 South Fork Catawba Tribu- At the confluence with South Fork Catawba River ...... None +806 Unincorporated Areas of Ca- tary 9. tawba County. Approximately 1.1 miles upstream of US–321 ...... None +822 South Fork Catawba Tribu- At the confluence with South Fork Catawba River Tribu- None +806 Unincorporated Areas of Ca- tary 9A. tary 9. tawba County. Approximately 1,500 feet upstream of the confluence None +806 with South Fork Catawba River Tributary 9. Terrapin Creek ...... Approximately 500 feet upstream of Mollys Backbone +761 +762 Unincorporated Areas of Ca- Road. tawba County. Approximately 1.2 miles upstream of the confluence of None +792 Terrapin Creek Tributary 1. Terrapin Creek Tributary 1 ... At the confluence with Terrapin Creek ...... +761 +766 Unincorporated Areas of Ca- tawba County. Approximately 1.0 mile upstream of the confluence with None +790 Terrapin Creek. Town Branch ...... At the confluence with the Catawba River ...... +772 +773 Unincorporated Areas of Ca- tawba County, Town of Catawba. Approximately 0.5 mile upstream of 2nd Street South- None +894 west. Town Creek ...... Approximately 1,400 feet upstream of St. James Church None +871 Unincorporated Areas of Ca- Road. tawba County, City of Newton. Approximately 0.8 mile upstream of State Route 10 ...... None +943 Tributary to Lyle Creek Tribu- At the confluence with Lyle Creek Tributary ...... None +875 Unincorporated Areas of Ca- tary. tawba County. Approximately 0.7 mile upstream of the confluence with None +921 Lyle Creek Tributary.
* National Geodetic Vertical Datum. # Depth in feet above ground. + North American Vertical Datum. ADDRESSES Town of Brookford Maps available for inspection at the Brookford Town Hall, 1700 South Center Street, Brookford, North Carolina. Send comments to The Honorable Thomas Schronce, Mayor of the Town of Brookford, 1700 South Center Street, Brookford, North Carolina 28602. Town of Catawba Maps available for inspection at the Catawba Town Hall, 102 1st Street Northwest, Catawba, North Carolina. Send comments to The Honorable Thomas Jones, Mayor of the Town of Catawba, P.O. Box 70, Catawba, North Carolina 28609.
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#Depth in feet above ground. *Elevation in feet (NGVD) Source of flooding Location of referenced elevation +Elevation in feet Communities affected (NAVD) Effective Modified
City of Claremont Maps available for inspection at the City of Claremont Planning Department, 3288 East Main Street, Claremont, North Carolina. Send comments to The Honorable Glenn A. Morrison, Mayor of the City of Claremont, 3288 East Main Street, Claremont, North Carolina 28610. City of Conover Maps available for inspection at the Conover City Hall, 101 First Street East, Conover, North Carolina. Send comments to The Honorable Bruce Eckard, Mayor of the City of Conover, P.O. Box 549, Conover, North Carolina 28613. City of Hickory Maps available for inspection at the Hickory City Hall, 76 North Center Street, Hickory, North Carolina. Send comments to The Honorable G. Rudy Wright, Jr., Mayor of the City of Hickory, P.O. Box 398, Hickory, North Carolina 28603. City of Newton Maps available for inspection at the City of Newton Planning Department, 401 North Main Avenue, Newton, North Carolina. Send comments to The Honorable Robert Mullinax, Mayor of the City of Newton, P.O. Box 550, Newton, North Carolina 28658. Town of Long View Maps available for inspection at the Long View Town Hall, 2404 1st Avenue Southwest, Hickory, North Carolina. Send comments to The Honorable Norman Cook, Mayor of the Town of Long View, 2404 1st Avenue Southwest, Hickory, North Carolina 28602. Town of Maiden Maps are available for inspection at the Maiden Town Hall, 113 West Main Street, Maiden, North Carolina. Send comments to The Honorable Robert Smyre, Mayor of the Town of Maiden, P.O. Box 125, Maiden, North Carolina 28650. Unincorporated Areas of Catawba County Maps available for inspection at the Catawba County Planning and Zoning Department, 100 A Southwest Boulevard, Newton, North Carolina. Send comments to Mr. Tom Lundy, Catawba County Manager, P.O. Box 389, Catawba, North Carolina 28658.
McDowell County, North Carolina and Incorporated Areas
Alexander Branch ...... At the confluence with South Muddy Creek ...... None +1,137 Unincorporated Areas of McDowell County. Approximately 0.8 mile upstream of the confluence with None +1,174 South Muddy Creek. Armstrong Creek ...... At the confluence with North Fork Catawba River ...... +1,383 +1,382 Unincorporated Areas of McDowell County. At the confluence of House Branch ...... None +1,959 Bakers Creek ...... At the confluence with Second Broad River ...... None +1,026 Unincorporated Areas of McDowell County. Approximately 1.3 miles upstream of the Railroad ...... None +1,153 Beaverdam Branch ...... At the confluence with Second Broad River ...... None +1,270 Unincorporated Areas of McDowell County. Approximately 0.5 mile upstream of State Route 1148 .... None +1,311 Betsy Creek ...... At the confluence with Tom Creek ...... None +1,442 Unincorporated Areas of McDowell County. Approximately 300 feet upstream of State Route 1434 .... None +1,461 Big Camp Creek ...... At the confluence with North Muddy Creek ...... None +1,134 Unincorporated Areas of McDowell County. Approximately 370 feet downstream of Interstate 40 ...... None +1,197 Bobs Creek ...... At the confluence with North Muddy Creek ...... None +1,206 Unincorporated Areas of McDowell County. Approximately 1,050 feet upstream of State Route 1796 None +1,219 Boney Creek ...... At the confluence with Cove Creek ...... None +1,137 Unincorporated Areas of McDowell County. Approximately 0.5 mile upstream of State Route 1143 .... None +1,170 Bradley Creek ...... At the confluence with Loom Branch ...... None +1,420 Unincorporated Areas of McDowell County. Approximately 850 feet upstream of State Route 1133 .... None +1,488 Brevard Creek ...... At the confluence with Catawba River ...... +1,341 +1,342 Unincorporated Areas of McDowell County. Approximately 1.4 miles upstream of State Route 1241 ... None +1,472 Buck Creek ...... At the confluence with Catawba River ...... +1,242 +1,246 Unincorporated Areas of McDowell County. Approximately 0.5 mile upstream of Sugar Cove Road .... None +1,883 Caleb Branch ...... At the confluence with North Muddy Creek ...... None +1,163 Unincorporated Areas of McDowell County. Approximately 0.6 mile upstream of State Route 1760 .... None +1,224 Camp Creek ...... At the confluence with Crooked Creek ...... None +1,441 Unincorporated Areas of McDowell County. Approximately 0.6 mile upstream of State Route 1131 .... None +1,535 Cane Creek (near At the McDowell/Rutherford County boundary ...... None +975 Unincorporated Areas of Dysartsville). McDowell County.
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#Depth in feet above ground. *Elevation in feet (NGVD) Source of flooding Location of referenced elevation +Elevation in feet Communities affected (NAVD) Effective Modified
Approximately 0.4 mile upstream of the confluence of None +1,044 Shoal Creek. Cane Creek (near Greenlee) Approximately 500 feet upstream of the confluence with +1,291 +1,292 Unincorporated Areas of Catawba River. McDowell County. Approximately 250 feet upstream of U.S. Highway 70 ..... None +1,454 Cane Creek Tributary 1 (near At the confluence with Cane Creek (near Dysartsville) .... None +1,037 Unincorporated Areas of Dysartsville). McDowell County. Approximately 1,680 feet upstream of the confluence None +1,064 with Cane Creek (near Dysartsville). Cane Creek Tributary 1 (near At the confluence with Cane Creek (near Greenlee) ...... None +1,332 Unincorporated Areas of Greenlee). McDowell County. Approximately 1,600 feet upstream of State Route 1230 None +1,359 Cane Creek Tributary 2 (near At the confluence with Cane Creek (near Greenlee) ...... None +1,418 Unincorporated Areas of Greenlee). McDowell County. Approximately 0.3 mile upstream of the confluence with None +1,458 Cane Creek (near Greenlee). Catawba River ...... At the Burke/McDowell County boundary ...... None +1,206 Unincorporated Areas of McDowell County, City of Marion, Town of Old Fort. Approximately 1.6 miles upstream of the confluence of None +1,832 Left Prong Catawba River. Catawba River Tributary 3 .... At the confluence with Catawba River ...... +1,266 +1,269 Unincorporated Areas of McDowell County. Approximately 0.4 mile upstream of the confluence with None +1,281 Catawba River. Clarks Branch ...... At the confluence with Little Crooked Creek ...... None +1,476 Unincorporated Areas of McDowell County. Approximately 0.4 mile upstream of State Route 1106 .... None +1,504 Clear Creek ...... At the confluence with Catawba River ...... +1,263 +1,267 Unincorporated Areas of McDowell County. Approximately 0.6 mile upstream of the confluence with None +1,285 Catawba River. Conley Branch ...... At the confluence with North Fork Catawba River ...... +1,408 +1,402 Unincorporated Areas of McDowell County. Approximately 1,850 feet upstream of the confluence None +1,441 with Conley Branch Tributary 1. Conley Branch Tributary 1 .... At the confluence with Conley Branch ...... None +1,419 Unincorporated Areas of McDowell County. Approximately 0.4 mile upstream of the confluence with None +1,443 Conley Branch. Cove Creek ...... Approximately 400 feet downstream of McDowell/Ruther- None +1,128 Unincorporated Areas of ford County boundary. McDowell County. At the confluences of West Fork Cove Creek and Mor- None +1,196 gan Creek (near Sugar Hill). Cox Creek ...... At the confluence with Armstrong Creek ...... +1,422 +1,418 Unincorporated Areas of McDowell County. Approximately 250 feet upstream of the confluence of None +1,528 Rag Creek. Crooked Creek ...... At the confluence with Catawba River ...... +1,322 +1,321 Unincorporated Areas of McDowell County. Approximately 620 feet upstream of State Route 1100 .... None +1,845 Curtis Creek ...... At the confluence with Catawba River ...... +1,374 +1,375 Unincorporated Areas of McDowell County, Town of Old Fort. Approximately 1,850 feet upstream of the confluence of None +1,926 Hickory Branch. Dales Creek ...... At the confluence with Catawba River/Lake James ...... None +1,206 Unincorporated Areas of McDowell County. Approximately 1.0 mile upstream of State Route 1552 .... None +1,386 Frasheur Creek ...... At the McDowell/Rutherford County boundary ...... None +1,152 Unincorporated Areas of McDowell County. Approximately 0.7 mile upstream of State Route 1140 .... None +1,223 Glades Creek ...... At the confluence with Catawba River ...... +1,298 +1,300 Unincorporated Areas of McDowell County. Approximately 400 feet upstream of State Route 1161 .... None +1,450 Goose Creek ...... At the confluence with North Muddy Creek ...... None +1,227 Unincorporated Areas of McDowell County. Approximately 0.6 mile upstream of State Route 147 ...... None +1,306
VerDate Aug<31>2005 22:01 Oct 31, 2006 Jkt 211001 PO 00000 Frm 00028 Fmt 4702 Sfmt 4702 E:\FR\FM\01NOP1.SGM 01NOP1 sroberts on PROD1PC70 with RULES 64196 Federal Register / Vol. 71, No. 211 / Wednesday, November 1, 2006 / Proposed Rules
#Depth in feet above ground. *Elevation in feet (NGVD) Source of flooding Location of referenced elevation +Elevation in feet Communities affected (NAVD) Effective Modified
Greasy Creek ...... Approximately 400 feet downstream of County boundary None +1,148 Unincorporated Areas of McDowell County. Approximately 0.5 mile upstream of State Route 1142 .... None +1,198 Harris Creek (near Sugar At the confluence with Cove Creek ...... None +1,132 Unincorporated Areas of Hill). McDowell County. Approximately 1,400 feet upstream of State Route 1140 None +1,168 Harris Creek (near At the confluence with Tom Creek ...... None +1,606 Unincorporated Areas of Woodlawn). McDowell County. Approximately 850 feet upstream of the confluence with None +1,636 Tom Creek. Haw Branch ...... At the confluence with Crooked Creek ...... None +1,379 Unincorporated Areas of McDowell County. Approximately 1,600 feet upstream of State Route 1135 None +1,432 Hicks Branch ...... At the confluence with North Muddy Creek ...... None +1,254 Unincorporated Areas of McDowell County. Approximately 1,800 feet upstream of State Route 1168 None +1,322 High Shoals Creek ...... At the confluence with South Muddy Creek ...... None +1,218 Unincorporated Areas of McDowell County. Approximately 200 feet upstream of the confluence of None +1,225 Barnes Branch. Honeycutt Creek ...... At the confluence with North Fork Catawba River ...... +1,489 +1,487 Unincorporated Areas of McDowell County. Approximately 340 feet downstream of the Railroad ...... None +1,854 Hoppers Creek ...... At the confluence with South Muddy Creek ...... None +1,118 Unincorporated Areas of McDowell County. Approximately 1.7 miles upstream of State Highway 226 None +1,201 Jackson Creek ...... At the confluence with Lytle Creek ...... None +1,492 Unincorporated Areas of McDowell County. Approximately 0.4 mile upstream of the confluence with None +1,534 Lytle Creek. Jake Creek ...... At the upstream side of the Railroad ...... +1,275 +1,283 Unincorporated Areas of McDowell County. Approximately 0.5 mile upstream of State Route 1247 .... None +1,346 Jarrett Creek ...... At the confluence with Mill Creek ...... +1,472 +1,474 Unincorporated Areas of McDowell County. Approximately 2.6 miles upstream of the confluence with None +1,791 Mill Creek. Johns Creek ...... At the confluence with Catawba River ...... +1,212 +1,214 Unincorporated Areas of McDowell County. Approximately 1,600 feet upstream of State Route 1501 None +1,228 Katy Creek ...... At the confluence with South Muddy Creek ...... None +1,150 Unincorporated Areas of McDowell County. Approximately 1,100 feet upstream of State Route 1798 None +1,252 Left Prong Catawba River .... At the confluence with Catawba River ...... +1,524 +1,527 Unincorporated Areas of McDowell County. Approximately 2.0 miles upstream of the confluence with None +1,739 Catawba River. Licklog Creek ...... At the confluence with Buck Creek ...... None +1,777 Unincorporated Areas of McDowell County. Approximately 1.3 miles upstream of the confluence with None +2,064 Buck Creek. Little Buck Creek ...... At the confluence with Buck Creek/Lake Tahoma ...... None +1,407 Unincorporated Areas of McDowell County. Approximately 200 feet downstream of the confluence of None +1,512 Long Branch. Little Crooked Creek ...... At the confluence with Crooked Creek ...... None +1,450 Unincorporated Areas of McDowell County. Approximately 100 feet downstream of State Route 1106 None +1,536 Little Crooked Creek Tribu- At the confluence with Little Crooked Creek ...... None +1,461 Unincorporated Areas of tary 1. McDowell County. Approximately 1,470 feet upstream of the confluence None +1,469 with Little Crooked Creek. Little Toe River ...... At the confluence with Crooked Creek ...... None +1,388 Unincorporated Areas of McDowell County. Approximately 25 feet upstream of State Route 1240 ...... None +1,478 Lonan Branch ...... At the confluence with Pepper Creek ...... None +1,536 Unincorporated Areas of McDowell County.
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#Depth in feet above ground. *Elevation in feet (NGVD) Source of flooding Location of referenced elevation +Elevation in feet Communities affected (NAVD) Effective Modified
Approximately 1,500 feet upstream of the confluence None +1,581 with Pepper Creek. Long Branch ...... At the confluence with Mill Creek ...... None +1,816 Unincorporated Areas of McDowell County. Approximately 0.4 mile upstream of the Railroad ...... None +1,953 Loom Creek ...... At the confluence with Crooked Creek ...... None +1,415 Unincorporated Areas of McDowell County. Approximately 0.8 mile upstream of the confluence of None +1,488 Bradley Creek. Lytle Branch ...... At the confluence with Crooked Creek ...... None +1,487 Unincorporated Areas of McDowell County. Approximately 1,100 feet upstream of State Route 1103 None +1,525 Mackey Creek ...... At the confluence with the Catawba River ...... None +1,284 Unincorporated Areas of McDowell County. Approximately 2.8 miles upstream of U.S. Highway 70 .... None +1,721 Magazine Branch ...... At the confluence with Hoppers Creek ...... None +1,145 Unincorporated Areas of McDowell County. Approximately 200 feet downstream of State Route 1771 None +1,162 Martin Branch ...... At the confluence with North Fork Catawba River ...... +1,439 +1,435 Unincorporated Areas of McDowell County. Approximately 350 feet upstream of State Route 1564 .... None +1,469 Mill Creek ...... Approximately 200 feet upstream of the confluence with +1,409 +1,410 Unincorporated Areas of Catawba River. McDowell County, Town of Old Fort. Approximately 300 feet downstream of State Route 1408 None +1,874 Mollys Branch ...... At the confluence with Hoppers Creek ...... None +1,129 Unincorporated Areas of McDowell County. Approximately 0.6 mile upstream of State Route 1769 .... None +1,170 Morgan Creek (near At the confluence with Cove Creek ...... None +1,173 Unincorporated Areas of Ledbetter Mountain). McDowell County. Approximately 1,270 feet upstream of the confluence None +1,180 with Cove Creek. Morgan Creek (near Sugar At the confluence with Cove Creek and West Fork Cove None +1,196 Unincorporated Areas of Hill). Creek. McDowell County. Approximately 0.8 mile upstream of the confluence with None +1,217 Cove Creek and West Fork Cove Creek. Muddy Creek ...... At the Burke/McDowell County boundary ...... None +1,087 Unincorporated Areas of McDowell County. At the confluences of North Muddy Creek and South None +1,089 Muddy Creek. Newberry Creek ...... At the confluence with Curtis Creek ...... None +1,670 Unincorporated Areas of McDowell County. Approximately 1.3 miles upstream of the confluence with None +1,923 Curtis Creek. Nicks Creek ...... At the confluence with Catawba River ...... +1,239 +1,240 Unincorporated Areas of McDowell County, City of Marion. Approximately 0.5 mile upstream of State Route 1250 .... None +1,447 North Fork Catawba River .... At the confluence with Catawba River/Lake James ...... None +1,206 Unincorporated Areas of McDowell County. Approximately 1.9 miles upstream of State Route 1571 ... None +2,506 North Muddy Creek ...... At the confluence with Muddy Creek and South Muddy None +1,089 Unincorporated Areas of Creek. McDowell County. Approximately 1.1 miles upstream of the confluence of None +1,326 North Muddy Creek Tributary 2. North Muddy Creek Tributary At the confluence with North Muddy Creek ...... None +1,297 Unincorporated Areas of 2. McDowell County. Approximately 1.0 mile upstream of State Route 1168 .... None +1,327 North Muddy Creek Tributary At the confluence with North Muddy Creek ...... None +1,094 Unincorporated Areas of No. 1. McDowell County. Approximately 1,000 feet upstream of State Route 1763 None +1,132 Old Catawba River ...... At the confluence of Shadrick Creek ...... None +1,091 Unincorporated Areas of McDowell County. Approximately 200 feet upstream of the confluence of None +1,091 Shadrick Creek. Patten Branch ...... At the confluence with South Muddy Creek ...... None +1,101 Unincorporated Areas of McDowell County. Approximately 0.6 mile upstream of State Route 1763 .... None +1,142
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#Depth in feet above ground. *Elevation in feet (NGVD) Source of flooding Location of referenced elevation +Elevation in feet Communities affected (NAVD) Effective Modified
Pepper Creek ...... At the confluence with North Fork Catawba River ...... +1,499 +1,446 Unincorporated Areas of McDowell County. Approximately 0.6 mile upstream of State Route 1566 .... None +1,674 Rock Creek ...... At the confluence with Second Broad River ...... None +1,290 Unincorporated Areas of McDowell County. At the downstream of State Route 1145 ...... None +1,365 Second Broad River ...... At the McDowell/Rutherford County boundary ...... None +990 Unincorporated Areas of McDowell County. Approximately 0.8 mile upstream of State Route 1001 .... None +1,369 Shadrick Creek ...... At the confluence with Old Catawba River ...... None +1,091 Unincorporated Areas of McDowell County. Approximately 2.1 miles upstream of the Railroad ...... None +1,194 Shoal Creek ...... At the confluence with Cane Creek (near Dysartsville) .... None +1,028 Unincorporated Areas of McDowell County. Approximately 1.2 miles upstream of State Route 1775 ... None +1,345 South Fork Tom Creek ...... At the confluence with Tom Creek ...... None +1,457 Unincorporated Areas of McDowell County. Approximately 0.3 mile upstream of the confluence with None +1,489 Tom Creek. South Muddy Creek ...... At the confluence with Muddy Creek and North Muddy None +1,089 Unincorporated Areas of Creek. McDowell County. Approximately 0.7 mile upstream of State Route 1780 .... None +1,331 South Muddy Creek Tributary At the confluence with South Muddy Creek ...... None +1,107 Unincorporated Areas of 1. McDowell County. At the Burke/McDowell County boundary ...... None +1,124 South Muddy Creek Tributary At the confluence with South Muddy Creek ...... None +1,123 Unincorporated Areas of 2. McDowell County. Approximately 600 feet upstream of State Route 1767 .... None +1,143 Stanfords Creek ...... At the confluence with Goose Creek ...... None +1,239 Unincorporated Areas of McDowell County. Approximately 2.1 miles upstream of the confluence with None +1,346 Goose Creek. Swannanoa Creek ...... At the confluence with Mill Creek ...... None +1,603 Unincorporated Areas of McDowell County. Approximately 0.7 mile upstream of the confluence with None +1,702 Mill Creek. Thompsons Fork ...... At the confluence with North Muddy Creek ...... None +1,101 Unincorporated Areas of McDowell County. Approximately 200 feet downstream of State Route 1747 None +1,181 Tom Creek ...... At the confluence with Catawba River ...... +1,227 +1,229 Unincorporated Areas of McDowell County. Approximately 280 feet upstream of State Route 1440 .... None +1,637 Tom Creek Tributary 1 ...... At the confluence with Tom Creek ...... None +1,418 Unincorporated Areas of McDowell County. Approximately 1,300 feet upstream of State Route 1433 None +1,488 Walton Crowley Branch ...... At the confluence with North Muddy Creek ...... None +1,119 Unincorporated Areas of McDowell County. Approximately 1,230 feet upstream of State Route 1760 None +1,139 West Fork Cove Creek ...... At the confluence with Cove Creek and Morgan Creek None +1,196 Unincorporated Areas of (near Sugar Hill). McDowell County. Approximately 1.3 miles upstream of State Route 1001 ... None +1,259 Youngs Fork ...... At the confluence with North Muddy Creek ...... None +1,205 Unincorporated Areas of McDowell County, City of Marion. Approximately 125 feet downstream of Glenview Street .. None +1,327
* National Geodetic Vertical Datum. # Depth in feet above ground. + North American Vertical Datum. ADDRESSES City of Marion Maps available for inspection at the Marion City Hall, 194 North Main Street, Marion, North Carolina. Send comments to The Honorable Averett Clark, Mayor of the City of Marion, P.O. Box 700, Marion, North Carolina 28752. Town of Old Fort Maps available for inspection at the Old Fort Town Hall, 38 South Catawba Avenue, Old Fort, North Carolina. Send comments to The Honorable Garland Norton, Mayor of the Town of Old Fort, P.O. Box 520, Old Fort, North Carolina 28762. Unincorporated Areas of McDowell County
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#Depth in feet above ground. *Elevation in feet (NGVD) Source of flooding Location of referenced elevation +Elevation in feet Communities affected (NAVD) Effective Modified
Maps available for inspection at the McDowell County Administration Building, 60 East Court Street, Marion, North Carolina. Send comments to Mr. Charles Abernathy, McDowell County Manager, 60 East Court Street, Marion, North Carolina 28752.
Northampton County, North Carolina and Incorporated Areas
Black Duck Creek ...... At the confluence with Lees Creek ...... None +66 Unincorporated Areas of Northampton County, Town of Gaston. Approximately 0.7 mile upstream of Cal Floyd Road None +193 (State Route 1210). Bridges Creek Tributary 2 ..... At the confluence with Bridges Creek ...... +40 +42 Unincorporated Areas of Northampton County. Approximately 250 feet downstream of Chapel Hill Road None +60 Chockoyotte Creek ...... At the confluence with Roanoke River ...... +55 +57 Unincorporated Areas of Northampton County. At the confluence with Roanoke River (the Northampton/ +56 +59 Halifax County boundary). Devils Branch ...... At the confluence with Roanoke River ...... +134 +135 Unincorporated Areas of Northampton County. Approximately 3.1 miles upstream of the confluence with None +196 Roanoke River. Gumberry Swamp ...... At the downstream side of Barrows Mill Road (State None +47 Unincorporated Areas of Route 1126). Northampton County. Approximately 300 feet upstream of railroad ...... None +124 Lees Creek ...... At the confluence with Roanoke River ...... None +66 Unincorporated Areas of Northampton County, Town of Gaston. Approximately 450 feet downstream of Graysburg Road None +85 Lees Creek Tributary 1 ...... At the confluence with Lees Creek ...... None +69 Unincorporated Areas of Northampton County, Town of Gaston. Approximately 250 feet downstream of Graysburg Road None +136 Lilly Pond Creek ...... Approximately 1.1 miles upstream of the confluence with None +47 Unincorporated Areas of Gumberry Swamp. Northampton County, Town of Jackson. Approximately 1,500 feet upstream of Depot Street ...... None +92 Occoneechee Creek ...... Approximately 4.5 miles upstream of the confluence with None +47 Unincorporated Areas of Roanoke River. Northampton County. Approximately 1.1 miles upstream of Jackson By-Pass None +109 Road (State Route 1311). Occoneechee Creek Tribu- At the confluence with Occoneechee Creek ...... None +50 Unincorporated Areas of tary 1. Northampton County. Approximately 0.9 mile downstream of the confluence None +51 with Occoneechee Creek. Occoneechee Creek Tribu- At the confluence with Occoneechee Creek ...... None +81 Unincorporated Areas of tary 2. Northampton County. Approximately 2.7 miles upstream of the confluence with None +97 Occoneechee Creek. Roanoke River ...... At the Northampton/Bertie/Halifax County boundary ...... +35 +34 Unincorporated Areas of Northampton County, Town of Gaston. At the Northampton/Warren County boundary ...... +204 +203 Roanoke River Tributary 12 .. At the confluence with Roanoke River ...... +134 +133 Unincorporated Areas of Northampton County. Approximately 0.5 mile upstream of NC–46 ...... None +196 Roanoke River Tributary 12A At the confluence with Roanoke River Tributary 12 ...... None +150 Unincorporated Areas of Northampton County. Approximately 0.4 mile upstream of Dr. Hall Road (State None +184 Route 1218). Roanoke River Tributary 14 .. At the confluence with Roanoke River ...... +134 +133 Unincorporated Areas of Northampton County. Approximately 50 feet downstream of NC–46 ...... None +185 Roanoke River Tributary 14A At the confluence with Roanoke River Tributary 14 ...... None +164 Unincorporated Areas of Northampton County. Approximately 0.8 mile upstream of NC–46 ...... None +233 Roanoke River Tributary 7.... Approximately 1,500 feet upstream of the confluence None +45 Unincorporated Areas of with Roanoke River. Northampton County.
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#Depth in feet above ground. *Elevation in feet (NGVD) Source of flooding Location of referenced elevation +Elevation in feet Communities affected (NAVD) Effective Modified
Approximately 1.7 mile upstream of the confluence with None +70 Roanoke River. Roanoke River Tributary 8 .... At the confluence with Roanoke River ...... +45 +46 Unincorporated Areas of Northampton County. Approximately 1.2 miles upstream of the confluence with None +69 Roanoke River. Sandy River Tributary 3 ...... At the confluence with Sandy Run ...... None +37 Unincorporated Areas of Northampton County. Approximately 0.5 mile upstream of the confluence with None +46 Sandy Run. Sandy Run ...... At the confluence with Roanoke River ...... +35 +34 Unincorporated Areas of Northampton County. Approximately 0.6 mile upstream of State Highway 308 .. None +60 Sandy Run Tributary 1 ...... At the confluence with Sandy Run ...... None +37 Unincorporated Areas of Northampton County. Approximately 0.7 mile upstream of the confluence with None +60 Sandy Run. Trouble Field Creek ...... At the confluence with Roanoke River ...... +53 +55 Unincorporated Areas of Northampton County. Approximately 1.8 miles upstream of the confluence with None +61 Roanoke River.
* National Geodetic Vertical Datum. # Depth in feet above ground. + North American Vertical Datum. ADDRESSES Town of Gaston Maps available for inspection at the Gaston Town Hall, 223 Craig Street, Gaston, North Carolina. Send comments to The Honorable Danny Tolbert, Mayor of the Town of Gaston, P.O. Drawer M, Gaston, North Carolina 27832. Town of Jackson Maps available for inspection at the Jackson Town Hall, 100 East Jefferson Street, Jackson, North Carolina. Send comments to The Honorable John McKellar, Mayor of the Town of Jackson, P.O. Box 614, Jackson, North Carolina 27845 Unincorporated Areas of Northampton County Maps available for inspection at the Northampton County Office, 108 West Jefferson Street, Jackson, North Carolina. Send comments to Mr. Wayne Jenkins, Northampton County Manager, P.O. Box 808, Jackson, North Carolina 27845.
Person County, North Carolina and Incorporated Areas
Big Blue Wing Creek ...... Approximately 1,300 feet downstream of High View None +403 Unincorporated Areas of Church Road (State Route 1509). Person County. Approximately 0.7 mile upstream of Tatum Road (State None +506 Route 1511). Big Blue Wing Tributary 1 ..... Approximately 2,000 feet downstream of Wind Dancer None +399 Unincorporated Areas of Lane. Person County. Approximately 0.4 mile upstream of Epps-Martin Road None +450 (State Route 1506). Bowes Branch ...... At the Virginia/North Carolina State boundary ...... None +361 Unincorporated Areas of Person County. Approximately 1,440 feet upstream of Virginia/North None +368 Carolina State boundary. Bredlov Creek ...... At the confluence with Big Blue Wing Creek ...... None +407 Unincorporated Areas of Person County. Approximately 1,400 feet upstream of the confluence None +413 with Big Blue Wing Creek. Broachs Mill Creek ...... At the confluence with South Hyco Creek ...... None +433 Unincorporated Areas of Person County. Approximately 0.9 mile upstream of Hester’s Store Road None +515 (State Route 1162). Castle Creek ...... At the confluence with Hyco River ...... None +360 Unincorporated Areas of Person County. Approximately 790 feet downstream of Shiloh Church None +394 Road (State Route 1322). Cattail Branch ...... At the confluence with Big Blue Wing Creek ...... None +428 Unincorporated Areas of Person County. Approximately 1,750 feet upstream of the confluence None +437 with Big Blue Wing Creek.
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#Depth in feet above ground. *Elevation in feet (NGVD) Source of flooding Location of referenced elevation +Elevation in feet Communities affected (NAVD) Effective Modified
Cobbs Creek ...... Approximately 0.8 mile upstream of the confluence with None +413 Unincorporated Areas of Hyco Lake. +414 Person County. At the Person/Caswell County boundary ...... None +510 Ghents Creek ...... At the confluence with Hyco River ...... None +367 Unincorporated Areas of Person County. Approximately 1,400 feet upstream of Edwin Robertson None +387 Road (State Route 1322). Hyco River ...... Approximately 1.4 miles downstream of Railroad ...... None +358 Unincorporated Areas of Person County. At the Hyco Dam ...... None +380 Hyco River Tributary 1 ...... At the confluence with Hyco River ...... None +380 Unincorporated Areas of Person County. Approximately 600 feet upstream of the confluence with None +380 Hyco River. Marlowes Creek ...... At the upstream side of Cavel Chub Lake Road ...... +470 +469 Unincorporated Areas of Person County, City of Roxboro. Approximately 860 feet upstream of Depot Street ...... +617 +610 Marlowes Creek Tributary 1 At the confluence with Marlowes Creek ...... +470 +469 Unincorporated Areas of Person County. Approximately 840 feet upstream of Chub Lake Road None +680 (State Route 1337). Marlowes Creek Tributary 1A At the confluence with Marlowes Creek Tributary 1 ...... None +464 Unincorporated Areas of Person County. Approximately 0.5 mile upstream of Chub Lake Road None +656 (State Route 1337). Marlowes Creek Tributary 2 At the confluence with Marlowes Creek ...... +554 +552 Unincorporated Areas of Person County, City of Roxboro. Approximately 0.5 mile upstream of Broad Road (State None +617 Route 1534). Mayo Creek ...... Approximately 740 feet downstream of Mayo Lake Road None +349 Unincorporated Areas of (State Route 1501). Person County. Approximately 0.8 mile upstream of Denny’s Store Road None +511 (State Route 1536). Mayo Creek Tributary 14 ...... At the confluence with Mayo Creek ...... None +444 Unincorporated Areas of Person County. Approximately 1,300 feet upstream of the confluence None +444 with Mayo Creek. Mayo Creek Tributary 15 ...... At the confluence with Mayo Creek ...... None +450 Unincorporated Areas of Person County. Approximately 0.5 mile upstream of the confluence with None +475 Mayo Creek. Mill Creek ...... Approximately 400 feet downstream of Street’s Store +444 +445 Unincorporated Areas of Road (State Route 1519). Person County. Approximately 530 feet upstream of Todd Road (State None +559 Route 1547). Powells Creek ...... At the confluence with Hyco River ...... None +367 Unincorporated Areas of Person County. Approximately 0.7 mile upstream of the confluence with None +367 Hyco River. Satterfield Creek ...... At the confluence with Storys Creek ...... None +489 Unincorporated Areas of Person County. Approximately 1.2 miles upstream of City Lala Road None +491 (State Route 1836). South Hyco Creek ...... At the upstream side of Brewer Road (State Route 1343) None +415 Unincorporated Areas of Person County. Approximately 1.0 mile upstream of State Highway 49 .... None +543 South Hyco Creek Tributary At the confluence with South Hyco Creek ...... None +516 Unincorporated Areas of 2. Person County. Approximately 1,900 feet upstream of the confluence None +553 with South Hyco Creek. South Hyco Creek Tributary At the confluence with South Hyco Creek ...... None +540 Unincorporated Areas of 8. Person County. Approximately 400 feet upstream of Jones Road (State None +602 Route 1100).
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#Depth in feet above ground. *Elevation in feet (NGVD) Source of flooding Location of referenced elevation +Elevation in feet Communities affected (NAVD) Effective Modified
Storys Creek ...... At the confluence with Hyco River ...... None +366 Unincorporated Areas of Person County. Approximately 0.6 mile upstream of City Lake Road None +489 (State Route 1336). Tanyard Branch ...... At the downstream side of Railroad ...... +569 +570 City of Roxboro. Approximately 1,300 feet upstream of North Morgan None +658 Street.
* National Geodetic Vertical Datum. # Depth in feet above ground. + North American Vertical Datum. ADDRESSES City of Roxboro Maps available for inspection at the Roxboro City Planning Department, 105 South Lamar Street, Roxboro, North Carolina. Send comments to The Honorable Steve Joyner, Mayor of the City of Roxboro, P.O. Box 128, Roxboro, North Carolina 27573. Unincorporated Areas of Person County Maps available for inspection at the Person County Planning and Zoning Department, 20A Court Street, Roxboro, North Carolina. Send comments to Mr. Steve Carpenter, Person County Manager, 304 South Morgan Street, Room 212, Roxboro, North Carolina 27573.
Union County, North Carolina and Incorporated Areas
Bates Branch ...... At the confluence with East Fork Twelvemile Creek ...... +525 +526 Unincorporated Areas of Union County, Town of Mineral Springs. Approximately 150 feet downstream of McNeely Road .... None +603 Blue Branch ...... At the confluence with Cane Creek ...... None +510 Unincorporated Areas of Union County. Approximately 0.4 mile upstream of Bud Huey Road None +549 (State Route 115). Blythe Creek ...... At the confluence with East Fork Twelvemile Creek ...... +511 +510 Unincorporated Areas of Union County, Town of Waxhaw. Approximately 1.0 mile upstream of Waxhaw Highway .... None +607 Blythe Creek Tributary ...... At the confluence with Blythe Creek ...... None +554 Unincorporated Areas of Union County. Approximately 0.4 mile upstream of the confluence with None +564 Blythe Creek. Booger Branch ...... At the confluence with Cane Creek ...... None +514 Unincorporated Areas of Union County. Approximately 0.7 mile upstream of the confluence with None +577 Booger Branch Tributary 2. Booger Branch Tributary 1 ... At the confluence with Booger Branch ...... None +514 Unincorporated Areas of Union County. Approximately 0.8 mile upstream of Bud Huey Road None +561 (State Route 1115). Booger Branch Tributary 2 ... At the confluence with Booger Branch ...... None +550 Unincorporated Areas of Union County. Approximately 1.4 miles upstream of the confluence with None +611 Booger Branch. Cane Creek...... Approximately 300 feet downstream of the Lancaster None +502 Unincorporated Areas of County, South Carolina/Union County, North Carolina Union County. State boundary. Approximately 250 feet upstream of Rocky River Road None +647 (State Route 522). Cane Creek Tributary 1 ...... At the confluence with Cane Creek ...... None +562 Unincorporated Areas of Union County. Approximately 1.1 miles upstream of Cane Creek Road None +612 (State Route 1221). Cane Creek Tributary 2 ...... At the confluence with Cane Creek ...... None +580 Unincorporated Areas of Union County. Approximately 0.6 mile upstream of the confluence with None +607 Cane Creek. Cane Creek Tributary 3 ...... At the confluence with Cane Creek ...... None +586 Unincorporated Areas of Union County. Approximately 0.6 mile upstream of the confluence with None +604 Cane Creek.
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#Depth in feet above ground. *Elevation in feet (NGVD) Source of flooding Location of referenced elevation +Elevation in feet Communities affected (NAVD) Effective Modified
Cowhorn Branch ...... At the confluence with Tarkill Branch ...... None +552 Unincorporated Areas of Union County, Village of Marvin. Approximately 0.4 mile upstream of Waxhaw Marvin None +572 Road (State Route 1307). Culvert Branch ...... Approximately 700 feet upstream of the confluence with +557 +558 Unincorporated Areas of West Fork Twelvemile Creek. Union County. Approximately 1,000 feet upstream of Timber Lane ...... None +647 Davis Branch ...... At the confluence with Waxhaw Creek ...... None +512 Unincorporated Areas of Union County. Approximately 1.5 miles upstream of the confluence with None +584 Davis Branch Tributary 1. Davis Branch Tributary 1 ...... At the confluence with Davis Branch ...... None +535 Unincorporated Areas of Union County. Approximately 1.5 miles upstream of the confluence with None +614 Davis Branch. Davis Mine Creek ...... Approximately 120 feet downstream of Waxhaw-Indian None +601 Unincorporated Areas of Trail Road. Union County, Village of Wesley Chapel, Town of Indian Trail, Town of Stal- lings, Town of Weddington. Approximately 650 feet upstream of Lakewood Drive ...... None +722 Davis Mine Creek Tributary 1 At the confluence with Davis Mine Creek ...... None +649 Town of Indian Trail. Approximately 1,500 feet upstream of McLendon Road ... None +682 East Fork Twelvemile Creek Approximately 0.9 mile upstream of the confluence with +512 +511 Unincorporated Areas of Twelvemile Creek and West Fork Twelvemile Creek. Union County, Village of Wesley Chapel, Town of Indian Trail, Town of Min- eral Springs, Town of Waxhaw. Approximately 1,710 feet upstream of Grayson Parkway None +621 East Fork Twelvemile Creek At the confluence with East Fork Twelvemile Creek ...... +521 +520 Unincorporated Areas of Tributary 1. Union County, Village of Wesley Chapel. Approximately 735 feet upstream of Farm Creek Road ... None +560 East Fork Twelvemile Creek At the confluence with East Fork Twelvemile Creek ...... +524 +522 Unincorporated Areas of Tributary 2. Union County, Village of Wesley Chapel. Approximately 1.1 miles upstream of the confluence with None +545 East Fork Twelvemile Creek. East Fork Twelvemile Creek At the confluence with East Fork Twelvemile Creek ...... None +562 Unincorporated Areas of Tributary 3. Union County, City of Monroe, Village of Wesley Chapel. Approximately 1,300 feet upstream of Sanford Lane None +650 (State Route 1394). East Fork Twelvemile Creek At the confluence with East Fork Twelvemile Creek ...... None +583 Unincorporated Areas of Tributary 4. Union County, Village of Wesley Chapel, Town of Indian Trail. Approximately 1.2 miles upstream of Mayflower Trail ...... None +620 East Fork Twelvemile Creek At the confluence with East Fork Twelvemile Creek ...... None +597 Unincorporated Areas of Tributary 5. Union County, City of Monroe, Town of Indian Trail. Approximately 725 feet downstream of Capital Drive ...... None +639 East Fork Twelvemile Creek At the confluence with East Fork Twelvemile Creek ...... None +610 Unincorporated Areas of Tributary 6. Union County, Town of In- dian Trail. Approximately 0.5 mile upstream of the confluence with None +629 East Fork Twelvemile Creek. Glen Branch ...... At the confluence with Waxhaw Creek ...... None +592 Unincorporated Areas of Union County. Approximately 0.6 mile upstream of Nesbit Road (State None +633 Route 1131).
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#Depth in feet above ground. *Elevation in feet (NGVD) Source of flooding Location of referenced elevation +Elevation in feet Communities affected (NAVD) Effective Modified
Keener Branch ...... At the confluence with Waxhaw Creek ...... None +513 Unincorporated Areas of Union County. Approximately 0.9 mile upstream of Farmbrook Drive None +539 (State Route 1271). Lee Branch ...... At the confluence with Bates Branch ...... None +541 Town of Mineral Springs. Approximately 375 feet downstream of Waxhaw-Monroe None +618 Road (State Route 111). Lee Branch Tributary 1 ...... At the confluence with Lee Branch ...... None +603 Town of Mineral Springs. Approximately 0.5 mile upstream of the confluence with None +625 Lee Branch. Lee Branch Tributary 1A ...... At the confluence with Lee Branch Tributary 1 ...... None +603 Town of Mineral Springs. Approximately 1,250 feet upstream of the confluence None +617 with Lee Branch Tributary 1. Little Twelvemile Creek ...... Approximately 50 feet downstream of Potter Road (State None +553 Unincorporated Areas of Route 1162). Union County, Town of Mineral Springs. Approximately 0.9 mile upstream of Crow Road ...... None +635 Little Twelvemile Creek Trib- At the confluence with Little Twelvemile Creek ...... None +563 Unincorporated Areas of utary 1. Union County. Approximately 925 feet upstream of Porter Drive (State None +600 Route 2552). Little Twelvemile Creek Trib- At the confluence with Little Twelvemile Creek ...... None +588 Unincorporated Areas of utary 2. Union County, Town of Mineral Springs. Approximately 1,500 feet upstream of Old Waxhaw-Mon- None +626 roe Road (State Route 1149). Machine Branch ...... At the confluence with East Fork Twelvemile Creek ...... +516 +517 Unincorporated Areas of Union County. Approximately 780 feet downstream of Waxhaw-Indian None +573 Trail Road (State Route 1008). Marvin Branch ...... At the confluence with Sixmile Creek ...... +572 +577 Village of Marvin. Approximately 1,150 feet upstream of Saddle Avenue ..... None +605 McBride Branch ...... At the confluence with Sixmile Creek ...... +580 +583 Unincorporated Areas of Union County, Village of Marvin. Approximately 385 feet upstream of Kentucky Derby None +652 Drive (State Route 3248). McBride Branch Tributary 1 .. At the confluence with McBride Branch ...... None +601 Unincorporated Areas of Union County. Approximately 950 feet upstream of Beckford Glen Drive None +624 (State Route 2679). McNeely Branch ...... At the confluence with Blythe Creek ...... None +571 Unincorporated Areas of Union County, Town of Waxhaw. Approximately 1.6 miles upstream of Waxhaw Highway .. None +616 Missouri Branch ...... At the confluence with Davis Branch ...... None +533 Unincorporated Areas of Union County. Approximately 0.6 mile upstream of Shady Oak Drive ..... None +599 Molly Branch ...... At the confluence with East Fork Twelvemile Creek ...... +547 +549 Unincorporated Areas of Union County. Approximately 30 feet downstream of Willoughby Road None +613 (State Route 1334). Mundys Run ...... At the confluence with West Fork Twelvemile Creek ...... +533 +535 Unincorporated Areas of Union County, Town of Weddington. Approximately 0.5 mile upstream of the confluence of None +635 Mundys Run Tributary 3. Mundys Run Tributary 1 ...... At the confluence with Mundys Run ...... None +568 Unincorporated Areas of Union County, Town of Weddington. Approximately 1,130 feet upstream of Skytop Road ...... None +613 Mundys Run Tributary 2 ...... At the confluence with Mundys Run ...... None +573 Unincorporated Areas of Union County, Town of Weddington. Approximately 0.8 mile upstream of the confluence with None +605 Mundys Run. Mundys Run Tributary 3 ...... At the confluence with Mundys Run ...... None +614 Town of Weddington. Approximately 1,460 feet upstream of Weddington Road None +638
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#Depth in feet above ground. *Elevation in feet (NGVD) Source of flooding Location of referenced elevation +Elevation in feet Communities affected (NAVD) Effective Modified
Price Mill Creek ...... Approximately 450 feet upstream of the confluence of None +592 Unincorporated Areas of Davis Mine Creek. Union County, Town of In- dian Trail. Approximately 650 feet upstream of Kennerly Drive ...... None +650 Price Mill Creek Tributary 1 .. At the confluence with Price Mill Creek ...... None +599 Unincorporated Areas of Union County, Town of In- dian Trail. Approximately 100 feet upstream of Old Charlotte High- None +646 way. Price Mill Creek Tributary 2 .. At the confluence with Price Mill Creek ...... None +633 Town of Indian Trail. Approximately 1,400 feet upstream of the confluence None +646 with Price Mill Creek. Robin Branch ...... At the confluence with Booger Branch ...... None +522 Unincorporated Areas of Union County. Approximately 500 feet upstream of Shaw Avenue ...... None +568 Rone Branch ...... Approximately 200 feet downstream of the Lancaster None +507 Unincorporated Areas of County, South Carolina/Union County, North Carolina, Union County. State boundary. Approximately 0.6 mile upstream of Rehobeth Road None +591 (State Route 1107). Rone Branch Tributary 1 ...... At the confluence with Rone Branch ...... None +515 Unincorporated Areas of Union County. Approximately 0.3 mile upstream of the confluence with None +560 Rone Branch. Simpson Branch ...... Approximately 500 feet upstream of the confluence with None +502 Unincorporated Areas of Cane Creek. Union County. Approximately 250 feet downstream of Huey Drive ...... None +518 Sixmile Creek ...... Approximately 200 feet upstream of the Lancaster Coun- +570 +575 Unincorporated Areas of ty, South Carolina/Mecklenburg and Union County, Union County, Town of North Carolina, State boundary. Weddington, Village of Marvin. Approximately 500 feet upstream of the Mecklenburg/ +625 +626 Union County boundary. Sixmile Creek Tributary 1 ..... At the confluence with Sixmile Creek ...... +577 +579 Unincorporated Areas of Union County, Village of Marvin. Approximately 920 feet upstream of Marvin Weddington None +630 Road (State Route 1316). Sixmile Creek Tributary 2 ..... Approximately 700 feet upstream of the confluence with +580 +601 Unincorporated Areas of Sixmile Creek. Union County. Approximately 1.2 miles upstream of the confluence with None +633 Sixmile Creek. Stewart Branch ...... At the confluence with Cane Creek Tributary 1 ...... None +562 Unincorporated Areas of Union County. Approximately 1,125 feet upstream of the Dam ...... None +661 Stewart Branch Tributary 1 ... At the confluence with Stewart Branch ...... None +562 Unincorporated Areas of Union County. Approximately 250 feet downstream of Tom Green Road None +607 Tarkill Branch ...... At the Lancaster County, South Carolina/Union County, None +545 Unincorporated Areas of North Carolina, State boundary. Union County, Town of Weddington, Village of Marvin. Approximately 1.4 miles upstream of New Town Road .... None +644 Twelvemile Creek Tributary 1 Approximately 500 feet upstream of the confluence with None +502 Unincorporated Areas of Twelvemile Creek. Union County, Town of Waxhaw. Approximately 0.5 mile upstream of Fox Hound Lane ...... None +537 Twelvemile Creek Tributary 2 Approximately 800 feet upstream of the confluence with None +504 Unincorporated Areas of Twelvemile Creek. Union County, Town of Waxhaw. Approximately 0.8 mile upstream of the confluence with None +523 Twelvemile Creek. Twelvemile Creek Tributary 3 Approximately 1,600 feet upstream of the confluence None +507 Unincorporated Areas of with Twelvemile Creek. Union County, Town of Waxhaw, Village of Marvin. Approximately 0.5 mile upstream of Rainbow Drive ...... None +558
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#Depth in feet above ground. *Elevation in feet (NGVD) Source of flooding Location of referenced elevation +Elevation in feet Communities affected (NAVD) Effective Modified
Twelvemile Creek Tributary 4 Approximately 1,600 feet upstream of the confluence +507 +508 Unincorporated Areas of with Twelvemile Creek. Union County, Town of Waxhaw. Approximately 300 feet upstream of Waxhaw Parkway .... None +574 Underwood Creek ...... Approximately 1,500 feet upstream of the confluence None +547 Unincorporated Areas of with Little Twelvemile Creek. Union County. Approximately 0.8 mile upstream of New Town Road ...... None +619 Waxhaw Creek ...... Approximately 1,650 feet downstream of Maggie Robin- None +487 Unincorporated Areas of son Road (State Route 1103). Union County. Approximately 100 feet downstream of Lancaster High- None +609 way/State Highway 200. Waxhaw Creek Tributary 1 ... At the confluence with Waxhaw Creek ...... None +491 Unincorporated Areas of Union County. Approximately 0.7 mile upstream of Mini-Ranch Road None +526 (State Route 1102). Waxhaw Creek Tributary 2 ... At the confluence with Waxhaw Creek ...... None +499 Unincorporated Areas of Union County. Approximately 2.8 miles upstream of the confluence with None +705 Waxhaw Creek. Waxhaw Creek Tributary 3 ... At the confluence with Waxhaw Creek ...... None +516 Unincorporated Areas of Union County. Approximately 0.6 mile upstream of Winslow Drive ...... None +539 Waxhaw Creek Tributary 4 ... At the confluence with Waxhaw Creek ...... None +555 Unincorporated Areas of Union County. Approximately 1.4 miles upstream of Morrison Avenue .... None +616 Waxhaw Creek Tributary 5 ... At the confluence with Waxhaw Creek ...... None +559 Unincorporated Areas of Union County. Approximately 0.7 mile upstream of the confluence with None +597 Waxhaw Creek. Waxhaw Creek Tributary 6 ... At the confluence with Waxhaw Creek ...... None +560 Unincorporated Areas of Union County. Approximately 0.7 mile upstream of the confluence with None +583 Waxhaw Creek. Waxhaw Creek Tributary 7 ... At the confluence with Waxhaw Creek ...... None +565 Unincorporated Areas of Union County. Approximately 1,750 feet upstream of the Dam ...... None +658 Waxhaw Creek Tributary 7A At the confluence with Waxhaw Creek Tributary 7 ...... None +578 Unincorporated Areas of Union County. Approximately 0.4 mile upstream of Nesbit Road (State None +609 Route 1131). Waxhaw Creek Tributary 7B At the confluence with Waxhaw Creek Tributary 7 ...... None +583 Unincorporated Areas of Union County. Approximately 0.6 mile upstream of the confluence with None +610 Waxhaw Creek Tributary 7. Waxhaw Creek Tributary 7C At the confluence with Waxhaw Creek Tributary 7 ...... None +591 Unincorporated Areas of Union County, Town of Waxhaw. Approximately 0.5 mile upstream of Parkwood School None +613 Road. West Fork Twelvemile Creek At the upstream side of Cuthbertson Road (State Route +512 +514 Unincorporated Areas of 1321). Union County, Village of Wesley Chapel, Town of Indian Trail, Town of Stal- lings, Town of Waxhaw, Town of Weddington. Approximately 1,070 feet upstream of the confluence of None +680 West Fork Twelvemile Creek Tributary 4. West Fork Twelvemile Creek At the confluence with West Fork Twelvemile Creek ...... +525 +526 Unincorporated Areas of Tributary 1. Union County, Town of Waxhaw, Town of Weddington. Approximately 0.4 mile upstream of New Town Road None +634 (State Route 1315). West Fork Twelvemile Creek At the confluence with West Fork Twelvemile Creek Trib- None +536 Unincorporated Areas of Tributary 1A. utary 1. Union County, Town of Waxhaw.
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#Depth in feet above ground. *Elevation in feet (NGVD) Source of flooding Location of referenced elevation +Elevation in feet Communities affected (NAVD) Effective Modified
Approximately 0.8 mile upstream of the confluence with None +576 West Fork Twelvemile Creek Tributary 1. West Fork Twelvemile Creek At the confluence with West Fork Twelvemile Creek ...... +582 +587 Unincorporated Areas of Tributary 2. Union County, Town of Weddington. Approximately 700 feet upstream of the Dam ...... None +681 West Fork Twelvemile Creek At the confluence with West Fork Twelvemile Creek Trib- None +638 Town of Weddington. Tributary 2A. utary 2. Approximately 1,790 feet upstream of the confluence None +653 with West Fork Twelvemile Creek Tributary 2. West Fork Twelvemile Creek At the confluence with West Fork Twelvemile Creek Trib- None +661 Town of Weddington. Tributary 2B. utary 2. Approximately 960 feet upstream of the confluence with None +673 West Fork Twelvemile Creek Tributary 2. West Fork Twelvemile Creek At the confluence with West Fork Twelvemile Creek ...... None +657 Unincorporated Areas of Tributary 3. Union County, Town of In- dian Trail, Town of Stal- lings. Approximately 520 feet upstream of Fairforest Drive ...... None +684 West Fork Twelvemile Creek At the confluence with West Fork Twelvemile Creek ...... None +672 Unincorporated Areas of Tributary 4. Union County, Town of In- dian Trail, Town of Stal- lings. At the Mecklenburg/Union County boundary ...... None +690
* National Geodetic Vertical Datum. # Depth in feet above ground. + North American Vertical Datum. ADDRESSES Town of Indian Trail Maps available for inspection at the Indian Trail Planning Department, 109 Navejo Trail Road, Indian Trail, North Carolina. Send comments to The Honorable Sandy Moore, Mayor of the Town of Indian Trail, 4900 Pioneer Lane, Indian Trail, North Carolina 28079. Village of Marvin Maps available for inspection at the Marvin Village Hall, 10004 New Town Road, Marvin, North Carolina. Send comments to The Honorable Mike Cognac, Mayor of the Village of Marvin, P.O. Box 399, Waxhaw, North Carolina 28177. Town of Mineral Springs Maps available for inspection at the Town of Mineral Springs Volunteer Fire and Rescue Department, 5804 Waxhaw Highway, Mineral Springs, North Carolina. Send comments to The Honorable Rick Becker, Mayor of the Town of Mineral Springs, 6603 Sadler Road, Waxhaw, North Carolina 28173. City of Monroe Maps available for inspection at the City of Monroe Planning Department, 300 West Crowell Street, Monroe, North Carolina. Send comments to The Honorable Bobby Kilgore, Mayor of the City of Monroe, 300 West Crowell Street, Monroe, North Carolina 28112. Town of Stallings Maps available for inspection at the Stallings Town Hall, 315 Stallings Road, Stallings, North Carolina. Send comments to The Honorable Lynda Paxton, Mayor of the Town of Stallings, 112 Eaglecrest Drive, Stallings, North Carolina 28104. Unincorporated Areas of Union County Maps available for inspection at the Union County Planning Department, 407 North Main Street, Room 149, Monroe, North Carolina. Send comments to Mr. Mike Shalati, Union County Manager, 500 North Main Street, Room 925, Monroe, North Carolina 28112. Town of Waxhaw Maps available for inspection at the Waxhaw Town Hall, 317 North Broom Street, Waxhaw, North Carolina. Send comments to The Honorable Gary Underwood, Mayor of the Town of Waxhaw, P.O. Box 6, Waxhaw, North Carolina 28173. Town of Weddington Maps available for inspection at the Weddington Town Hall, 1924 Weddington Road, Weddington, North Carolina. Send comments to The Honorable Nancy Anderson, Mayor of the Town of Weddington, 1924 Weddington Road, Weddington, North Carolina 28104. Village of Wesley Chapel Maps available for inspection at the Village of Wesley Chapel Town Hall, 1101 A Airport Road, Monroe, North Carolina. Send comments to The Honorable Tracy Clinton, Mayor of the Village of Wesley Chapel, 1505 Golden Rain, Wesley Chapel, North Carolina 28104.
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(Catalog of Federal Domestic Assistance No. publication of this proposed rule in a excluded from the requirements of 44 83.100, ‘‘Flood Insurance.’’) newspaper of local circulation in each CFR Part 10, Environmental Dated: October 4, 2006. community. Consideration. No environmental David I. Maurstad, ADDRESSES: The proposed BFEs for each impact assessment has been prepared. Director, Mitigation Division, Federal community are available for inspection Regulatory Flexibility Act. As flood Emergency Management Agency, Department at the office of the Chief Executive elevation determinations are not within of Homeland Security. Officer of each community. The the scope of the Regulatory Flexibility [FR Doc. E6–18328 Filed 10–31–06; 8:45 am] respective addresses are listed in the Act, 5 U.S.C. 601–612, a regulatory BILLING CODE 9110–12–P table below. flexibility analysis is not required. FOR FURTHER INFORMATION CONTACT: Regulatory Classification. This William R. Blanton, Jr., Engineering proposed rule is not a significant DEPARTMENT OF HOMELAND Management Section, Mitigation regulatory action under the criteria of SECURITY Division, 500 C Street SW., Washington, Section 3(f) of Executive Order 12866 of DC 20472, (202) 646–3151. Federal Emergency Management September 30, 1993, Regulatory SUPPLEMENTARY INFORMATION: Agency FEMA Planning and Review, 58 FR 51735. proposes to make determinations of Executive Order 13132, Federalism. BFEs and modified BFEs for each 44 CFR Part 67 This rule involves no policies that have community listed below, in accordance federalism implications under Executive [Docket No. FEMA–B–7470] with Section 110 of the Flood Disaster Order 13132. Protection Act of 1973, 42 U.S.C. 4104, Executive Order 12988, Civil Justice Proposed Flood Elevation and 44 CFR 67.4(a). Determinations These proposed BFEs and modified Reform. This rule meets the applicable BFEs, together with the floodplain standards of Executive Order 12988. AGENCY: Federal Emergency management criteria required by 44 CFR Management Agency (FEMA), List of Subjects in 44 CFR Part 67 60.3, are the minimum that are required. Department of Homeland Security, They should not be construed to mean Administrative practice and Mitigation Division. that the community must change any procedure, flood insurance, reporting ACTION: Proposed rule. existing ordinances that are more and recordkeeping requirements. SUMMARY: Technical information or stringent in their floodplain Accordingly, 44 CFR part 67 is comments are requested on the management requirements. The proposed to be amended as follows: proposed Base (1% annual chance) community may at any time enact PART 67—[AMENDED] Flood Elevations (BFEs) and proposed stricter requirements of its own, or pursuant to policies established by other BFEs modifications for the communities 1. The authority citation for part 67 listed below. The BFEs are the basis for Federal, state or regional entities. These proposed elevations are used to meet continues to read as follows: the floodplain management measures the floodplain management that the community is required either to Authority: 42 U.S.C. 4001 et seq.; requirements of the NFIP and are also adopt or to show evidence of being Reorganization Plan No. 3 of 1978, 3 CFR, used to calculate the appropriate flood 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, already in effect in order to qualify or insurance premium rates for new 3 CFR, 1979 Comp., p. 376. remain qualified for participation in the buildings built after these elevations are National Flood Insurance Program § 67.4 [Amended] made final, and for the contents in these (NFIP). buildings. 2. The tables published under the DATES: The comment period is ninety National Environmental Policy Act. authority of § 67.4 are proposed to be (90) days following the second This proposed rule is categorically amended as follows:
#Depth in feet above ground *Elevation in feet (NGVD) State City/town/county Source of flooding Location +Elevation in feet (NAVD) Existing Modified
Town of Hulett, Wyoming
WY ..... Town of Hulett...... Belle Fourche River...... Approximately 2.0 miles downstream of State None ...... +3,738 Highway 24 (at cross section A)...... Approximately 0.33 miles downstream of State None ...... +3,750 Highway 24 (approximate cross section G). WY ..... Town of Hulett ...... Belle Fourche River ...... Approximately 0.31 miles upstream of State High- None ...... +3,753 way 24 (approximate cross section J)...... Approximately 0.43 miles upstream of State High- None ...... +3,764 way 24 South (at cross section T).
* National Geodetic Vertical Datum. # Depth in feet above ground. + North American Vertical Datum. ADDRESSES Town of Hulett
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#Depth in feet above ground *Elevation in feet (NGVD) State City/town/county Source of flooding Location +Elevation in feet (NAVD) Existing Modified
Maps are available for inspection at the Town of Hulett, 123 Hill Street, Hulett, Wyoming. Send comments to the Honorable Shawn Tabke, Mayor, 123 Hill Street, Hulett, Wyoming 82720.
*Elevation in feet (NGVD) +Elevation in feet (NAVD) #Depth in feet above Flooding source(s) Location of referenced elevation ground Communities affected Effective Modified
Houston County, Georgia and Incorporated Areas
Howard Branch ...... At confluence with Sandy Run Creek ...... +308 +304 City of Warner. Approximately 690 feet upstream of confluence with +308 +307 Robins, Houston County Sandy Run Creek. (Unincorporated Areas). Redding Branch ...... At confluence with Sandy Run Creek ...... +270 +269 Houston County (Unincor- porated Areas). Approximately 630 feet upstream of confluence with +270 +269 Mossy Creek. Sandy Run Creek ...... Approximately 1,700 feet upstream of Leisure Lake +301 +302 Houston County (Unincor- Dam. porated Areas). Approximately 11,950 feet upstream of confluence of +309 +310 Howard /Branch.
* National Geodetic Vertical Datum. # Depth in feet above ground. + North American Vertical Datum. ADDRESSES Houston County (Unincorporated Areas) Maps are available for inspection at Houston County Building Inspections Department, 200 Carl Vinson Parkway, Warner Robins, Georgia. Send comments to Mr. Timothy E. Andrews, Building Official/Zoning Officer, Houston County Building Inspections Department, 200 Carl Vinson Parkway, Warner Robins, Georgia 31088. City of Warner Robins Maps are available for inspection at the City of Warner Robins Engineering Department, 700 Watson Boulevard, Warner Robins, Georgia. Send comments to Mr. Walter Gray, III, City Engineer, 700 Watson Boulevard, Warner Robins, Georgia 31093.
Sangamon County Illinois and Incorporated Areas
Lake Springfield ...... From Spaulding Dam south to Lindsey Bridge ...... None +561 City of Springfield, San- gamon County (Unincor- porated Areas).
* National Geodetic Vertical Datum. # Depth in feet above ground. + North American Vertical Datum. ADDRESSES City of Springfield Maps are available for inspection at the Springfield-Sangamon County Regional Planning Commission, 200 South 9th Street, Room 212, Springfield IL 62701. Send comments to The Honorable Tim Davlin, Mayor, City of Springfield, 300 Municipal Center East, Springfield, IL 62701. Unincorporated Areas of Sangamon County Maps are available for inspection at the Springfield-Sangamon County Regional Planning Commission, 200 South 9th Street, Room 212, Springfield IL 62701. Send comments to The Honorable Andy Van Meter, County Board Chairman, 200 South Ninth, Springfield, IL 62701.
Carroll County, Kentucky and Incorporated Areas
Ohio River ...... Western County boundary with Trimble County ...... None +465 Carroll County (Unincor- porated Areas). Eastern County boundary with Gallatin County ...... None +472
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*Elevation in feet (NGVD) +Elevation in feet (NAVD) #Depth in feet above Flooding source(s) Location of referenced elevation ground Communities affected Effective Modified
# Depth in feet above ground. * National Geodetic Vertical Datum. + National American Vertical Datum. ADDRESSES Carroll County Unincorporated Areas Maps are available for inspection at Carroll Emergency Operations Center, 829 Polk Street, Carrollton, Kentucky 41008. Send comments to Harold Tomlinson, Jr., Carroll County Judge/Executive, Carroll County Fiscal Court, 440 Main Street, 2nd Floor, Courthouse, Carrollton, Kentucky 41008.
Franklin County, Kentucky and Incorporated Areas
Penitentiary Branch ...... Approximately 660 feet upstream of the confluence None +493 Franklin County (Unincor- with the Kentucky River. porated Areas), City of Franklin. Approximately 2,820 feet upstream of U.S. Route 127 None +493
* National Geodetic Vertical Datum. # Depth in feet above ground. + North American Vertical Datum. ADDRESSES Franklin County Unincorporated Areas Maps are available for inspection at 313 West Main Street, Frankfort, Kentucky 40601. Send comments to Teresa Barton, Franklin County Judge/Executive, 313 West Main Street, County Courthouse, Frankfort, Kentucky 40601. City of Franklin Maps are available for inspection at 315 West Second Street, Frankfort, Kentucky 40602. Send comments to William I. May, Jr., Mayor, City of Frankfort , 315 West Second Street, Frankfort, Kentucky 40602.
Hardin County, Kentucky and Incorporated Areas
Buffalo Creek ...... Approximately 750 feet upstream of Poplar Street ...... None +708 City of Elizabethtown, Har- din County (Unincor- porated Areas). Approximately 2,065 feet downstream of Bluegrass None +812 Road. Hawkins Steel Tributary ...... Approximately 130 feet downstream of Steel Drive ..... None +745 City of Elizabethtown, Har- din County (Unincor- porated Areas). Approximately 615 feet upstream of Hodgenville Road None +763 Park Lane Tributary ...... From the confluence with Freeman Creek ...... *697 +702 City of Elizabethtown, Har- din County (Unincor- porated Areas). Approximately 60 feet downstream of Meadow Lane .. *731 +737 Pear Orchard Tributary ...... Approximately 545 feet downstream of Village Drive .. *715 +716 City of Elizabethtown, Har- din County (Unincor- porated Areas). Approximately 80 feet upstream of Pear Orchard *793 +789 Road.
* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ADDRESSES Hardin County (Unincorporated Areas) Maps are available for inspection at 14 Public Square, 3rd Floor, Elizabethtown, Kentucky 42701. Send comments to Harry Berry, County Judge/Executive, 100 Public Square 3rd Floor, Elizabethtown, Kentucky 42701. City of Elizabethtown Maps are available for inspection at 200 West Dixie Avenue, Elizabethtown, Kentucky 42701. Send comments to David Willmoth, Mayor, 411 West Lincoln Trail Blvd., Elizabethtown, Kentucky 40160.
Santa Fe County, New Mexico and Incorporated Areas
Admin Arroyo ...... At the confluence of Admin Arroyo and Rio Tesuque None +6291 Santa Fe County (Unincor- porated Areas). Approximately 4000 feet upstream of the intersection None +6509 of Admin Arroyo and Highway 84.
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*Elevation in feet (NGVD) +Elevation in feet (NAVD) #Depth in feet above Flooding source(s) Location of referenced elevation ground Communities affected Effective Modified
Arroyo Saiz ...... Confluence of Arroyo Saiz and Santa Fe River ...... +7034 +7033 City of Santa Fe, Santa Fe County (Unincorporated Areas). Approximately 4600 feet upstream from confluence +7180 +7171 with Santa Fe River. Arroyo Seco ...... Approximately 2500 feet upstream of the intersection None +5640 Santa Fe County (Unincor- of Highway 399 (106) and Jara Lane. porated Areas). Intersection of Arroyo Seco and Highway 84/285 ...... None +5723 Batchelor Draw ...... Intersection of Batchelor Draw and Abajo Drive ...... None +6622 Santa Fe County (Unincor- porated Areas). Intersection of Batchelor Draw and Quiet Valley Loop None +6693 Pojoaque River ...... Approximately 2300 feet upstream from confluence None +5543 Santa Fe County (Unincor- with Rio Grande. porated Areas). Confluence of the Pojoaque River and Pojoaque None +5774 Creek. Rio Tesuque...... At the confluence of Rio Tesuque and Pojoaque None +5783 Santa Fe County (Unincor- Creek. porated Areas). Downstream face of intersection of Rio Tesuque and None +5811 Highway 502. Santa Fe River ...... Approximately 2000 feet downstream from the inter- None +6261 City of Santa Fe, Santa Fe section of Sante Fe River and Paseo Real. County (Unincorporated Areas). Approximately 300 feet upstream from intersection of None +7290 Santa Fe River and Cerro Gordo Road.
* National Geodetic Vertical Datum. # Depth in feet above ground. + North American Vertical Datum. ADDRESSES City of Santa Fe Maps are available for inspection at 200 Lincoln Ave., P.O. Box 909, Santa Fe, NM 87504. Send comments to The Honorable David Coss, Mayor, 200 Lincoln Ave., Santa Fe, NM 87501. Unincorporated Areas of Santa Fe County Maps are available for inspection at Santa Fe County Courthouse, 102 Grant Ave., Santa Fe, NM 87504. Send comments to Mr. Gerald Gonzales, County Manager, P.O. Box 276, Santa Fe, NM 87504.
(Catalog of Federal Domestic Assistance No. ACTION: Proposed rule. FOR FURTHER INFORMATION CONTACT: 83.100, ‘‘Flood Insurance.’’) William R. Blanton, Jr., Engineering Dated: October 5, 2006. SUMMARY: Technical information or Management Section, Mitigation David I. Maurstad, comments are requested on the Division, 500 C Street, SW., Director, Mitigation Division, Federal proposed Base (1% annual chance) Washington, DC 20472, (202) 646–3151. Emergency Management Agency, Department Flood Elevations (BFEs) and proposed SUPPLEMENTARY INFORMATION: FEMA of Homeland Security. BFEs modifications for the communities proposes to make determinations of [FR Doc. E6–18326 Filed 10–31–06; 8:45 am] listed below. The BFEs are the basis for BFEs and modified BFEs for each the floodplain management measures BILLING CODE 9110–12–P community listed below, in accordance that the community is required either to with Section 110 of the Flood Disaster adopt or to show evidence of being Protection Act of 1973, 42 U.S.C. 4104, DEPARTMENT OF HOMELAND already in effect in order to qualify or and 44 CFR 67.4(a). SECURITY remain qualified for participation in the These proposed BFEs and modified National Flood Insurance Program BFEs, together with the floodplain Federal Emergency Management (NFIP). management criteria required by 44 CFR Agency 60.3, are the minimum that are required. DATES: The comment period is ninety They should not be construed to mean 44 CFR Part 67 (90) days following the second publication of this proposed rule in a that the community must change any existing ordinances that are more [Docket No. FEMA–P–7923] newspaper of local circulation in each community. stringent in their floodplain Proposed Flood Elevation management requirements. The Determinations ADDRESSES: The proposed BFEs for each community may at any time enact community are available for inspection stricter requirements of its own, or AGENCY: Federal Emergency at the office of the Chief Executive pursuant to policies established by other Management Agency (FEMA), Officer of each community. The Federal, State or regional entities. These Department of Homeland Security, respective addresses are listed in the proposed elevations are used to meet Mitigation Division. table below. the floodplain management
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requirements of the NFIP and are also Regulatory Classification. This Accordingly, 44 CFR Part 67 is used to calculate the appropriate flood proposed rule is not a significant proposed to be amended as follows: insurance premium rates for new regulatory action under the criteria of buildings built after these elevations are Section 3(f) of Executive Order 12866 of PART 67—[AMENDED] made final, and for the contents in these September 30, 1993, Regulatory buildings. Planning and Review, 58 FR 51735. 1. The authority citation for Part 67 National Environmental Policy Act. Executive Order 13132, Federalism. continues to read as follows: This proposed rule is categorically This rule involves no policies that have Authority: 42 U.S.C. 4001 et seq.; excluded from the requirements of 44 federalism implications under Executive Reorganization Plan No. 3 of 1978, 3 CFR, CFR Part 10, Environmental Order 13132. 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, Executive Order 12988, Civil Justice Consideration. No environmental 3 CFR, 1979 Comp., p. 376. Reform. This rule meets the applicable impact assessment has been prepared. standards of Executive Order 12988. § 67.4 [Amended] Regulatory Flexibility Act. As flood elevation determinations are not within List of Subjects in 44 CFR Part 67 2. The tables published under the the scope of the Regulatory Flexibility Administrative practice and authority of § 67.4 are proposed to be Act, 5 U.S.C. 601–612, a regulatory procedure, flood insurance, reporting amended as follows: flexibility analysis is not required. and recordkeeping requirements.
*Elevation in feet (NGVD) +Elevation in feet (NAVD) Flooding source(s) Location of referenced elevation #Depth in feet above Communities affected ground Effective Modified
Fairfield County, Ohio and Incorporated Areas
Blacklick Creek ...... Just upstream of Tussing Road ...... *827 *826 Fairfield County (Unincor- porated Areas). Approximately 190 feet Downstream of U.S. Interstate 70 *829 *828 Eastbound. Georges Creek ...... Approximately 350 feet downstream of Long Road ...... *793 *791 City of Pickerington. Approximately 150 feet upstream of Pickerington Ridge None *816 Drive. Georges Creek Overflow ...... Approximately 2,690 feet downstream of the divergence None *800 City of Pickerington. from Georges Creek. At the divergence from Georges Creek ...... None *807
* National Geodetic Vertical Datum. # Depth in feet above ground. + North American Vertical Datum. ADDRESSES Fairfield County (Unincorporated Areas) Maps are available for inspection at the Community Map Repository, Fairfield County Regional Planning Commission, 210 East Main Street, Lancaster, Ohio. Send comments to Ms. Judy Shupe, President, Board of County Commissioners, 210 East Main Street, Lancaster, Ohio 43140. City of Pickerington, Fairfield and Franklin Counties Maps are available for inspection at the Community Map Repository, City of Pickerington, City Hall, 100 Lockville Road, Pickerington, Ohio. Send comments to The Honorable David B. Shaver, Mayor, City of Pickerington, City Hall, 100 Lockville Road, Pickerington, Ohio 43147.
Franklin County, Ohio and Incorporated Areas
Blacklick Creek ...... Approximately 3,930 feet upstream of Refugee Road ...... *802 *803 City of Columbia. Approximately 300 feet downstream of U.S. Interstate 70 *829 *828 Eastbound. Coble-Bowman Ditch ...... Approximately 500 feet downstream of Bixby Road/Coun- *741 *742 Franklin County (Unincor- ty Highway 229. porated Areas). Approximately 4,500 feet upstream of Winchester Pike/ None *760 County Highway 376. Georges Creek ...... Approximately 90 feet upstream of Conrail ...... *748 *749 Franklin County (Unincor- porated Areas) Approximately 2,200 feet upstream of Long Road/County *801 *799 Village of Canal Winchester Highway 220 (limit of flooding affecting Franklin County. City of Columbus. Georges Creek Overland At the confluence with Georges Creek ...... *748 *749 Franklin County (Unincor- Flow. porated Areas). Approximately 1,440 feet upstream of confluence with *748 *749 Georges Creek. Georges Creek Split Flow ..... At the convergence with Georges Creek ...... *779 *777 Franklin County (Unincor- porated Areas). At the divergence from Georges Creek ...... *785 *784 City of Columbus. Georges Creek Overflow ...... Approximately 150 feet upstream of the convergence *795 *796 City of Columbus. with Blacklick Creek.
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*Elevation in feet (NGVD) +Elevation in feet (NAVD) Flooding source(s) Location of referenced elevation #Depth in feet above Communities affected ground Effective Modified
Approximately 3,560 feet upstream of the convergence None *800 with Blacklick Creek.
* National Geodetic Vertical Datum. # Depth in feet above ground. + North American Vertical Datum. ADDRESSES Village of Canal Winchester Maps are available for inspection at The Canal Winchester Municipal Building, 36 South High Street, Canal Winchester, Ohio. Send comments to The Honorable Jeffery J. Miller, Mayor, Village of Canal Winchester, 36 South High Street, Canal Winchester, Ohio 43110. City of Columbus Maps are available for inspection at The Building Services Division, 757 Carolyn Avenue, Columbus, Ohio. Send comments to The Honorable Michael B. Coleman, Mayor, City of Columbus, 90 West Broad Street, Room 247, Columbus, Ohio 43215. Franklin County (Unincorporated Areas) Maps are available for inspection at Franklin County Economic Development and Planning Department, 280 East Broad Street, Room 202, Co- lumbus, Ohio. Send comments to Ms. Paula Brooks, President, Franklin County Board of Commissioners, 373 South High Street, 26th Floor, Columbus, Ohio 43215.
(Catalog of Federal Domestic Assistance No. that proposed rule from November 1, Migratory Species Fishery Management 83.100, ‘‘Flood Insurance.’’) 2006, until November 13, 2006. Plan (HMS FMP) that consolidated and Dated: October 5, 2006. DATES: The deadline for written replaced previous FMPs for Atlantic David I. Maurstad, comments on the October 5, 2006 (71 FR Billfish and Atlantic Tunas, Swordfish, Director, Mitigation Division, Federal 58778) proposed rule has been extended and Sharks (October 2, 2006; 71 FR Emergency Management Agency, Department from November 1 to no later than 5 p.m. 58058). The HMS FMP is implemented of Homeland Security. on November 13, 2006. by regulations at 50 CFR part 635. [FR Doc. E6–18325 Filed 10–31–06; 8:45 am] ADDRESSES: Written comments on the On October 5, 2006 (71 FR 58778), BILLING CODE 9110–12–P proposed rule may be submitted to NMFS published a proposed rule that Michael Clark, Highly Migratory Species requested comments on the draft EA Management Division via: and scheduled three public hearings DEPARTMENT OF COMMERCE • Email: [email protected]. • Mail: 1315 East-West Highway, throughout October 2006 to receive National Oceanic and Atmospheric Silver Spring, MD 20910. Please mark comments from fishery participants and Administration on the outside of the envelope other members of the public regarding ‘‘Comments on Proposed Rule for 2007 the first 2007 fishing season for Atlantic 50 CFR Part 635 1st Trimester Season Lengths and sharks. Based on late dealer reports that Quotas.’’ may substantially change landings [I.D. 091106B] • Fax: 301–713–1917. estimates of large and small coastal RIN 0648–AU84 • Federal e-Rulemaking Portal: http:// sharks in the Gulf of Mexico during the www.regulations.gov. Include in the first trimester of 2006, NMFS is Atlantic Highly Migratory Species; subject line the following identifier: extending the comment period on this Atlantic Commercial Shark ‘‘I.D. 091106B’’. proposed rule. NMFS is still updating Management Measures Copies of the associated draft the landings estimates and will release Environmental Assessment (EA) and AGENCY: National Marine Fisheries them in a future Federal Register notice. Service (NMFS), National Oceanic and other relevant documents are available At this time, NMFS does not expect the Atmospheric Administration (NOAA), on the Highly Migratory Species landings estimates or the proposed Commerce. Management Division’s website at measures to change substantially in the www.nmfs.noaa.gov/sfa/hms or by ACTION: South Atlantic or North Atlantic Proposed rule; extension of contacting Michael Clark (see FOR comment period. regions. In order to incorporate these FURTHER INFORMATION CONTACT). updated landings and to provide SUMMARY: This action extends the FOR FURTHER INFORMATION CONTACT: adequate opportunities for public comment period for 12 days on an Michael Clark or Karyl Brewster-Geisz comment by constituents, NMFS is October 5, 2006, proposed rule by phone: 301–713–2347 or by fax: 301– extending the public comment period regarding the first 2007 fishing season 713–1917. on the proposed rule and draft EA to 5 for Atlantic sharks. Due to late dealer SUPPLEMENTARY INFORMATION: The p.m., November 13, 2006. reports that may substantially change Atlantic shark fishery is managed under landings estimates of large and small the authority of the Magnuson-Stevens Authority: 16 U.S.C. et seq.; 16 U.S.C. 1801 coastal sharks during the first trimester Fishery Conservation and Management et seq. of 2006 for the Gulf of Mexico, NMFS Act (Magnuson-Stevens Act). NMFS is extending the comment deadline on recently finalized a Consolidated Highly
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Dated: October 26, 2006. Copies of the Regulatory Impact fisheries (including British Columbia, Alan D. Risenhoover, Review (RIR) and other supporting Oregon, Washington, California, and Director, Office of Sustainable Fisheries, documents are available from Patricia A. Nova Scotia) by 1994. National Marine Fisheries Service. Kurkul, Regional Administrator, NMFS, Today the hagfish fishery relies on [FR Doc. 06–9008 Filed 10–27–06; 2:36 pm] Northeast Regional Office, One revenues from the export of whole BILLING CODE 3510–22–S Blackburn Drive, Gloucester, MA 01930. frozen hagfish product overseas, Written comments regarding the primarily to South Korea, for meat burden-hour estimates or other aspects consumption. The hagfish fishery DEPARTMENT OF COMMERCE of the collection-of-information prosecuted off the coast of Gloucester, requirements contained in this proposed MA, has changed from an inshore National Oceanic and Atmospheric rule may be submitted to the Northeast fishery comprised of small vessels to an Administration Regional Office at the above address and offshore fishery that consists of large by email to vessels. According to reports from a 50 CFR Part 648 [email protected], or by fax workshop that was held to identify the challenges in collecting information on RIN 0648–AU80 to (202) 395 7285. FOR FURTHER INFORMATION CONTACT: this fishery, the reason for this change [Docket No.061016268–6268–01; I.D. Bonnie Van Pelt, Fishery Policy in the way the fishery is being 100506E] Analyst, (978) 281–9244. conducted is that the fishery has experienced localized depletion in SUPPLEMENTARY INFORMATION: Fisheries of the Northeastern United nearshore waters, necessitating States; Regulatory Amendment to Background movement of fishing effort to areas not Modify Recordkeeping and Reporting historically fished for hagfish. and Observer Requirements A request for an information collection on hagfish under the Dealer/Processor Permitting and AGENCY: National Marine Fisheries provisions of section 402(a) of the Reporting Requirements Service (NMFS), National Oceanic and Magnuson-Stevens Fishery To meet the Council’s request for Atmospheric Administration (NOAA), Conservation and Management Act information, this proposed rule would Commerce. (Magnuson-Stevens Act) was received require all seafood dealers who intend ACTION: Proposed rule; request for by the Council on October 3, 2006. The to purchase hagfish caught in or from comments. request is based on the need to improve the Exclusive Economic Zone (EEZ) to upon the quality and quantity of be permitted under § 648.6, and to SUMMARY: Upon a request received by information available on the hagfish submit, on a weekly basis, an electronic the New England Fishery Management resource and its fishery operations to Council (Council), NMFS proposes dealer report containing the required enable the Council to determine the trip-level information for each purchase measures to modify the existing potential need to develop future of hagfish made from fishing vessels as reporting and recordkeeping management measures for hagfish under per the regulations at § 648.7. Hagfish requirements for federally permitted an FMP. Without this information dealers would be required to obtain an seafood dealers/processors, and the collection on hagfish, future initial dealer permit upon observer requirements for participating management measures may not capture implementation of the hagfish hagfish vessels. The Council has accurately the geographic and seasonal information collection requirements and determined that the modifications are aspects of the fishery, which reflect to renew the permit annually thereafter. necessary to gather additional overseas demand, and ensure that the Reports furnished by permitted dealers information on the unique aspects of the resource may be sustained in future would help determine the level of hagfish fishery and its interaction with years. This collection of information discards and discard mortality of other federally managed fisheries. The (with changes, as appropriate) may be hagfish culled at sea in response to information collected from fishery extended through the development and rejection by the dealer in port. In participants (dealers/processors and implementation of a Hagfish FMP. addition, the collection of purchase vessels) would help the Council to NMFS has made a preliminary reports would help to verify landings determine the need for, and potentially determination that the Council’s need reported in Vessel Trip Reports (VTRs) develop , a hagfish Fishery Management for a collection of information program for those vessels that have VTR Plan (FMP). on hagfish is valid and justified, and is requirements, and for those that do not, DATES: Written comments must be proposing to implement this request the dealers would be required to report received no later than 5 p.m. eastern through the publication of this rule as vessel identifiers. It is unlikely that standard time, on December 1, 2006. required by section 402(a) of the additional dealers would join the ADDRESSES: You may submit comments Magnuson-Stevens Act. The Atlantic fishery because the fishery is driven by by any of the following methods: hagfish (Myxine glutinosa) fishery in a narrowly focused export market • E-mail: [email protected]. New England (hagfish fishery) was (South Korea only), which is currently Include in the subject line the following developed in the early 1990s, with the in equilibrium with supply. However, identifier: ‘‘Comments on Hagfish first reported landings of around 1 this permitting and reporting Information Collection Program.’’ million lb (454 mt) in 1993. Korean requirement would also enable the • Federal e-Rulemaking portal: http:// buyers quickly recognized that a fishery identification of any new vessel and/or www.regulations.gov. in the New England area could provide dealer entrants into the fishery. • Mail: Patricia A. Kurkul, Regional the high-quality hagfish skins used in Administrator, NMFS, Northeast making leather, as well as hagfish meat Dealer/Processor Reports Regional Office, One Blackburn Drive, for human consumption. Reported All federally permitted seafood Gloucester, MA 01930. Mark the outside hagfish landings quadrupled during the dealers subject to this proposed rule of the envelope: ‘‘Comments on Hagfish first 4 years of the fishery (1993–1996), would be required to complete all Information Collection Program.’’ exceeding the highest reported landings sections of the Annual Processed • Fax: (978) 281–9135. in other North American hagfish Products Report (§ 648.7). The report
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could be used by the Council in NMFS looked at two alternatives to would have on hagfish fishery developing an FMP, to estimate the proposed action; i.e., the no action participants. processing capacity, and to forecast and alternative and an alternative that Certification Under § 605 of the subsequently measure the potential requires that only dealer permits/ Regulatory Flexibility Act economic impact of fishery management reporting be implemented (Alternative regulations on fish and shellfish 2). Alternative 2 would include the The Chief Counsel for Regulation of supplies. Employment data collected requirement for dealers to obtain the Department of Commerce certified through the report could also be used to Federal dealer permits to purchase to the Chief Counsel for Advocacy of the analyze the seasonality of the fishery. hagfish and to report their hagfish Small Business Administration that this purchases, but it would not include the proposed rule, if adopted, would not Observer Requirement requirement for observer coverage on have a significant economic impact on Under the hagfish information board participating vessels. The hagfish a substantial number of small entities. collection program, any vessel owner/ fishery is included in the Category II The basis and purpose of this proposed operator that fishes for, catches, or lands listing for Mixed Pot/Trap Fisheries as rule is described in the preamble to this hagfish, or intends to fish for, catch, or per the 2005 List of Fisheries under the document and is not repeated here. It is land hagfish in or from the EEZ would Marine Mammal Protection Act. This estimated that five vessels and two be required to carry an observer when alternative was not selected because of dealers, all of which are considered to requested by the Regional Administrator the importance of observer coverage for be small businesses under the relevant (RA) in accordance with § 648.11. the hagfish fishery. Observer coverage Small Business Administration Consistent with current observer could help NMFS gather information on definition of a small entity (North regulations, hagfish vessel owners/ the high discard rates that have been American Industry Classification operators would be required to call to reported in the hagfish fishery because SystemAICS code 114111, finfish arrange deployment of NMFS-approved of rejection of hagfish at the docks due fishing, with annual receipts not in excess of $4.0 million), would be observers on their vessels and to ensure to size or quality, and because the impacted by this proposed rule. Since adequate space for the observer aboard proportion of catch that is rejected by all hagfish vessels are considered small their vessels, once requested to carry an the dealer and later discarded at sea is entities, there would be no observer by the RA. Observer coverage, not currently measured. Observer disproportionate economic impact however, is funded by NMFS. (at no coverage would also be important between small and large vessels cost to them), once requested to carry an because the hagfish fishery is included resulting from this proposed observer by the RA These requests in the Category II listing for Mixed Pot/ rulemaking. In addition, there would be would be made for the purpose of Trap Fisheries as per the 2006 List of no disproportionate economic impacts monitoring fishing activities, collecting Fisheries under the Marine Mammal among vessels resulting from different Protection Act. Category II fisheries are biological data, and complying with the vessel length, gear type, or location of those commercial fisheries determined information collection program homeport, because the proposed action by the Assistant Administrator to have requirements. Observers are particularly applies to all participants in the hagfish occasional incidental mortality and important because of the high discard fishery. rates that have been reported to occur in serious injury of marine mammals. NMFS has determined that this the hagfish fishery at sea due to Therefore, understanding and proposed rule would not have a rejection of hagfish at the docks and quantifying the likelihood of marine significant economic impact on a because the proportion of the catch that mammal and sea turtle entanglements substantial number of small business is rejected by the dealer and later that may occur in hagfish gear in the entities because: (1) most dealers are discarded at sea is not currently areas fished is a necessary and integral already subject to the requirements of measured. part of the hagfish collection of electronic reporting, so the additional The hagfish observer coverage information program. electronic reporting requirements will objectives will focus on the collection of Under the no action alternative, the not impose significant additional basic fleet information and observations Council would not have the basic burden on them, and all dealers would of fishing behavior, including, but not fishery information they need to likely find electronic reporting limited to, the distribution of fishing develop an FMP for this fishery. economically beneficial to them, as the effort, number of hauls per trip, area/ Increased knowledge of this fishery may information entered into the system can depth fished, trip length, soak time, also help managers and scientists be used for multiple business purposes; discard rates of hagfish or other species, understand the factors that have (2) for those dealers not already subject gear type/configuration, and gear contributed to this species’ localized to the requirements for electronic dealer deployment methodology. depletion. Localized depletion if left to reporting, such reporting represents a Understanding and quantifying the continue could lead to increased minute portionelectronic dealer likelihood of marine mammal and sea economic impacts, as well as overall reporting would only represent a minute turtle entanglements that may occur in depletion of the species. Therefore, the portion of the firms’ overall cost of hagfish gear in the areas fished is also no action alternative would not achieve doing business (or less than 1 percent of an important observer program the objectives of the collection of average annual revenues at an estimated objective. There have been two large information program and was not average annual startup cost per dealer of whale entanglements documented in the considered a viable alternative. $116, for the first year, and $652, per hagfish fishery: one in 1997 involving dealer, thereafter for yearly operating entanglement of a finback whale, and Classification costs)due to the small size of this fishery one in 2002 involving a humpback E.O. 12866 compared to other Northeast fisheries whale. In addition, the configuration of (approximately 5 participating vessels); hagfish gear is similar enough to lobster This proposed rule is not significant and (3) the direct and indirect costs to gear that it is believed to pose the same under Executive Order 12866. NMFS dealers/processors and vessels or similar entanglement threat to large prepared an RIR that describes the associated with completing the Annual whales. impact this proposed rule, if adopted, Processed Products Rreport and
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complying with the observer List of Subjects in 50 CFR Part 648 tilefish, or Atlantic deep-sea red crab; or requirements are minimal (less than $50 Fisheries, Fishing, Reporting and a moratorium permit for summer annually), due to the fact that processor recordkeeping requirements. flounder; to carry a NMFS-approved sea reports are mailed with postage-paid sampler/observer. Also, any vessel or envelopes and observer coverage is Dated: October 26, 2006. vessel owner/operator that fishes for, funded at 100 percent by NMFS (vessel Samuel D. Rauch III, catches or lands hagfish, or intends to owners are responsible for calling to Deputy Assistant Administrator for fish for, catch, or land hagfish in or from arrange for observers and to ensure Regulatory Programs, National Marine the exclusive economic zone must carry adequate space for observers on their Fisheries Service. a NMFS-approved sea sampler/observer vessels). Based on the above analysis, For the reasons set out in the when requested by the RA in this proposed rule is not expected to preamble, 50 CFR part 648 is proposed accordance with the requirements of have a significant impact on a to be amended as follows: this section. substantial number of vessels or dealers. PART 648—FISHERIES OF THE * * * * * As a result, an initial regulatory NORTHEASTERN UNITED STATES [FR Doc. E6–18391 Filed 10–31–06; 8:45 am] flexibility analysis was not required for BILLING CODE 3510–22–S this action and none was prepared. 1. The authority citation for part 648 continues to read as follows: Collection-of-Information Requirements under the Paperwork Reduction Act Authority: 16 U.S.C. 1801 et seq. DEPARTMENT OF COMMERCE 2. In § 648.2, a new definition for This proposed rule contains four Atlantic hagfish is added, in National Oceanic and Atmospheric collection-of-information requirements alphabetical order, to read as follows: Administration subject to review and approval by the Office of Management and Budget § 648.2 Definitions. 50 CFR Part 660 (OMB) under the Paperwork Reduction * * * * * [Docket No. 061024277–6277–01; I.D. Act (PRA). These requirements have Atlantic hagfish means Myxine 101206C] been submitted to OMB for approval. glutinosa. The public’s reporting burden for the * * * * * RIN 0648–AU94 collection-of-information requirements 3. In § 648.6, paragraph (a)(1) is Fisheries Off West Coast States; includes the time for reviewing revised to read as follows: instructions, searching existing data Pacific Coast Groundfish Fishery; sources, gathering and maintaining the § 648.6 Dealer/processor permits. Advance Notice of Proposed data needed, and completing and (a) * * * (1) All dealers of NE Rulemaking to Establish a Control reviewing the collection-of-information multispecies, monkfish, skates, Atlantic Date herring, Atlantic sea scallop, Atlantic requirements. AGENCY: National Marine Fisheries deep-sea red crab, spiny dogfish, The new and revised reporting Service (NMFS), National Oceanic and summer flounder, Atlantic surf clam, requirements and the estimated time for Atmospheric Administration (NOAA), ocean quahog, Atlantic mackerel, squid, a response are as follows: 2 minutes to Commerce. request an observer; 4 minutes for a butterfish, scup, bluefish, tilefish, and black sea bass; Atlantic surf clam and ACTION: Advance notice of proposed dealer purchase report; 15 minutes and rulemaking; request for comments. 5 minutes for initial dealer permit ocean quahog processors; Atlantic application/renewal application, hagfish dealers and/or processors, and SUMMARY: NMFS and the Pacific Fishery respectively; and 30 minutes for the Atlantic herring processors or dealers, Management Council (Council) are Annual Processed Products Report. as described in § 648.2; must have been beginning to develop a groundfish Public comment is sought regarding: issued under this section, and have in fishery management plan (FMP) whether the proposed collection of their possession, a valid permit or amendment and management measures information is necessary for the proper permits for these species. to reduce harvest capacity in the open performance of the functions of the * * * * * access portion of the Pacific Coast agency, including whether the 4. In § 648.7, paragraph (a)(3)(iv) is groundfish fishery in Federal waters off information shall have practical utility; added to read as follows: Washington, Oregon, and California. the accuracy of the burden estimate; § 648.7 Recordkeeping and reporting This document announces a control ways to enhance the quality, utility, and requirements. date for the open access portion of clarity of the information to be (a) * * * September 13, 2006, and is intended to collected; and ways to minimize the (3) * * * discourage new entrants into this burden of the collection of information, (iv) Atlantic hagfish processors must fishery and increased fishing effort including through the use of automated complete and submit all sections of the based on economic speculation while collection techniques or other forms of Annual Processed Products Report. the Council determines whether and information technology. Send comments * * * * * how access should be controlled. The on these or any other aspects of the 5. In § 648.11, paragraph (a) is revised announcement is intended to promote collection of information to NMFS and to read as follows: awareness of potential eligibility criteria to OMB (see ADDRESSES). for future access to the open access Notwithstanding any other provision § 648.11 At-sea sea sampler/observer portion of the Pacific Coast groundfish of law, no person is required to respond coverage. fishery. Vessels entering the fisheries to nor shall any person be subject to a (a) The Regional Administrator may after September 13, 2006, may be penalty for failure to comply with a request any vessel holding a permit for subject to restrictions different from collection of information subject to the Atlantic sea scallops, NE multispecies, those that apply to vessels in the fishery requirements of the PRA unless that monkfish, skates, Atlantic mackerel, prior to September 13, 2006. If catch collection-of-information displays a squid, butterfish, scup, black sea bass, history is used as a basis for future currently valid OMB control number. bluefish, spiny dogfish, Atlantic herring, participation or allocation, it is likely
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that participation in the fishery after small landings with longline or trap Therefore, at their September 2006 September 13, 2006, would not count gear. meeting in Foster City, California, the toward future allocations or NMFS had previously made an Council recommended a new control participation in a limited access announcement that the Council is date of September 13, 2006, be scheme. Because potential eligibility considering additional management established to give the public advance criteria for future management measures measures to further limit harvest notice of the intent to limit entry and may be based on historical capacity or to allocate between or participation in the open access participation, fishery participants may within the limited entry commercial groundfish fishery. need to preserve records that and the recreational groundfish substantiate and verify their fisheries. In order to discourage fishers If catch history is used as a basis for participation in the groundfish fishery from intensifying their fishing efforts for participation or allocation, it is likely in Federal waters. the purpose of amassing catch history that participation in the fishery after that they speculate may aid them with September 13, 2006, would not count ADDRESSES: You may submit comments, any allocation or additional limited toward future allocations in a limited on issues and alternatives, identified by access program developed by the access scheme. Fishermen are not 111505A by any of the following Council, the Council announced on methods: guaranteed future participation in the • April 9, 1998, that any program would groundfish fishery, regardless of their E-mail: [email protected]. not include consideration of catch Include ‘‘Open Access Limitation’’ in date of entry or level of participation in landed after that date. NMFS announced the fishery. This action does not commit the subject line of the message. that the Council was planning to • Federal eRulemaking Portal: http:// the Council to develop any particular consider catch history through the 1997 management regime or to use any www.regulations.gov. season (63 FR 53637, October 6, 1998). • Fax: 503–820–2299. specific criteria for determining entry to At its April 1999 meeting, the Council the fishery. This action also does not • Mail: Dr. Donald McIsaac, Pacific reviewed a proposal to create a limited commit the Council to developing a Fishery Management Council, 7700 NE entry program to limit new entrants into management regime that uses fishing Ambassador Pl., Suite 101, Portland, the open access fishery. At its June 1999 OR, 97220. meeting, the Council further examined history in 2006 as criteria for determining future entry to the fishery. FOR FURTHER INFORMATION CONTACT: Mr. the proposal to create a limited entry The Council may choose a different John DeVore, Pacific Fishery program to limit new entrants into the control date, or may choose a Management Council, phone: 503–820– open access fishery. 2280, fax: 503–820–2299 and email: Members of the Council expressed management program that does not [email protected]; or Ms. Yvonne concerns that restricting new entrants make use of such a date. deReynier NMFS, Northwest Region, into the fishery would not adequately Implementation of any management phone: 206–526–6129, fax: 206–526– address harvest capacity concerns. Even measures for the fishery will require 6426 and email: though the need to limit new entrants amendment of the regulations [email protected]. into the open access fleet was implementing the FMP, and will also recognized, this measure did not go require amending the FMP. Any action SUPPLEMENTARY INFORMATION: forward for further development. will require Council development of Electronic Access Limited access and participation in the amendatory and regulatory proposals open access fisheries were further with public input and a supporting This Federal Register document is discussed at the November 1999 analysis, NMFS approval, and available on the Government Printing Council meeting, resulting in Office’s website at: www.gpoaccess.gov/ publication of implementing regulations establishment of a November 5, 1999, in the Federal Register. The Council fr/index/html. control date notifying the public that the also announced their intent to further Background Council was considering the need to impose additional management develop a timeline and the next steps in The Pacific Coast Groundfish Fishery measures to restrain harvest capacity in pursuing this FMP amendment next Management Plan (FMP) was approved the open access fishery. However, other year. Additional information on the on January 4, 1982 (47 FR 43964, Council initiatives, such as time and location for future meetings October 5, 1982), and has been amended development of rebuilding plans for addressing capacity reduction and 19 times. Implementing regulations for overfished groundfish species, caused a limited access in the open access fishery the FMP and its amendments are delay in limiting access in the Pacific will be provided when these meetings codified at 50 CFR part 660. On Coast groundfish open access fishery. are announced in the Federal Register. November 16, 1992, NMFS published At its September 2006 meeting, the This information will also be posted on final regulations implementing Council revisited this issue and decided the Council website (www.pcouncil.org) Amendment 6 to the FMP. Amendment to proceed with an FMP amendment to (see ADDRESSES). 6 and its implementing regulations limit access and participation in the Authority: 16 U.S.C. 1801 et seq. established a license limitation program open access fishery. The Council also and divided the Pacific Coast decided the established November 5, Dated: October 26, 2006. commercial groundfish fishery into 1999, control date (65 FR 6577, Samuel D. Rauch III, limited entry and open access segments. February 10, 2000) was no longer useful Deputy Assistant Administrator for The limited entry fishery is comprised for deciding eligibility requirements for Regulatory Programs, National Marine of permitted vessels using trawl, a new Federal limited entry permit for Fisheries Service. longline and/or trap (pot) gear. The the open access fishery. The Council [FR Doc. E6–18384 Filed 10–31–06; 8:45 am] open access fishery is comprised of noted the open access fishery had BILLING CODE 3510–22–S unpermitted vessels that use all other changed dramatically since November gear, as well as vessels that do not have 1999 and new participants are not the limited entry permits endorsed for use same as those who have traditionally with longline or trap gear but make relied on the open access fishery.
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DEPARTMENT OF COMMERCE Alaska 99501–2252, 907–271–2809, or initially implemented the program on the NMFS Alaska Region, P.O. Box November 9, 1993 (58 FR 59375). National Oceanic and Atmospheric 21668, Juneau, AK 99802, Attn: Ellen Fishing under the IFQ Program began on Administration Walsh, and on the Alaska Region, March 15, 1995. The Council and NMFS NMFS, website at http:// developed the IFQ Program to resolve 50 CFR Part 679 www.noaa.fakr.gov. the conservation and management [Docket No. 060929252–6252–01; I.D. Written comments regarding the problems commonly associated with 080106C] burden-hour estimates or other aspects open access fisheries. The preamble to of the collection-of-information the proposed rule published December RIN 0648–AS84 requirements contained in this proposed 3, 1992 (57 FR 57130) describes the rule may be submitted to NMFS, Alaska background issues leading to the Fisheries of the Exclusive Economic Region, and by email to Council’s initial action recommending Zone Off Alaska; Individual Fishing [email protected] or fax to the adoption of the IFQ Program. Quota Program; Community 202–395–7285. The IFQ Program limits access to the Development Quota Program FOR FURTHER INFORMATION CONTACT: Jay halibut and sablefish fisheries to those AGENCY: National Marine Fisheries Ginter, 907–586–7228 or persons holding quota share (QS) in Service (NMFS), National Oceanic and [email protected]. specific management areas. Federal regulations at 50 CFR part 679 Atmospheric Administration (NOAA), SUPPLEMENTARY INFORMATION: The IPHC Commerce. established under the authority of the and NMFS manage fishing for Pacific Magnuson-Stevens Act implement the ACTION: Proposed rule; request for halibut (Hippoglossus stenolepis) IFQ Program for the halibut and comments. through regulations established under sablefish fishery. Additional Federal the authority of the Halibut Act. The SUMMARY: regulations at 50 CFR part 300, subpart NMFS issues a proposed rule IPHC promulgates regulations governing to modify the Individual Fishing Quota E, and 50 CFR part 679, established the halibut fishery under the under the authority of the Halibut Act, (IFQ) Program for the fixed-gear Convention between the United States commercial Pacific halibut fishery and also govern the halibut fishery. and Canada for the Preservation of the The Council and NMFS designed the sablefish fishery by revising regulations Halibut Fishery of the Northern Pacific specific to those fisheries. This action is IFQ Program to provide economic Ocean and Bering Sea (Convention). The stability to the commercial halibut and intended to improve the effectiveness of IPHC’s regulations are subject to the Halibut and Sablefish IFQ Program sablefish fisheries. The IFQ management approval by the Secretary of State with approach was chosen to provide (IFQ Program) and is necessary to concurrence of the Secretary of promote the objectives of the Magnuson- fishermen with the ability to decide Commerce (Secretary). The IPHC how much and what type of investment Stevens Fishery Conservation and publishes regulations as annual Management Act (Magnuson-Stevens they wished to make to harvest halibut management measures pursuant to 50 or sablefish. Quota shares equate to Act) and the Northern Pacific Halibut CFR 300.62. Additional management Act of 1982 (Halibut Act) with respect individual harvesting privileges given regulations not in conflict with effect on an annual basis through the to the IFQ fisheries. regulations adopted by the IPHC (such issuance of IFQ permits. An annual IFQ DATES: Comments must be received no as the IFQ Program) may be permit authorizes the permit holder to later than December 18, 2006. recommended by the Council and harvest a specified amount of an IFQ ADDRESSES: Send comments to Sue implemented by the Secretary through species in a regulatory area. The specific Salveson, Assistant Regional NMFS to allocate harvesting privileges amount (in pounds) is determined by Administrator, Sustainable Fisheries among U.S. fishermen. the number of QS units held for that Division, Alaska Region, NMFS, Attn: The U.S. groundfish fisheries of the species, the total number of QS units Ellen Walsh. Comments may be Gulf of Alaska (GOA) and the Bering Sea issued for that species in a specific submitted by: and Aleutian Islands (BSAI) in the regulatory area, and the total amount of • Mail: P.O. Box 21668, Juneau, AK exclusive economic zone (EEZ) are the species allocated for IFQ fisheries in 99802. managed by NMFS under fishery a particular year. If the abundance of • Hand Delivery to the Federal management plans (FMPs). The FMPs halibut or sablefish decreases over time, Building: 709 West 9th Street, Room were prepared by the Council under the the total allowable catch (TAC) for that 420A, Juneau, AK. Magnuson-Stevens Act (16 U.S.C. 1801 species will decrease and, subsequently, • Fax: 907–586–7557. et seq.) and are implemented by the number of pounds on a person’s • E-mail: 0648–[email protected]. regulations at 50 CFR part 679. NMFS annual IFQ permit also will decrease. Include in the subject line of the e-mail manages fishing for sablefish By ensuring access to a certain amount the following document identifier: IFQ (Anoplopoma fimbria) through of the TAC at the beginning of the Halibut Sablefish RIN 0648–AS84. E- regulations established under the season and by extending the season over mail comments, with or without authority of the Magnuson-Stevens Act. a longer period, QS holders may attachments, are limited to 5 megabytes. NMFS manages sablefish as a determine where and when to fish, how • Webform at the Federal eRulemaking groundfish species under the FMP for much gear to deploy, and how much Portal: http://www.regulations.gov. Groundfish of the Gulf of Alaska. overall investment to make in Follow the instructions at that site for Sablefish also remain subject to the harvesting. submitting comments. same IFQ Program that allocates halibut The Council and NMFS also intended Copies of the Categorical Exclusion harvesting privileges among U.S. the IFQ Program to improve the long- (CE), Regulatory Impact Review (RIR), fishermen. term productivity of the sablefish and and Initial Regulatory Flexibility The Council recommended a limited halibut fisheries by further promoting Analysis (IRFA) prepared for this action access system for the fixed gear halibut the conservation and management may be obtained from the North Pacific and sablefish fisheries off Alaska, the objectives of the Magnuson-Stevens Act Fishery Management Council (Council) IFQ Program, in 1992. NMFS approved and the Halibut Act while retaining the at 605 West 4th, Suite 306, Anchorage, the IFQ Program in January 1993, and character and distribution of the fishing
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fleets as much as possible. The IFQ IFQ fisheries in the Bering Sea and proposals required. NMFS determined Program includes several provisions, Aleutian Islands regulatory areas; (4) that any medical transfer program must such as ownership caps and vessel use change the product recovery rate (PRR) remove the responsibility for making a caps, to protect small producers, part- for bled sablefish; (5) amend the halibut medical assessment from NMFS, and time participants, and entry-level QS block program; (6) allow halibut IFQ that a temporary medical transfer must participants that could be adversely derived from category D QS to be fished be based on a physician’s affected by excessive consolidation. The on category C vessels in Areas 3B and recommendation. This proposed IFQ Program also includes other 4C; and (7) allow category B QS to be emergency medical transfer system restrictions intended to prevent the used on vessels of any length for halibut would grant individuals the ability to fishery from being dominated by large and sablefish in all regulatory areas. A transfer their quota to an eligible boats or by any particular vessel class. separate Federal Register notice of individual for a short time to allow NMFS initially assigned QS to vessel availability requests comment on the principal QS holders to recuperate from categories based on vessel size and kind proposed Amendment 67 (Action 7) as the medical condition precluding their of fishery and issued QS specifically by it relates to the sablefish fishery under participation. vessel class and IFQ regulatory area. the Magnuson-Stevens Act. NMFS also In December 2004, the Council The Council and NMFS also designed a provides two administrative changes in recommended a program that would ‘‘block program’’ to guard against this proposed rule. The first allow medical transfers without excessive consolidation of QS and administrative change clarifies the jeopardizing its policy of maintaining an consequent social impacts on the fishery existing regulation related to the use of owner-operated fleet. The Council’s and dependent communities. The block sablefish IFQ with respect to the state recommended program would establish program reduced the amount of QS waters sablefish fishery. The second requirements for eligibility, application, consolidation permissible under the IFQ administrative change converts the transfer, restrictions, and appeals. Program, and slowed consolidation by nomenclature and application of the Specifically, the program would allow restricting QS transfers. The Council ‘‘IFQ Card’’ to an ‘‘IFQ Hired Master the temporary transfer of an annual IFQ later relaxed restrictions on using QS Permit.’’ Each of the proposed actions is permit or permits by an ill or injured QS across vessel categories, providing a discussed separately below. holder to a recipient eligible under 50 ‘‘fish down’’ provision allowing QS CFR 679.41(d). The eligible IFQ derived from larger catcher vessels to be Medical Transfers transferee would presumably fished on smaller vessels, with an Current regulations require catcher compensate the QS holder for the exception for Southeast Alaska. Another vessel QS holders to be aboard the transfer of his IFQ, thereby allowing the design feature of the IFQ Program vessel during harvest and offloading of injured QS holder to recoup a portion of requires IFQ holders to be on board the IFQ species, except under limited his economic losses. Therefore, medical vessel to maintain a predominantly circumstances where initial recipients transfers would allow QS holders to ‘‘owner-operated’’ fishery with a narrow of QS qualify to use hired masters or benefit from the fishery through transfer exemption for initial recipients of QS. when a QS holder experiences an of their IFQ under limited The Council created each of these emergency while at sea. Therefore, QS circumstances without substantially design features of the IFQ Program to holders who experience a short-term undermining the original owner-on- support the conservation and medical condition that prevents them board IFQ Program design. management objectives of the from fishing their IFQs cannot The Council recommended several Magnuson-Stevens Act and the Halibut temporarily transfer those IFQs. Despite provisions to ensure that the medical Act while retaining the character and a prohibitive medical condition, QS transfer would be limited to legitimate distribution of the fishing fleets as much holders generally must be aboard the medical conditions. First, the Council as possible. However, the characteristics vessel when fishing their QS. In the recommended including a declaration and needs of the fishermen changed event of an injury or illness, fishermen or affidavit signed by a ‘‘certified with the evolution of the halibut and who may not hire a master must either medical professional’’ as part of the sablefish IFQ fisheries. divest their QS or forego the economic application form that will be provided This proposed rule would amend the benefits of their QS until they recover. by NMFS. The signed declaration would IFQ Program regulations to implement The Council originally prohibited remove any discretionary responsibility seven separate actions recommended by emergency medical transfers to support from NMFS to determine whether an the Council in December 2004. Those the IFQ policy of maintaining an owner- injury or illness is substantial enough to actions affecting the halibut fishery are operated fleet with restrictive leasing preclude fishing and would be proposed under the authority of the provisions. Since 1995, NMFS and the presumed dispositive if signed by the Halibut Act. Those actions affecting the Council received several anecdotal submitting certified medical sablefish fishery are proposed under the accounts of injured or sick IFQ holders professional. Second, the Council authority of the Magnuson-Stevens Act. being transported on and off of fishing recommended clearly defining which To implement Action 7 (described vessels to meet the owner-on-board medical professionals would be allowed below) for the sablefish fishery, requirements. Because of loan to sign the medical declaration. Thus, proposed Amendment 67 to the Fishery repayment obligations and financial NMFS defined certified medical Management Plan for Groundfish of the dependence on the IFQ Program, QS professionals as physicians that fall into GOA must also be approved by the holders reportedly also engaged in three categories based on the Council’s Secretary. private arrangements to sell and recommendation. NMFS proposed The proposed actions would (1) allow repurchase their QS, which circumvents definitions for ‘‘licensed medical IFQ holders to transfer their IFQ, Council intent and places the seller and doctor,’’ ‘‘advanced nurse practitioner,’’ avoiding owner-on-board requirements, buyer at increased financial risk. and ‘‘primary community health aide’’ in the event of a medical condition NMFS previously declined to based on definitions implemented by which precludes their participation; (2) implement a proposed medical transfer the State of Alaska. Certified medical narrow restrictions for using hired because the agency did not possess the professional definitions would include masters to fish IFQ; (3) add vessel necessary expertise to make medical practitioners in states other than Alaska. clearance requirements to the sablefish assessments, which previous Council NMFS proposes these definitions
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because they are well-established and provided the QS holder can demonstrate to be used by a hired master. For longstanding definitions of the proposed ownership of the vessel which harvests instance, a catcher vessel QS holder terms within the State system and the the IFQ halibut or sablefish and who is eligible to hire a master under medical profession. Lastly, as part of the representation on the vessel by a hired the owner-on-board exception would application, the licensed medical master. This exception allows fishermen have to wait 12 months after purchasing doctor, advanced nurse practitioner, or who historically operated their fishing any vessel, regardless of whether the primary community health aide would businesses using hired masters before vessel is newly built or used, before he be required to document the medical the implementation of the IFQ Program or she may use a hired master to fish his condition and certify that the condition to retain the flexibility of using hired or her IFQ. The 12-month restriction would prevent the applicant from masters under the IFQ Program. By would eliminate the opportunity for QS participating in the halibut or sablefish limiting this exception to initial holders to form short-term agreements IFQ fisheries. recipients, the owner-on-board which transfer vessel ownership for the The Council also recommended exception will expire with the eventual duration of a fishing trip or trips, thus several additional restrictions to the transfer of all QS from initial recipients. circumventing Council intent for medical transfer provision to prevent The Council and NMFS did not maintaining an owner-operated fleet. potential abuse. Medical transfers initially define ‘‘ownership’’ and This action also proposes to allow would be valid for only the calendar received anecdotal accounts of QS vessel owners who qualify for the year in which the permit is issued. For holders retaining nominal ownership in owner-on-board exemption to continue instance, an individual who receives a a vessel, in some cases as little as one to fish under the exemption if they medical transfer for a medical condition percent, to meet the ownership experience an actual or constructive loss near the end of the season in November requirement to fish their IFQ under the of their vessel. NMFS would adapt 2006 would have to apply for and owner-on-board exception. In 1997, the similar vessel loss language from the receive a new medical transfer prior to Council and NMFS recognized that American Fisheries Act (Public Law the new IFQ season in 2007 if his or her nominal ownership in a vessel 105–277, Title II of Division C) to medical condition persists. confounded the intent of the IFQ address the vessel loss provision for the Additionally, subsequent applications Program to maintain an owner-operated IFQ Program. This exemption would for medical transfers based on the same fleet and recommended that changes to allow the use of hired masters by medical condition would be denied the owner-on-board requirement were qualified QS owners who lose their unless a certified medical professional necessary. vessels due to fire or sinking until the attests to a reasonable likelihood of In 1999, NMFS revised the owner-on- vessel is replaced exclusive of the 12- recovery. Furthermore, NMFS would board exception regulations (64 FR month ownership requirement. not approve a medical transfer if the 24960, May 10, 1999) to require QS However, this action proposes to allow applicant has received a medical holders to demonstrate vessel the use of the vessel loss exemption transfer in any 2 of the previous 5 years ownership of at least 20 percent before only if it was a legitimate actual or for the same medical condition. Medical issuing associated IFQ to a person other constructive vessel loss and not when transfer provisions and their restrictions than the named QS holder. The revised the loss results from fraud or would be found at a revised § 679.42(d) owner-on-board exception allows initial malfeasance. The revisions to the along with the emergency waiver recipients of catcher vessel QS to owner-on-board provisions would be provision. employ a hired master to fish his or her located at 50 CFR 679.42(i). The application process for a medical IFQ provided the QS holder transfer would be similar to existing demonstrates ownership of at least 20 Sablefish Vessel Clearance transfer applications under the IFQ percent of the vessel on which the hired Requirements Program. The application would consist master intends to use the IFQ. However, To address possible misreporting in of a form provided by NMFS that also current regulations do not require the BSAI by harvesters fishing in the describes the requirements necessary to specific documentation of ownership. In western GOA, the Council receive an approved medical transfer. If December 2004, the Council recommended implementing vessel NMFS denies an application for a recommended requiring explicit clearance requirements including check- medical transfer, the applicant may ownership documentation to meet the in/check-out procedures or vessel appeal the denial according to existing exception to the owner-on-board monitoring system (VMS) for all vessels appeal procedures found at § 679.43. requirement. that participate in the BSAI sablefish This action proposes to require fisheries. The Council believes fishing Owner-on-board Exception catcher vessel QS holders who wish to location misreporting is occurring due Requiring the owner of catcher vessel use hired masters to harvest IFQ halibut to increasing killer whale depredation QS to be on board the vessel while or sablefish on a Federally-licensed in the BSAI, increased costs of traveling fishing is a key element of maintaining vessel to file a U.S. Abstract of Title to the BSAI, and relatively low catch the owner/operator nature of the halibut issued by the U.S. Coast Guard with rates in the BSAI. Current regulations and sablefish fishing fleet. Hence, this NMFS. Catcher vessel QS holders who require self-reporting of fishing location requirement is intended to ensure that wish to use hired masters to harvest IFQ in the BSAI sablefish fisheries. catcher vessel QS would continue to be halibut or sablefish on a State-licensed Although no direct evidence indicates held by professional fishermen instead vessel would be required to file the fishing location misreporting, of by absentee owners or investment State of Alaska vessel registration with misreporting could affect sablefish speculators. An exception to the owner- NMFS. NMFS would require the U.S. biomass estimates and, as a result, on-board requirement is provided, Abstract of Title or State of Alaska impact the allowable biological catch however, for individuals who received vessel registration in addition to any (ABC) of sablefish or associated quotas. initial allocations of QS in vessel other information indicating ownership. The IFQ sablefish harvest fell short of category B, C, and D (catcher vessel QS). The required documentation must the sablefish TAC in the BSAI in several Initial recipients of catcher vessel QS establish that the QS holder maintained recent years. The 2003 sablefish may be absent from a vessel conducting 20 percent ownership of the vessel for landings were the lowest relative to the IFQ halibut or sablefish fishing, 12 months prior to application for IFQ TAC since the IFQ Program began.
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Killer whale depredation may be one approximately 100 BSAI sablefish QS her vessel in accordance with NMFS reason for reduced sablefish harvests in holders who do not currently possess a instructions. VMS would allow BSAI the BSAI. In 1996, the IFQ Program was VMS endorsement for other fisheries. sablefish QS holders to use the existing revised to allow the use of longline pots Therefore, a majority of the sablefish VMS procedures and equipment in the Bering Sea for sablefish after IFQ vessels subject to this action described in 50 CFR 679.28. The BSAI sablefish hook-and-line fishermen currently participate in vessel clearance proposed VMS vessel clearance faced increasing predation of hooked requirements under other programs and requirement for BSAI sablefish vessels sablefish by killer whales (61 FR 49076, would not be subject to additional would be located at 50 CFR 679.42(l). September 18, 1996). NMFS does not burden under this action. The Council proposed the visual recognize killer whale depredation as a This action proposes vessel clearance clearance options, in part, to significant biological factor affecting requirements in the BSAI sablefish accommodate small vessels that would sablefish stocks. However, industry fisheries to reduce the potential for find the VMS requirement economically anecdotal accounts suggest that BSAI misreporting of sablefish harvests from infeasible. Although OLE recommends sablefish QS holders began fishing in the Western GOA as BSAI landings. The requiring VMS for all vessels in the the Western GOA in an effort to avoid Council recommended NMFS adopt an BSAI IFQ sablefish fisheries, NMFS killer whales, which could result in option for fishermen to use either visual recognizes that VMS on small vessels fishing location misreporting of GOA clearance (a paper check-in/check-out may be economically prohibitive sablefish harvests as BSAI sablefish procedure) or VMS when participating because VMS operation and total costs harvests. Industry also cites higher in the BSAI IFQ sablefish fisheries. are disproportionate to small vessel prices for sablefish in the GOA than in However, VMS is the most effective income. The OLE believes that a the BSAI as another reason for potential mechanism to verify vessel location and minimum vessel size requirement for misreporting of BSAI sablefish as taken to effect vessel clearance. Also, the VMS would be an acceptable alternative in the GOA. NMFS Office for Law Enforcement for the visual clearance or VMS NMFS determined that fishing (OLE) maintains it does not possess the requirements. location misreporting would not affect infrastructure to support the visual NMFS specifically seeks public biomass estimates or the ABC for clearance proposal. comment on the VMS requirements of sablefish in the Alaska EEZ as long as NMFS does not support a visual this proposed rule. NMFS has analyzed fishermen report the total amount of clearance for several reasons. First, OLE alternatives for VMS requirements in catch correctly. However, misreporting, may not delegate enforcement authority the GOA that would further reduce costs if occurring, might affect area to a private entity. As a result, OLE may for small vessels (less than 32 ft (9.8 m) apportionments of ABCs because NMFS not allow processors in the BSAI to length overall (LOA)). Public comment bases area allocation of ABC on survey conduct vessel clearances similar to the could help NMFS decide whether less and fishery catch rates by area. For IPHC’s procedures for visual clearance. comprehensive BSAI VMS coverage example, if higher catch rates occur in Therefore, vessel clearance would would meet goals and reduce small the Western GOA than the BSAI, require an authorized officer, such as an vessel burden. OLE or Coast Guard officer. Second, the misreporting GOA sablefish as BSAI Bled Sablefish PRR sablefish would inflate nominal catch Council proposed allowing clearances rates for the BSAI and affect the ABC from Adak, Atka, Akutan, St. Paul, St. The Council recommended changing estimates in the BSAI. Consequently, George, and Dutch Harbor. Neither OLE the PRR for bled sablefish from 0.98 to misreporting of Western GOA catches as nor the Coast Guard maintain offices or 1.00. A PRR represents the ratio of the BSAI catches may increase the area regularly station officers in these ports, weight of product divided by the round apportionment for the BSAI and except for Dutch Harbor. Even in Dutch weight expressed as a percentage. The decrease the apportionment for the Harbor, however, OLE cannot ensure Council proposed that the current PRR GOA, thus decreasing the TAC available continuous staffing for vessel clearance for bled sablefish is unreasonable, to GOA sablefish IFQ holders. purposes. Third, OLE lacks personnel to provides no conservation benefit, This proposed action to implement monitor and review faxed vessel provides a disincentive to improved vessel clearance requirements for the clearance reports. Without the quality through bleeding, and represents BSAI sablefish IFQ fisheries would appropriate authorization, a faxed vessel an unfair reduction in sablefish IFQs correspond to existing halibut IFQ clearance has no enforcement value. because the current PRR is inaccurate. fishery vessel clearance requirements in Therefore, without authorized officers However, accurate reporting remains the the analogous halibut IFQ areas. The stationed in the proposed clearance main objective in applying PRRs to IPHC has successfully used vessel ports and available personnel to review landed fish and the PRR of 0.98 for bled clearance through a visual clearance the faxed reports, the proposed visual sablefish appears accurate as provided procedure in the halibut fisheries since vessel clearance program loses all by the scientific record. Moreover, an the 1960s. More recently, the IPHC enforcement value and becomes a accurate PRR allows for more accurate allowed a VMS option as a vessel regulatory burden with no accounting of biomass removals, thus clearance mechanism in the BSAI corresponding enforcement benefit. ensuring the harvest of sablefish halibut IFQ fisheries. Current Consequently, OLE maintains that VMS remains below the total allowable catch information indicates that 85 unique represents the only viable option. consistent with the conservation goals BSAI sablefish IFQ holders also hold VMS consists of a NMFS-approved of NMFS. Area 4 halibut IFQ and are already transmitter on a vessel that NMFS established the regulation subject to IPHC vessel clearance automatically transmits a vessel’s creating a PRR for bled sablefish in the requirements including a VMS option. position to a NMFS-approved mid–1980s. However, some processors Additionally, 26 sablefish IFQ communications service provider who might have incorrectly reported bled participants already possess a VMS relays the information to NMFS. A sablefish as ‘‘round’’ or whole fish by endorsement on their Federal Fisheries vessel owner who wishes to use the not applying the bled sablefish PRR Permit (FFP) to comply with Steller sea BSAI sablefish VMS exemption would until recently. When those buyers began lion avoidance measures in the obtain a NMFS-approved VMS appropriately applying the required PRR groundfish fisheries. This leaves transmitter and install it onboard his or to bled sablefish after contact with OLE
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officers, the sablefish QS holders sweep-up restrictions unreasonably than currently allowed. Likewise, affected by the correction lost revenues restrain their efficiencies and flexibility increased availability of unblocked QS associated with the 2 percent of the in fishing operations. Large quota would benefit buyers if it is IFQs deducted from their landed increases, consolidation, and changing accompanied by a decrease in the unit weights. use patterns within the fleet suggest that price of unblocked QS. However, the NMFS based the bled sablefish PRR the block and sweep-up provisions lack of availability of small lots of QS on research developed by the Observer should be changed. This action over time could adversely affect persons Program in the 1980s. In 2002–2003, proposes to (1) increase halibut block seeking entry-level opportunities in the NMFS scientists conducted a limits to 3 blocks unless unblocked QS fishery. cooperative study with sablefish is held, in which case the limit would This proposed action would fishermen to determine the expected remain one block; (2) divide QS blocks permanently adjust the proportion of blood loss for bled sablefish and round yielding more than 20,000 lb (9.1 mt) blocked versus unblocked QS in Areas sablefish. NMFS scientists concluded into one block of 20,000 lb (9.1 mt), 3B and 4A and responds to the increase that the cooperative study results were based on the 2004 TACs, and unblock in halibut TACs since the initiation of consistent with the original Observer the remainder in regulatory Areas 3B the IFQ Program, which has reportedly Program research and the current and 4A; and (3) increase sweep-up resulted in operational difficulties due product recovery rate of 0.98 for bled levels in regulatory Areas 2C and 3A to to large block sizes. Large block sizes sablefish remained the correct one. the 5,000 lb (2.27 mt) equivalent in 1996 make transfers prohibitively expensive Thus, NMFS notes serious concerns that QS units. The Council recommended because the price of IFQ associated with the proposal may not be based on these actions to improve the halibut a QS block increases along with the sufficient scientific evidence. However, block program while maintaining the TAC. Overall, this proposal would NMFS has determined that the proposal diversity of the IFQ longline fleet and increase economic efficiency in Areas is sufficient for publication as a preventing excessive consolidation. 3B and 4A by expanding the holdings of proposed rule for public comment. Further description of the proposed unblocked halibut QS, which may be NMFS specifically requests public changes follows. transferred more inexpensively in comment on the appropriate product smaller increments than a block. Thus, recovery rate for this product type. Block Limit Increase it would provide individual fishermen The proposed change would increase with flexibility to increase revenues and Halibut Block Program Amendments the limit on the number of blocks of decrease costs by reversing the The IFQ Program includes an element halibut QS that may be held by a person proportion of unblocked versus blocked to prevent excessive consolidation in to 3 blocks unless unblocked QS is held. QS available in these areas. Existing the halibut and sablefish fisheries and Increasing the halibut block limit to 3 holders of unblocked QS may maintain the diversity of the IFQ blocks would increase flexibility of QS experience some decrease in the value longline fleet. All initially issued QS holders in arranging transfers of QS. of the holdings as more unblocked QS that resulted in less than 20,000 lb (9.1 Existing vessel and ownership caps is generated. mt) of IFQ was ‘‘blocked’’ or issued as would continue to limit consolidation of This proposed action could result in an inseparable unit. Under current QS. a QS holder possessing unblocked QS in regulations, no person may own more Overall, this proposed action would an amount much larger than their than two QS blocks per species in any provide an opportunity for increased 20,000 lb (9.1 mt) QS block. For regulatory area, or one QS block if the economic efficiency among blocked instance, apportionment of 50,000 lb person also holds unblocked QS for that halibut QS holders by relaxing the (22.68 mt) of QS under this proposed area. For more information on the current restrictions. The relaxed action would result in one 20,000 lb (9.1 specifics of the block program see the restrictions would also enhance mt) block and 30,000 lb (13.61 mt) of proposed rule for the original IFQ operational flexibility among QS unblocked QS. The resulting 30,000 lb Program (57 FR 57130, December 3, holders because individual QS holders (13.61 mt) of QS would be fully tradable 1992). could hold more blocks available for in any increment as unblocked QS. The regulations also include a ‘‘sweep transfer, making transfers logistically An exemption would be awarded to up’’ provision designed to minimize more simple among owners. The value QS holders who, as a result of this creation of small blocks that are often of blocked QS holdings would likely action, end up with two blocks and economically disadvantageous to increase. However, unblocked QS unblocked QS. QS holders who hold harvest. The sweep up provision allows values may decrease as the price two blocks would be grandfathered in to small individual QS blocks to be differential between the two QS classes allow them to hold two blocks of QS permanently consolidated as long as the narrows. Although this action may lead plus additional unblocked QS, until resulting block does not exceed a set to increased consolidation, small such time as they transfer one of their limit. NMFS originally set the maximum holdings would remain blocked. blocks. Under the exemption, QS sweep up level at 1,000 lb (0.45 mt) for Therefore, while entry-level holders who possess two blocks would halibut and 3,000 lb (1.36 mt) for opportunities in the fishery may become be allowed to freely trade unblocked sablefish, based on 1994 TAC limits for less available because of this action, QS. However, once an exempted QS those species. After the first IFQ season, they are not necessarily precluded. holder transfers a block, they would no fishermen reported that the established longer be eligible for the exemption. QS sweep-up levels were insufficient. Block Exception for Areas 3B and 4A holders would remain subject to any Subsequently, NMFS increased This proposal would divide QS blocks applicable QS use and vessel limitations maximum sweep-up levels to 3,000 lb in regulatory Areas 3B and 4A that yield under § 679.42 as part this proposed (1.36 mt) for halibut and 5,000 lb (2.27 more than 20,000 lb (9.1 mt) into one action. mt) for sablefish based on the 1996 block and unblock the remainder based Implementation of this action would TACs (61 FR 67962, December 26, on the 2004 TACs. This change require NMFS to reassign QS as 1996). potentially may benefit QS holders in unblocked prior to the start of the IFQ Recently, halibut QS holders western areas by allowing them to season. QS certificates would be indicated that the existing block and acquire and hold more unblocked QS reissued to all affected QS holders.
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Increased management costs for the year presented a serious safety issue in Areas derived from category B QS blocks of would be partially reimbursed by the 3B and 4C because weather conditions less than 5,000 lb (2.27 mt), based on IFQ cost recovery fee and NMFS does restrict smaller vessels to shorter the 1996 TACs, is eligible to be fished not anticipate additional administrative, harvesting windows. Additionally, down on vessels smaller than 60 ft enforcement, or information costs. affected fishermen claim that fishing (18.29 m) LOA. Currently, 75 percent of during peak safety conditions may not halibut IFQ derived from category B QS Sweep-up Levels be possible for small vessels because and 96 percent of sablefish IFQ derived This proposed change also would processors may not be accepting halibut from category B QS cannot be fished increase sweep-up levels for halibut in during the peak of the salmon fisheries, down. Of the halibut IFQ derived from Areas 2C and 3A to the recommended which tend to coincide with the best category B QS that must be fished on a equivalent of 5,000 lb (2.27 mt) in 1996 weather conditions. Therefore, category vessel greater than 60 ft (18.29 m) LOA, QS units. In 1996, the Council D vessels may be limited to a about half is blocked, with block sizes previously responded to information substantially shortened season in less ranging from 6,000 lb (2.72 mt) to from the fishing industry that the safe conditions to harvest their IFQ. As 17,000 lb (7.71 mt), based on the 2004 previous sweep-up levels were lower an additional result of these conditions, TACs. For sablefish, only 7 percent of than the harvest amount of a category D vessel owners have reported the IFQ derived from category B QS that worthwhile fishing trip by increasing that they prefer to purchase category B is ineligible to be fished down is the sweep-up levels in 1996. This action and C QS because it allows them to use blocked. The affected fishing industry would increase the sweep-up limits in the resulting IFQ on larger vessels. and the Council contend that the Areas 2C and 3A consistent with the This action proposes to allow category discrepancy between the use restrictions other halibut regulatory areas and D QS to be fished on vessels less than on category B QS in Southeast Alaska would provide economic incentives for or equal to 60 ft (18.29 m) LOA in Areas compared to the rest of the State is currently unfished QS blocks to be fully 3B and 4C only. Implementation in Area discriminatory because the intended harvested. Although NMFS currently 3B would address economic hardship effect never occurred and assert that all does not know how many QS holders and safety concerns resulting from category B QS should be eligible for fish would take advantage of the increased fishing in small vessels. Implementation down to achieve equity. sweep-up limit, the change would allow in Area 4C would address reduced This action proposes to allow QS some QS holders whose QS holdings catches of IFQ derived from category D holders to fish all IFQ derived from currently exist at the 3,000 lb sweep-up QS in this area and would act in category B QS on a vessel of any length limit and the block limit to combination with a separate action in all areas, including Area 2C and the incrementally increase their QS holding allowing Area 4C IFQ holders to fish Southeast Outside District. Over time, without first selling one of their blocks. their quota in Area 4D (70 FR 43328, this action might contribute to a change Under the proposed changes, a modest July 27, 2005). The Council did not in the diversity of the IFQ fleet in increase in consolidation could occur, consider recommending this change in Southeast Alaska by decreasing the but it would not preclude entry level other regulatory areas. number of large catcher vessels that are participation. typically greater than 60 ft (18.29 m) Area 2C QS Restriction Amendment LOA. A maximum of 1,414 category B, Halibut QS Vessel Category In 1996, NMFS implemented Amendments C, and D halibut QS holders operate in regulations (61 FR 43312, August 22, Area 2C and a maximum of 440 category The Council originally designed the 1996) that allow under 60 ft (18.29 m) B and C sablefish QS holders operate in IFQ Program to preserve the diversity of LOA vessels to fish IFQ derived from the Southeast Outside District. A total of the fleet and maintain entry-level category B QS. This is known 1,996,568 QS units of halibut and opportunity in the fisheries. This was colloquially as the ‘‘fish down’’ 12,891,624 QS units of sablefish would achieved in part by assigning QS provision. However, at that time, the become eligible for the fish down holdings to halibut vessel categories A, Council recommended excluding provision under this action. B, C, and D, and restricting the use of Southeast Outside District sablefish and IFQ derived from category B QS IFQ derived from QS of one category on Area 2C halibut fisheries from the fish would likely become more valuable vessels of other categories. The QS down provision to ensure market because the QS could be used on a category determines whether harvested availability of category B QS for vessels vessel of any size. However, the increase fish may be processed onboard and the over 60 ft (18.29 m) LOA. Area 2C and in category B QS value might result in size of vessel on which the catcher Southeast Outside District fishermen an undetermined corresponding vessel IFQ may be harvested. Halibut subject to the restriction recently decrease in the value of category C and IFQ derived from category A QS may be identified the ‘‘fish down’’ exclusion as D QS. The proposed change also might harvested and processed onboard the unnecessary, inefficient, and negatively affect vessels greater than 60 assigned vessel. Category B IFQ may be burdensome because the market ft (18.29 m) LOA by making QS less fished only on vessels greater than 60 conditions originally expected to justify available for those vessels, because feet LOA, category C IFQ may be fished the provision never materialized. those vessels may only harvest IFQ on vessels greater than 35 feet but less Under current regulations, IFQ derived from category B QS. Over the than or equal to 60 feet LOA, and derived from category B QS must be long term, this action may contribute to category D IFQ may be fished on vessels used on vessels greater than 60 ft (18.29 a change in the diversity of the IFQ fleet less than or equal to 35 feet LOA. A m) LOA in Area 2C (for halibut) and the in Southeast Alaska by decreasing the 1996 regulatory amendment (61 FR Southeast Outside District (for number of catcher vessels greater than 43312, August 22, 1996) allowed halibut sablefish), unless the QS is a block of 60 ft (18.29 m) LOA participating in the IFQ derived from category B or C QS to less than or equal to 5,000 lb (2.27 mt), fishery. be fished on smaller vessels in all based on 1996 TACs. Category B QS halibut areas except Area 2C. represents a small percentage of total Administrative Changes In 1999, industry members proposed halibut QS in Area 2C and a relatively Current regulations at 50 CFR that the restrictions governing the use of small proportion of total sablefish QS in 679.1(d)(1)(i)(B) provide that the Federal IFQ derived from category D QS the Southeast Outside District. Only IFQ IFQ regulations govern commercial
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fishing for sablefish with fixed gear in Classification amendments describe the management the waters of the State of Alaska This proposed rule contains a background, the purpose and need for adjacent to the BSAI and the GOA, collection-of-information requirement action, the management alternatives, provided that a person who holds QS, subject to the Paperwork Reduction Act and the socioeconomic impacts of the an IFQ permit, or an IFQ hired master (PRA) and which has been approved by alternatives (see ADDRESSES). The RIR assesses costs and benefits of permit is aboard the vessel engaged in Office of Management and Budget available regulatory alternatives. The the fishery. The proposed change would (OMB) under OMB Control Number Council considered all quantitative and clarify NMFS’ intent that this provision 0648–0445. Public reporting per qualitative measures and chose a applies only to persons who hold response is estimated to average 12 preferred alternative based on those sablefish quota shares, sablefish IFQ minutes for a VMS check-in report, 6 measures that maximize net benefits to permits, or sablefish IFQ hired master hours for VMS installation, and 4 hours affected individuals and communities permits. If a sablefish IFQ fisherman for VMS maintenance. under the halibut and sablefish IFQ and fishes any of his IFQ in the Federal EEZ, This proposed rule also contains a CDQ programs. this provision prohibits him or her from collection-of-information requirement The IRFA prepared for each action harvesting additional sablefish with subject to review and approval by OMB assess potential impacts on small fixed gear in State waters in the same under the PRA and which has been entities for purposes of the Regulatory fishing year because his or her total IFQ submitted to OMB for approval under Flexibility Act (RFA). The Council poundage has been debited from his or OMB Control Number 0648–0272. reviewed multiple alternatives for each her IFQ account. Public reporting per response is individual action, including a ‘‘no An IFQ fisherman who either holds estimated to average 2 hours for action’’ alternative and a preferred QS or has harvested some part of his or Application for Emergency Medical alternative, in independent IRFAs. Each her annual IFQ may not participate in Transfer of IFQ and 1 hour for each independent IRFA describes the a State open access sablefish fishery proof-of-ownership document for the potential adverse impacts on small unless he or she debits all the sablefish hired master changes. Public comment entities, attributable to the proposed is sought regarding whether this harvested in the state fishery from his or alternatives for each action. proposed collection of information is her IFQ allocation. The objectives of the proposed actions necessary for the proper performance of are to amend halibut and sablefish IFQ Additionally, this action proposes to the functions of the agency, including regulations to increase efficiency and change the name of the ‘‘IFQ card’’ whether the information shall have flexibility for fishermen subject to the found at 50 CFR 679.4(d)(2) and all practical utility; the accuracy of the Halibut and Sablefish IFQ Program. The subsequent occurrences to ‘‘IFQ hired burden estimate; ways to enhance the legal basis for the proposed action is master permit’’ to provide consistency quality, utility, and clarity of the explained in the preamble of this and clarity in the regulations. The IFQ information to be collected; and ways to proposed rule. In summary, NMFS card originally served as a catch minimize the burden of the collection of manages the North Pacific halibut accounting tool necessary for both information, including through the use fisheries in Convention waters under identification and catch reporting of automated collection techniques or the authority of the Halibut Act and the through a swipe card computer other forms of information technology. sablefish fisheries in the waters of the accounting system. However, the swipe These estimates include the time for EEZ under the authority of the card computer accounting system has reviewing instructions, searching Magnuson-Stevens Act. Regulations at since been replaced, making the IFQ existing data sources, gathering and 50 CFR 300.60 through 300.65 govern card redundant and technologically maintaining the data needed, and the halibut fishery in the waters of the obsolete. This administrative correction completing and reviewing the collection United States. The annual Pacific would eliminate the redundant of information. Send comments halibut management measures for 2005 requirement for QS owners present on regarding this burden estimate, or any were published in the Federal Register board the vessel during fishing to other aspect of this data collection, on February 25, 2005 at 70 FR 9242. possess an ‘‘IFQ card’’ in addition to the including suggestions for reducing the Regulations at 50 CFR 679.1 through 50 ‘‘IFQ permit.’’ Hired masters would still burden, to NMFS (see ADDRESSEES) and CFR 679.28 govern the sablefish fishery. be required to carry the IFQ hired by e-mail to Regulations at 50 CFR 679.30 through master permit for identification [email protected], or fax to 50 CFR 679.45 govern the halibut and purposes. The administrative correction (202) 395–7285. sablefish IFQ and CDQ programs. eliminating the redundancy of the ‘‘IFQ Notwithstanding any other provision NMFS defines all halibut and card’’ for QS owners would relieve an of the law, no person is required to sablefish vessels as small businesses, for unnecessary and burdensome respond to, nor shall any person be the purpose of this analysis. In 2003, requirement. subject to a penalty for failure to comply 1,338 unique vessels made IFQ halibut with, a collection-of-information subject landings, and 409 unique vessels made Finally, this action also proposes to to the requirements of the PRA, unless sablefish landings. remove language at 50 CFR that collection-of-information displays a The number of small entities 679.42(a)(1)(i) through (ii), which currently valid OMB Control Number. operating as fishing vessels in the IFQ applied only to harvesting IFQ species No duplicative or overlapping rules fisheries may be deduced from certain in Area 4C and Area 4D during the 2005 exist that are associated with this restrictions placed on those vessels. The IFQ fishing season. This proposed proposed rule. This proposed rule has IFQ Program restricts the amount of change would not alter the rights and been determined to be not significant for annual IFQ that may be landed from any obligations of persons fishing in Area 4C purposes of Executive Order 12866. individual vessel. A vessel may be used or Area 4D in the current or future The Council recommended this action to land up to 0.5 percent of all halibut fishing seasons and remains consistent to the Secretary for adoption pursuant to IFQ TAC, or up to 1 percent of all with the final rule implementing the its authority under the Magnuson- sablefish TAC. In 2003, 295,050 lb of Area 4C and Area 4D regulatory area Stevens Act and the Halibut Act. An halibut constituted 0.5 percent of all the exemption (70 FR 43328, July 27, 2005). RIR/IRFA for the proposed regulatory halibut IFQ TAC and 348,635 lb of
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sablefish constituted 1 percent of all the in the IFQ Program. However, it is not present action. The analysis of the sablefish IFQ TAC. NMFS annually possible to estimate how many QS proposed hired master changes assumes publishes standard prices for halibut holders did not contact NMFS or the that all operations are small for RFA and sablefish that are estimates of the Council, but would have requested a purposes. ex-vessel prices received by fishermen medical transfer if it were available. The analysis of the proposed hired for their harvests. NMFS uses these This analysis assumes that all halibut master provisions reviews the status prices for calculating IFQ holder cost and sablefish QS operations are small quo, an alternative to limit the use of the recovery fee liabilities. In 2003, price for RFA purposes. hired master exception, and the data suggested that the prevailing prices This analysis summary reviews the preferred alternative. Alternative 1 were approximately $2.92 per pound for status quo of no temporary transfers and would maintain the current 20 percent halibut and $2.36 per pound for an alternative to allow medical vessel ownership requirement for sablefish (68 FR 71036, December 22, transfers. Alternative 1 is the no action catcher vessel QS holders to hire a 2003). In combination, the harvest limits or status quo alternative and would not master to harvest IFQs. Current and prices imply maximum ex-vessel have any associated adverse economic regulations do not require vessel revenues of about $1.68 million for impacts on directly regulated small ownership legal documentation and, halibut and sablefish together. Although entities. Alternative 2 would allow therefore, the requirement cannot be some halibut and sablefish IFQ medical transfers, but would require an monitored, verified, or enforced. operations participate in other revenue applicant to document his or her Alternative 2 would amend the generating activities, the halibut and medical emergency with NMFS. A regulations to require documentation of sablefish IFQ fisheries probably medical professional would also be ownership of the catcher vessel before represent the largest single source of required to file an affidavit that use of the hired master exception. annual gross receipts. describes the medical condition Options under Alternative 2 would Based upon available data, and more affecting the applicant and attests to the require continuous ownership of the general vessel economic activity inability of the applicant to participate catcher vessel upon which the IFQ information of vessels in these IFQ in the IFQ fisheries for which he or she would be fished, for a period between fisheries, no vessel subject to these holds IFQ permits during the IFQ 6 months and two years to hire a restrictions could have been used to season. In the case of a medical skipper. The preferred alternative land more than $3.5 million in condition involving a family member, modified Alternative 2 by designating a combined gross receipts in 2003. the medical professional’s affidavit 12-month period during which Therefore, all halibut and sablefish would describe the necessity for the IFQ ownership must be documented to vessels have been assumed to be ‘‘small permit holder to tend to an immediate allow the use of a hired master. entities,’’ for purposes of the IRFA. family member who suffers from the Catcher vessel QS holders who wish However, this simplifying assumption medical condition. to hire a master to catch their IFQs on likely overestimates the true number of An individual must submit an a federally licensed vessel would be small entities, since it does not take Emergency Medical Transfer form to required to file a U.S. Abstract of Title account of vessel affiliations. No reliable receive a medical transfer. Submission issued by the U.S. Coast Guard with data exists on vessel affiliation. The of information would be minimized NMFS. Catcher vessel QS holders who IRFA for each action is summarized under the requirements of the wish to hire a master to catch their IFQs separately below. Paperwork Reduction Act. on a State-licensed vessel would be NMFS is not aware of any other required to file the State of Alaska Emergency Medical Transfers Federal rules that would duplicate, vessel registration with NMFS. Since the initial implementation of overlap, or conflict with this action. NMFS is not aware of any other the halibut and sablefish IFQ Programs Federal rules that would duplicate, Owner-on-board Exception in 1995, individuals have submitted overlap, or conflict with this action. numerous petitions to NMFS and the The requirement for catcher vessel QS Council requesting the temporary holders to be onboard the vessel during Sablefish Vessel Clearance transfer of IFQs for medical reasons. harvest and offloading of IFQ species Requirements These individuals sought medical constitutes a key element of the halibut This section summarizes the impacts transfers due to the inability of IFQ and sablefish IFQ Program. The Council on small entities of the proposed holders to physically be onboard the remains concerned about alleged abuses alternatives for adding vessel clearance vessel as IFQs were fished. NMFS was of the regulatory provision allowing requirements to the BSAI sablefish previously unable to implement a vessel owners who received QS at initial fisheries. The BS and AI sablefish fixed medical transfer program recommended allocation to hire masters to harvest gear sectors have not fully harvested by the Council due to legal and their IFQs without being onboard the their TACs since the beginning of the administrative constraints. The vessel. The objective of the preferred IFQ Program. Reasons for harvest approach proposed in this action would alternative is to improve adherence to shortfalls include predation by killer resolve the issues arising from previous the owner-on-board provisions of the whales, increased costs of traveling to approaches. original program, while providing an the BSAI, and relatively low catch rates This action could directly affect 3,350 opportunity to hire a master when in the BSAI that may result in harvesters halibut QS holders and 875 sablefish QS appropriate. fishing in the western GOA and possible holders. NMFS currently does not have The preferred alternative could misreporting in the BS or AI. The sufficient ownership and affiliation directly regulate 4,300 halibut and industry has expressed concern that a information to determine the precise sablefish QS holders who hold category lack of enforcement may have resulted number of small entities in the IFQ B, C, or D QS. NMFS currently does not in misreporting of harvests taken in the Program or the number that would be have sufficient ownership and GOA as having come from the BSAI. adversely impacted by the proposed affiliation information to determine One-hundred and sixty-three unique action. Approximately 12 QS holders precisely the number of small entities in persons hold QS in the AI or BS and contact NMFS or the Council each year the IFQ Program or the number that GOA. Of these, 42 unique persons hold for information about medical transfers would be adversely impacted by the QS in all three areas, 34 unique persons
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hold QS in the AI and GOA, and 43 for bled sablefish, which would Blocked QS would become relatively unique persons hold QS in both the BS effectively eliminate the PRR. more marketable as a result. There are and GOA for a total of 119 directly Alternative 3 would change the PRR to no data available to determine whether affected small entities under Alternative 0.99. and how the alternative would change 2. This analysis assumes that all No additional recordkeeping or QS value. However, there would be no operations are small. reporting requirements are associated differential impacts on the basis of size The analysis of vessel clearance with this action. of the regulated entity attributable to alternatives reviews the status quo and NMFS is not aware of any other this proposed action, because all are the preferred alternative to add either Federal rules that would duplicate, assumed small under the RFA. visual clearance or VMS requirements. overlap, or conflict with this action. Alternative 3 would unblock all large Alternative 1 would result in no change Halibut Block Program Amendments QS blocks, which includes those to the regulations. The preferred yielding greater than 20,000 lb of alternative would implement either or Since implementation of the IFQ halibut based on 2004 TACs in all both visual clearance or VMS Program, the halibut fleet has regulatory areas. The Council modified requirements to the sablefish IFQ experienced large quota increases, Alternative 3 by limiting the preferred fishery in the BSAI as a disincentive to consolidation, and changing use alternative to only Areas 3B and 4C misreporting of catch areas. patterns. Halibut QS holders have because these areas contain the most The operator of any vessel who fishes indicated that the existing block and large QS blocks. Additional flexibility in for sablefish in the BS or AI sweep-up restrictions are cumbersome, managing QS holdings would yield management area must obtain a vessel and changing the restrictions could greater asset liquidity to holders of large clearance for the management area in improve flexibility and efficiency in QS blocks, allowing them to be more which fishing is to occur. Under the fishing operations. responsive to operational needs and preferred alternative, an operator has This action would directly regulate economic opportunities. The preferred two options. Under option one, an holders of halibut QS blocks in all IFQ alternative may also impact the value of operator obtaining a vessel clearance areas. There are 3,205 persons, both unblocked shares in Areas 3B, 4A, 4B, must obtain the clearance in person individual and collective entities, who 4C, and 4D, by increasing the proportion from the authorized clearance personnel hold at least one block of halibut QS in of unblocked QS available in those IFQ and sign the NMFS form documenting all IFQ management areas off Alaska. At areas. Benefits could accrue to holders that a clearance was obtained. Except least one block is owned by 80–90 of large QS blocks, as well as fishermen when the clearance is obtained via VHF percent of all halibut QS holders in all wishing to make adjustments to their QS radio, the authorized clearance regulatory areas, except Area 4C, where asset holdings to reflect changes in their personnel must sign the form only 69 QS holders own at least one personal circumstances, or the broader documenting that the clearance was block. At present, NOAA Fisheries does economic environment. Currently, the obtained. Under option two, any vessel not have sufficient ownership and capital demands associated with that carries a transmitting VMS affiliation information to determine transferring very large restricted blocks transmitter while fishing for sablefish in precisely the number of small entities in is reportedly prohibitive. This the BS or AI management area and until the IFQ Program, nor the number of alternative would contribute to all sablefish caught in any of these areas directly regulated small entities that alleviating this potential barrier to is landed, is exempt from the clearance would be adversely impacted by the transfer the large restricted blocks. In requirements, provided that the operator present actions. This analysis assumes any case, there would be no differential of the vessel complies with VMS that all operations are small for RFA impacts on the basis of size of the regulations. If VMS is used, the operator purposes. regulated entity attributable to this of the vessel must notify the OLE within This analysis summary reviews the preferred alternative because all are 72 hours before fishing and receive a status quo and four alternatives to the assumed small for these purposes. VMS confirmation number. existing halibut IFQ Program Alternative 4 would allow large QS NMFS is not aware of any other requirements. One alternative would block holders to divide their holding Federal rules that would duplicate, increase block limits, two alternatives into smaller blocks, potentially overlap, or conflict with this action. would ease restrictions on blocks increasing efficient use of the QS yielding greater than 20,000 lb of holding. Data are unavailable to Bled Sablefish PRR halibut, based on the 2004 TACs, and a determine the extent to which QS This action could directly affect 876 fourth would increase sweep-up limits holders would be likely to take sablefish QS holders, although only an for halibut in Areas 2C and 3A. The advantage of this option. If all large unknown subset of these IFQ holders alternatives are summarized below. holdings are divided, the alternative land their catch as bled fish. At present, Alternative 1 is the no action may impact the price of block holdings. NOAA Fisheries does not have alternative and would not have any Alternative 5 would increase the sufficient ownership and affiliation associated adverse economic impacts on sweep-up levels in Areas 2C and 3A information to determine precisely the directly regulated small entities. from a 3,000 lb equivalent to a 5,000 lb number of small entities in the IFQ Alternative 2 would increase the equivalent in QS units based on the Program or the number that would be block limit to three or four blocks under 1996 halibut TAC. This preferred adversely impacted by this action. This four options in all regulatory areas. The alternative would allow small QS block analysis assumes that all operations are Council selected Alternative 2 Option holders to incrementally increase their small. ‘‘a’’ as its preferred alternative. QS block holdings. There are no apparent adverse This analysis summary reviews the holders that are currently constrained impacts on small entities. status quo and two alternatives to would benefit from increased No additional recordkeeping and change the PRR for bled sablefish. operational flexibility under an reporting requirements are associated Alternative 1 would not revise the PRR increased block limit. This action may with this action. for bled sablefish, which would remain decrease the value of unblocked QS in NMFS is not aware of any other at 0.98. Alternative 2, the preferred relation to blocked QS, by relaxing the Federal rules that would duplicate, alternative, would change the PRR to 1.0 ownership constraint on blocked QS. overlap, or conflict with this action.
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The detailed analysis of attributable because all are considered small for the is the no action alternative and its impacts of each alternative is contained purposes of this analysis. adoption would have no associated in the RIR and IRFA for this action. No additional recordkeeping and adverse economic impacts on directly Few, if any, actual adverse impacts are reporting requirements are associated regulated small entities. The preferred associated with these actions, and no with this action. alternative would allow all category B additional alternatives could be NMFS is not aware of any other QS, in either Area 2C for halibut or the identified which have the potential to Federal rules that would duplicate, Southeast Outside District for sablefish further minimize existing or potential overlap, or conflict with this action. to be fished on any size vessel. It may adverse impacts on small entities, while Each of the alternatives contributes to have the potential to disadvantage large achieving the objectives of the proposed the objectives of this proposed action, vessel operations that can only harvest action. comports with the Magnuson-Stevens category B QS, as competition for access Act and other applicable law, and to these QS could be substantially Halibut QS Vessel Category minimizes the economic impacts on broadened. The relative scarcity of Amendments directly regulated small entities. NMFS category B QS in Southeast Alaska Halibut fishermen in western Alaska is not aware of any additional halibut and sablefish fisheries may have identified safety concerns alternatives to this action that would mean that large vessel operations may associated with fishing in those areas on meet the RFA criteria. experience difficulty in acquiring small vessels, which could be Area 2C QS Restriction Amendment additional QS under the preferred alleviated, in large part, by relaxing the In the original IFQ Program for alternative due to increased costs. current restrictions on vessel length halibut and sablefish, category B QS was However, there would be no differential associated with category D QS. permitted to be fished only on a vessel impacts on the basis of size of the The action could potentially directly 60 feet or greater LOA. In 1996, the regulated entity attributable to this regulate 243 category D halibut QS Council adopted a regulatory change preferred alternative, because all are holders in Areas 3B, 4A, 4B, and 4C. that allowed category B QS to be fished ‘‘small’’ on the basis of RFA criteria. Currently, NMFS does not have on vessels under 60 feet LOA. At the No additional recordkeeping and sufficient ownership and affiliation time, certain category B QS holdings in reporting requirements are associated information to determine precisely the the Southeast Outside District sablefish with this action. number of entities in the IFQ Program and Area 2C halibut fisheries were NMFS is not aware of any other that are ‘‘small,’’ based on the SBA identified as ineligible for ‘‘fish down,’’ guidelines, nor the number that would Federal rules that would duplicate, and IFQ derived from these QS must be overlap, or conflict with this action. be adversely impacted by the present fished on a vessel greater than 60 ft action. This analysis assumes that all (18.29 m) LOA. This was intended to According to NOAA Administrative directly regulated operations are small, ensure category B quota share would be Order (NAO) 216–6, including the for RFA purposes. available to vessels 60 ft (18.29 m) LOA criteria used to determine significance, This analysis summary reviews the or greater. However, some fishermen this rule would not have a significant status quo and three alternatives to the have recently identified this prohibition effect, individually or cumulatively, on existing requirements. Two alternatives as unnecessary, inefficient, and the human environment beyond those would allow category D QS to be fished burdensome. effects identified in the previous NEPA on vessels less than or equal to 60 ft This proposed action could analysis. An environmental impact (18.29 m) LOA, and one alternative potentially affect 72 holders of category statement (EIS; dated December 1992) allow category D QS to be fished on B halibut QS in Area 2C, and 87 persons was prepared for the final rule vessels of any size. who hold category B sablefish QS in the implementing the original halibut and Alternative 1 is a no action alternative Southeast Outside District. Indirectly, sablefish IFQ and CDQ programs (58 FR and would not have associated adverse the action may affect 22 owners of 59375; November 9, 1993). The scope of economic impacts on directly regulated vessels greater than 60 ft (18.29 m) LOA the EIS includes the potential small entities. who made landings in 2003 in the environmental impacts of this proposed Alternatives 2, 3, and 4 would allow halibut fisheries in Area 2C, 40 large rule because the EIS analyzed the category D QS to be fished on larger vessel owners who landed sablefish in original IFQ Program, which included vessels, which includes vessels equal to the Southeast Outside District in 2003, analysis of biological and or less than 60 feet LOA for Alternatives 825 persons who are category B, C, or socioeconomic impacts on the 2 and 4, and vessels of any size for D halibut QS holders in Area 2C, and environment, affected fishermen, and Alternative 3. The proposed alternatives 436 persons who are category B or C affected communities. Based on the could address safety concerns for small sablefish QS holders in the Southeast nature of the proposed rule and the vessel operators. Since the proposed Outside District. Currently, NMFS does previous environmental analysis, this alternatives are likely to increase the not have sufficient ownership and proposed rule is categorically excluded value of category D QS, there may be affiliation information to determine from the requirement to prepare an some corollary decrease in the value of precisely the number of ‘‘small environmental assessment or category C QS, and also category B QS entities,’’ as the term is defined for RFA environmental impact statement, in in the case of Alternative 3. However, purposes, in the IFQ Program nor the accordance with Section 5.05b of NAO category D QS constitutes such a small number that would be adversely 216–6. Copies of the EIS for the original share to the aggregate halibut TAC in impacted by the preferred alternative. halibut and sablefish IFQ and CDQ any of these areas, that such a change in For the purposes of this RFA, this programs and the categorical exclusion relative value would not be expected to analysis assumes that all operations are for this action are available from NMFS substantially influence the market for small. (see ADDRESSES). QS. Furthermore, there would be no This analysis summary reviews the List of Subjects in 50 CFR Part 679 differential impacts on the basis of size status quo and an alternative to allow of the directly regulated entities category B QS to be fished on a vessel Alaska, Fisheries, Recordkeeping and attributable to these proposed actions, of any length in any area. Alternative 1 reporting requirements.
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Dated: October 26, 2006. permits, or sablefish IFQ hired master Primary community health aide Samuel D. Rauch III permits. means a person who has completed the Deputy Assistant Administrator for * * * * * first of three levels of community health Regulatory Programs, National Marine 3. In § 679.2 add definitions in aide training offered by the Norton Fisheries Service. alphabetical order for ‘‘Advanced nurse Sound Health Corporation at the Nome For the reasons set out in the practitioner’’, ‘‘Licensed medical Hospital, the Kuskokwim Community preamble, 50 CFR part 679 is proposed doctor’’, and ‘‘Primary community College in Bethel, the Alaska Area to be amended as follows: health aide’’ to read as follows: Native Health Service in Anchorage, or another accredited training center. PART 679—FISHERIES OF THE § 679.2 Definitions. EXCLUSIVE ECONOMIC ZONE OFF * * * * * * * * * * ALASKA Advanced nurse practitioner means a 4. In § 679.4, paragraphs (a) registered nurse authorized to practice introductory text, (a)(1)(i), (d) 1. The authority citation for part 679 in any state who, because of specialized introductory text, (d)(2), (d)(3)(i), (d)(4), continues to read as follows: education and experience, is certified to (d)(5), (d)(6)(i) are revised to read as Authority: 16 U.S.C. 773 et seq.; 1540(f); perform acts of medical diagnosis and follows: 1801 et seq; 1851 note; 3631 et seq. the prescription and dispensing of 2. In § 679.1, paragraph (d)(1)(i)(B) is medical, therapeutic, or corrective § 679.4 Permits. revised to read as follows: measures under regulations adopted by the state Board of Nursing. (a) Requirements. Only persons who are U.S. citizens are authorized to § 679.1 Purpose and scope. * * * * * * * * * * Licensed medical doctor means a receive or hold permits under this (d) * * * person who is licensed, certified, and/ section, with the exception that an IFQ (1) * * * or registered in accordance with hired master permit issued to an (i) * * * applicable Federal, state, or local laws individual person designated by a QS or (B) Using fixed gear in waters of the and regulations, and is authorized to IFQ permit holder as a hired master State of Alaska adjacent to the BSAI and conduct the practice of medicine as employed to fish his/her IFQ need not the GOA, provided that aboard such defined by the state in which the person be held by a U.S. citizen. vessels are persons who currently hold resides. (1) * * * sablefish quota shares, sablefish IFQ * * * * *
Permit is in effect from issue date through the end If program permit or card type is: of: For more information, see...
(i) IFQ:
(A) Registered Buyer Until next renewal cycle Paragraph (d)(3) of this section (B) Halibut & sablefish permits Specified fishing year Paragraph (d)(1) of this section (C) Halibut & sablefish hired master Specified fishing year Paragraph (d)(2) of this section permits
* * * * * such fish are retained on board by a or cardholder at any time during the (d) IFQ permits, IFQ hired master hired master. Except as specified in fishing year for which it is issued until permits, and Registered Buyer permits. § 679.42(d), an individual that is issued the Registered Buyer permit expires, or The permits described in this section an IFQ hired master permit must remain is revoked, suspended, or modified are required in addition to the permit aboard the vessel used to harvest IFQ under 15 CFR part 904. and licensing requirements prescribed halibut or IFQ sablefish with that IFQ * * * * * in the annual management measures hired master permit during the IFQ (4) Issuance. The Regional published in the Federal Register fishing trip and at the landing site Administrator will renew IFQ permits pursuant to § 300.62 of this title and in during all IFQ landings. and IFQ hired master permits annually the permit requirements of this section. (iii) Each IFQ hired master permit or at other times as needed to * * * * * issued by the Regional Administrator accommodate transfers, revocations, (2) IFQ hired master permit. (i) An will display an IFQ permit number and appeals resolution, and other changes in IFQ hired master permit authorizes the the name of the individual authorized QS or IFQ holdings, and designation of individual identified on the IFQ hired by the IFQ permit holder to land IFQ masters under § 679.42. master permit to land IFQ halibut or IFQ halibut or IFQ sablefish for debit against (5) Transfer. The quota shares and sablefish for debit against the specified the IFQ permit holder’s IFQ. In IFQ issued under this section are not IFQ permit until the IFQ hired master addition, IFQ hired master permits will transferable, except as provided under permit expires, or is revoked, also display the ADF&G vessel § 679.41. IFQ hired master permits and suspended, or modified under 15 CFR identification number of the authorized Registered Buyer permits issued under part 904, or cancelled on request of the vessel. this paragraph (d) are not transferable. IFQ permit holder. (3) * * * (6) * * * (ii) An original IFQ hired master (i) A Registered Buyer permit (i) IFQ permit and IFQ hired master permit issued to eligible individuals in authorizes the person identified on the permit. (A) The IFQ permit holder must accordance with § 679.42(i) and (j) by permit to receive and make an IFQ present a copy of the IFQ permit for the Regional Administrator must be on landing by an IFQ permit or IFQ hired inspection on request of any authorized board the vessel that harvests IFQ master permit or to receive and make a officer or Registered Buyer receiving halibut or IFQ sablefish at all times that CDQ halibut landing by a CDQ permit IFQ species.
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(B) The IFQ hired master permit (H) ADF&G statistical area of harvest copy of all Landing Report receipts, and holder must present a copy of the IFQ reported by the IFQ permit holder or the Registered Buyer must retain a copy permit and the original IFQ hired master IFQ hired master permit holder; of all reports and receipts required by permit for inspection on request of any (I) If ADF&G statistical area is bisected this section. All retained records must authorized officer or Registered Buyer by a line dividing two IFQ regulatory be available for inspection by an receiving IFQ species. areas, the IFQ regulatory area of harvest authorized officer: * * * * * reported by the IFQ permit holder or * * * * * 5. In § 679.5, paragraphs (a)(1)(i)(B); IFQ hired master permit holder; 6. In § 679.7, paragraphs (f)(3)(i), (g)(2)(iv)(A); (l)(2)(i)(D) and (E); * * * * * (f)(3)(ii), (f)(4), (f)(6)(i) and (ii), and (l)(2)(iii)(C), (l)(2)(iii)(H), (I) and (M); (M) After the Registered Buyer enters (f)(11) introductory text are revised to (l)(2)(iv)(B)(2); (l)(2)(iv)(D); (l)(4)(i)(E)(1); the landing data in the Internet read as follows: submission form(s) and receipts are (l)(4)(ii)(D); and (l)(5)(ii) introductory § 679.7 Prohibitions. text are revised to read as follows: printed, the Registered Buyer, or his/her representative, and the IFQ permit * * * * * § 679.5 Recordkeeping and reporting holder, IFQ hired master permit holder, (f) * * * (R&R). (3) * * * or CDQ cardholder must sign the (i) Halibut. (A) Retain halibut caught (a) * * * receipts to acknowledge the accuracy of (1) * * * with fixed gear without a valid IFQ the IFQ landing report. permit, and if using a hired master, (i) * * * (iv) * * * (B) IFQ halibut and sablefish. The IFQ (B) * * * without an IFQ hired master permit in permit holder, IFQ hired master permit (2) The IFQ permit holder, IFQ hired the name of an individual aboard. (B) Retain halibut caught with fixed holder, or Registered Buyer must master permit holder, or CDQ gear without a valid CDQ permit and comply with the R&R requirements cardholder must initiate a Landing without CDQ card in the name of an provided at paragraphs (g), (k), and (l) Report by logging into the IFQ landing of this section. individual aboard. report system using his or her own (ii) Sablefish. Retain sablefish caught * * * * * password and must provide with fixed gear without a valid IFQ (g) * * * identification information requested by permit, and if using a hired master, (2) * * * the system. without an IFQ hired master permit in (iv) * * * * * * * * the name of an individual aboard, (A) A person holding a valid IFQ (D) Properly debited landing. A unless fishing on behalf of a CDQ group permit, IFQ hired master permit, and properly concluded printed Internet and authorized under § 679.32(c). Registered Buyer permit may conduct a submission receipt or a manual landing (4) Except as provided in § 679.40(d), dockside sale of IFQ halibut or IFQ report receipt which is sent by facsimile retain IFQ or CDQ halibut or IFQ or sablefish with a person who has not from OLE to the Registered Buyer, and CDQ sablefish on a vessel in excess of been issued a Registered Buyer permit which is then signed by both the the total amount of unharvested IFQ or after all IFQ halibut and IFQ sablefish Registered Buyer and IFQ permit holder, CDQ, applicable to the vessel category have been landed and reported in IFQ hired master permit holder, or CDQ and IFQ or CDQ regulatory area(s) in accordance with paragraph (l) of this cardholder constitutes confirmation that which the vessel is deploying fixed gear, section. OLE received the landing report and and that is currently held by all IFQ or * * * * * that the IFQ permit holder or CDQ CDQ permit holders aboard the vessel, (l) * * * cardholder’s account is properly unless the vessel has an observer aboard (2) * * * debited. A copy of each receipt must be under subpart E of this part and (i) * * * maintained by the Registered Buyer as maintains the applicable daily fishing (D) Remain at landing site. Once the described in paragraph (l) of this log prescribed in the annual landing has commenced, the IFQ permit section. management measures published in the holder, IFQ hired master permit holder, * * * * * Federal Register pursuant to § 300.62 of or CDQ cardholder and the harvesting (4) * * * this title and § 679.5. vessel may not leave the landing site (i) * * * (5) * * * until the IFQ halibut, IFQ sablefish or (E) * * * (6) * * * CDQ halibut account is properly debited (1) A vessel operator submitting an (i) IFQ permit or CDQ permit. Make (as defined in paragraph (l)(2)(iv)(D) of IFQ Departure Report to document IFQ an IFQ landing without an IFQ permit, this section). halibut or IFQ sablefish must have one IFQ hired master permit, or CDQ card, (E) No movement of IFQ halibut, CDQ or more IFQ permit holders or IFQ hired as appropriate, in the name of the halibut, or IFQ sablefish. The offloaded master permit holders on board with a individual making the landing. IFQ halibut, CDQ halibut, or IFQ combined IFQ balance equal to or (ii) Hired master, IFQ. Make an IFQ sablefish may not be moved from the greater than all IFQ halibut and IFQ landing without an IFQ hired master landing site until the IFQ Landing sablefish on board the vessel. permit listing the name of the hired Report is received by OLE, Juneau, AK, * * * * * master and the name of the vessel and the IFQ permit holder’s or CDQ (ii) * * * making the landing. cardholder’s account is properly debited (D) Halibut IFQ, halibut CDQ, * * * * * (as defined in paragraph (l)(2)(iv)(D) of sablefish IFQ, and CR crab permit (11) Discard halibut or sablefish this section). numbers of IFQ and CDQ permit holders caught with fixed gear from any catcher * * * * * on board; vessel when any IFQ permit holder (iii) * * * * * * * * aboard holds unused halibut or (C) Name and permit number of the (5) * * * sablefish IFQ for that vessel category IFQ permit holder, IFQ hired master (ii) Record retention. The IFQ permit and the IFQ regulatory area in which the permit holder, or CDQ cardholder; holder, IFQ hired master permit holder, vessel is operating, unless: * * * * * or CDQ cardholder must retain a legible * * * * *
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7. In § 679.23, paragraph (g)(2) is represent less than 5,000 lb (2.3 mt) of (i) General. A medical transfer will revised to read as follows: halibut IFQ, based on the 1996 catch not be approved unless the applicant limit for halibut in a specific IFQ demonstrates that: § 679.23 Seasons. regulatory area and the QS pool for that (A) He or she is unable to participate * * * * * IFQ regulatory area on January 31, 1996, in the IFQ fishery for which he or she (g) * * * may be consolidated into larger QS holds IFQ because of a medical (2) Catches of sablefish by fixed gear blocks provided that the consolidated condition that precludes participation; during other periods may be retained up blocks do not represent greater than or to the amounts provided for by the 5,000 lb (2.3 mt) of halibut IFQ based on (B) He or she is unable to participate directed fishing standards specified at the preceding criteria. A consolidated in the IFQ fishery for which he or she § 679.20 when made by an individual block cannot be divided and is holds IFQ because of a medical aboard the vessel who has a valid IFQ considered a single block for purposes condition involving an immediate permit and unused IFQ in the account of use and transferability. The family member that requires the IFQ on which the permit was issued. maximum number of QS units that may holder’s full time attendance. * * * * * be consolidated into a single block in (ii) Eligibility. To be eligible to receive 8. In § 679.40, paragraphs (a)(5)(ii)(A) each IFQ regulatory area is as follows: a medical transfer, an individual halibut through (D) are revised to read as (i) Area 2C: 33,320 QS. or sablefish QS holder must: follows: (ii) Area 3A: 46,520 QS. (A) Possess one or more catcher vessel * * * * * IFQ permits; and § 679.40 Sablefish and halibut QS. 10. In § 679.42, paragraph (a)(3) is (B) Not qualify for a hired master * * * * * removed; paragraphs (a)(2)(iv), (g)(3), exception under paragraph (i)(1) of this (a) * * * and (l) are added; and paragraphs (a)(1) section. (5) * * * introductory text, (c)(1)(i), (d), (g)(1) (iii) Application. An individual may (ii) * * * introductory text, (i) and (j) are revised apply for a medical transfer by (A) Category A QS and associated to read as follows: submitting a medical transfer IFQ, which authorizes an IFQ permit application to the Alaska Region, holder to harvest and process IFQ § 679.42 Limitations on use of QS and IFQ. NMFS. A QS or IFQ holder who has species on a vessel of any length; (a) * * * received an approved medical transfer (B) Category B QS and associated IFQ, (1) The QS or IFQ specified for one from RAM may transfer his or her which authorizes an IFQ permit holder IFQ regulatory area must not be used in annual IFQ permit to an individual to harvest IFQ species on a vessel of any a different IFQ regulatory area, except eligible to receive QS or IFQ. A medical length; all or part of the QS and IFQ specified transfer application is available at (C) Category C QS and associated IFQ, for regulatory area 4C may be harvested http://www.fakr.noaa.gov or by calling which authorizes an IFQ permit holder in either Area 4C or Area 4D. 1–800–304–4846. Completed to harvest IFQ species on a vessel less * * * * * applications must be mailed to: than or equal to 60 ft (18.3 m) LOA: (2) * * * Restricted Access Management Program, (D) Category D QS and associated IFQ, (iv) In Areas 3B and 4C, category D NMFS, Alaska Region, P.O. Box 21668, which authorizes an IFQ permit holder QS and associated IFQ authorizes an Juneau, AK 99802–1668. A complete to harvest IFQ halibut on a vessel less IFQ permit holder to harvest IFQ halibut application must include: than or equal to 35 ft (10.7 m) LOA, on a vessel less than or equal to 60 ft (A) The applicant’s (transferor’s) except as provided in § 679.42(a); (18.3 m) LOA. identity including his or her full name, * * * * * * * * * * NMFS person ID, date of birth, Social 9. In § 679.41, paragraphs (a)(2), (e)(3) (c) * * * Security Number or Tax ID, permanent introductory text, (e)(3)(i), and (e)(3)(ii) (1) * * * business mailing address, business are revised to read as follows: (i) Have a valid IFQ permit. telephone and fax numbers, and e-mail * * * * * address (if any). A temporary mailing § 679.41 Transfer of quota shares and IFQ. (d) Medical transfers and emergency address may be provided, if appropriate; (a) * * * waivers. The original recipient of an (B) The recipient’s (transferee’s) (2) Transactions requiring IFQ permits individual IFQ card must be aboard the identity including his or her full name, to be issued in the name of a hired vessel during fishing operations and NMFS person ID, date of birth, Social master employed by an individual or a must sign the IFQ landing report except Security Number or Tax ID, permanent corporation are not transfers of QS or as provided in § 679.41 and under the business mailing address, business IFQ. following circumstances: telephone and fax numbers, and e-mail * * * * * (1) Emergency waiver. In the event of address (if any). A temporary mailing (e) * * * extreme personal emergency involving address may be provided, if appropriate; (3) Halibut. QS blocks for the same the IFQ user during a fishing trip, the (C) The identification characteristics IFQ regulatory area and vessel category requirements of paragraph (c) of this of the IFQ including whether the that represent less than 3,000 lb (1.4 mt) section may be waived. The waiving of transfer is for halibut or sablefish IFQ, of halibut IFQ, based on the 1996 catch these requirements under this provision IFQ regulatory area, number of units, limit for halibut in a specific IFQ shall apply to IFQ halibut or IFQ range of serial numbers for IFQ to be regulatory area and the QS pool for that sablefish retained on the fishing trip transferred, actual number of IFQ IFQ regulatory area on January 31, 1996, during which the emergency occurred. pounds, transferor (seller) IFQ permit may be consolidated into larger QS (2) Medical transfers. In the event of number, and fishing year; blocks provided that the consolidated a medical condition affecting an IFQ (D) The price per pound (including blocks do not represent greater than holder or his or her immediate family leases) and total amount paid for the 3,000 lb (1.4 mt) of halibut IFQ based on member that prevents that IFQ holder IFQ in the requested transaction, the preceding criteria. In Areas 2C and from being able to participate in the including all fees; 3A, QS blocks for the same IFQ halibut or sablefish IFQ fisheries, a (E) The primary source of financing regulatory area and vessel category that medical transfer may be approved. for the transfer, how the IFQ was
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located, and the transferee’s (buyer’s) submit the specified information or a percentage of ownership interest than relationship to the transferor (seller); revised application. The IAD will that held on April 17, 1997, and (F) A written declaration from a indicate the deficiencies in the provided that this individual has not licensed medical doctor, advanced application, including any deficiencies acquired additional QS through transfer nurse practitioner, or primary with the information or the revised after September 23, 1997. community health aide as those persons application. An applicant who receives (3) Paragraph (i)(1) of this section are defined in § 679.2. The declaration an IAD may appeal under the appeals does not apply to individuals who must include: procedures set out at § 679.43. received an initial allocation of QS (1) The treating physician’s identity * * * * * assigned to vessel category B, C, or D for including his or her full name, business (g) * * * halibut in IFQ regulatory Area 2C or for telephone, permanent business mailing (1) Number of blocks per species. No sablefish QS in the IFQ regulatory area ° address (number and street, city and person, individually or collectively, east of 140 W. long., and this state, zip code), and the type of may hold more than two blocks of exemption is not transferable. physician; sablefish or three blocks of halibut in (4) The exemption provided in (2) A concise description of the any IFQ regulatory area, except: paragraph (i)(1) of this section may be medical condition affecting the exercised by an individual on a vessel * * * * * applicant or applicant’s family member owned by a corporation, partnership, or (3) Transfer of QS blocks. A person including verification that the applicant other entity in which the individual is who holds two blocks of halibut QS and is unable to participate in the IFQ a shareholder, partner, or member, unblocked halibut QS as of [EFFECTIVE fishery for which he or she holds IFQ provided that the individual maintains DATE OF FINAL RULE] may transfer permits during the IFQ season because a minimum 20–percent interest in the unblocked QS until such time as that of the medical condition and, for an vessel owned by the corporation, person sells a halibut QS block. affected family member, a description of partnership, or other entity. For the care required; and * * * * * purposes of this paragraph, interest in a (3) The dated signature of the licensed (i) Use of IFQ resulting from QS vessel is determined as the percentage medical doctor, advanced nurse assigned to vessel category B, C, or D by ownership of a corporation, partnership, practitioner, or primary community individuals. In addition to the or other entity by that individual health aide who conducted the medical requirements of paragraph (c) of this multiplied by the percentage of examination; section, IFQ permits issued for IFQ ownership of the vessel by the (G) The signatures and printed names resulting from QS assigned to vessel corporation, partnership, or other entity. of the transferor and transferee, and category B, C, or D must be used only (5) IFQ derived from QS held by a date; and by the individual who holds the QS CQE must be used only by the (H) The signature, seal, and from which the associated IFQ is individual whose IFQ permit account commission expiration of a notary derived, except as provided in contains the resulting IFQ. public. paragraph (i)(1) of this section. (6) In the event of the actual total loss (iv) Restrictions. (A) A medical (1) An individual who received an or constructive total loss of vessel transfer shall be valid only during the initial allocation of QS assigned to owned by an individual who qualifies calendar year for which the permit is category B, C, or D does not have to be for the exemption in paragraph (i)(1) of issued. aboard the vessel on which his or her this section, the owner of such vessel (B) NMFS will not approve IFQ is being fished or to sign IFQ may remain exempt under paragraph subsequent applications for medical landing reports if that individual: (i)(1) of this section until such time that transfers based on the same medical (i) For a documented vessel, the owner purchases a replacement condition unless a licensed medical continuously owned a minimum 20– vessel, provided that such loss was doctor, advanced nurse practitioner, or percent interest in the vessel for the caused by an act of God, an act of war, primary community health aide attests previous 12 months as supported by the a collision, an act or omission of a party to a reasonable likelihood of recovery. U.S. Abstract of Title issued by the U.S. other than the owner or agent of the (C) NMFS will not approve a medical Coast Guard and any other vessel, or any other event not caused by transfer if the applicant has received a documentation indicating percentage the willful misconduct of the owner or medical transfer in any 2 of the previous ownership; agent. 5 years for the same medical condition. (ii) For an undocumented vessel, (j) Use of IFQ resulting from QS (v) Medical transfer evaluations and continuously owned a minimum 20– assigned to vessel category B, C, or D by appeals—(A) Initial evaluation. The percent interest in the vessel for the corporations and partnerships. (1) Regional Administrator will evaluate an previous 12 months as supported by a Except as provided in paragraph (j)(7) of application for a medical transfer State of Alaska vessel registration and this section, a corporation or submitted in accordance with any other documentation indicating partnership that received an initial paragraphs (d)(2)(iii) and (d)(2)(iv) of percentage ownership; and allocation of QS assigned to category B, this section. An applicant who fails to (iii) Is represented on the vessel by a C, or D may fish the IFQ resulting from submit the information specified in the hired master employed by that that QS and any additional QS acquired application for a medical transfer will individual and permitted in accordance within the limitations of this section be provided a reasonable opportunity to with § 679.4(d)(2). provided that the corporation or submit the specified information or (2) Paragraph (i)(1) of this section partnership: submit a revised application. does not apply to any individual who (i) For a documented vessel, (B) Initial administrative received an initial allocation of QS continuously owned a minimum 20– determinations (IAD). The Regional assigned to category B, C, or D and who, percent interest in the vessel for the Administrator will prepare and send an prior to April 17, 1997, employed a previous 12 months as supported by the IAD to the applicant if the Regional master to fish any of the IFQ issued to U.S. Abstract of Title issued by the U.S. Administrator determines that the that individual, provided the individual Coast Guard and any other application provided by the applicant is continues to own the vessel from which documentation indicating percentage deficient or if the applicant fails to the IFQ is being fished at no lesser ownership;
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(ii) For an undocumented vessel, (5) The Regional Administrator must all current shareholders or partners and continuously owned a minimum 20– be notified of a change in the affirming the entity’s continuing percent interest in the vessel for the corporation, partnership, or other entity existence as a corporation or previous 12 months as supported by a as defined in this paragraph (j) within partnership. State of Alaska vessel registration and 15 days of the effective date of the (9) The exemption provided in this any other documentation indicating change. The effective date of change, for paragraph (j) may be exercised by a percentage ownership; and purposes of this paragraph (j), is the corporation, partnership, or other entity (iii) Is represented on the vessel by a date on which the new shareholder(s) or on a vessel owned by a person who is hired master permitted in accordance partner(s) may realize any corporate a shareholder in the corporation, with § 679.4(d)(2) and employed by the liabilities or benefits of the corporation partnership, or other entity, provided corporation or partnership that received or partnership or, for estates, the date of that the corporation, partnership, or the initial allocation of QS. the determination of a legal heir to the other entity maintains a minimum of (2) The provision of paragraph (j)(1) of estate, or the date of the order for 20–percent interest in the vessel. For this section is not transferable and does distribution of the estate. purposes of this paragraph (j), interest in not apply to QS assigned to vessel (6) QS assigned to vessel category B, a vessel is determined as the percentage category B, C, or D for halibut in IFQ C, or D and IFQ resulting from that QS of ownership in the corporation, regulatory Area 2C or for sablefish in the held in the name of a corporation, partnership, or other entity by that IFQ regulatory area east of 140° W. long. partnership, or other entity that person who is a shareholder in the that is transferred to a corporation or changes, as defined in this paragraph (j), corporation, partnership, or other entity, partnership. Such transfers of additional must be transferred to an individual, as multiplied by the percentage of QS within these areas must be to an prescribed in § 679.41, before it may be ownership in the vessel by that person individual pursuant to § 679.41(c) and used at any time after the effective date who is a shareholder in the corporation, be used pursuant to paragraphs (c) and of the change. partnership, or other entity. (7) A corporation or a partnership that (i) of this section. received an initial allocation of QS * * * * * (3) A corporation or partnership, assigned to category B, C, or D and that, (l) Sablefish Vessel Clearance except for a publicly held corporation, prior to April 17, 1997, employed a Requirements—(1) General. Any vessel that receives an initial allocation of QS master to fish any of the IFQ issued to operator who fishes for sablefish in the assigned to vessel category B, C, or D that corporation or partnership may Bering Sea or Aleutian Islands IFQ loses the exemption provided under this continue to employ a master to fish its regulatory areas must possess a paragraph (j) on the effective date of a IFQ on a vessel owned by the transmitting VMS transmitter while change in the corporation or partnership corporation or partnership provided that fishing for sablefish. from that which existed at the time of the corporation or partnership continues (2) VMS Requirements. (i) The initial allocation. to own the vessel at no lesser percentage operator of the vessel must comply with (4) For purposes of this paragraph (j), of ownership interest than that held on § 679.28(f)(3), (f)(4), and (f)(5); and ‘‘a change’’ means: April 17, 1997, and provided that (ii) The operator of the vessel must (i) For corporations and partnerships, corporation or partnership did not contact NMFS at 800–304–4846 (option the addition of any new shareholder(s) acquire additional QS through transfer 1) between 0600 and 0000 A.l.t. and or partner(s), except that a court after September 23, 1997. receive a VMS confirmation number at appointed trustee to act on behalf of a (8) A corporation, partnership, or least 72 hours prior to fishing for shareholder or partner who becomes other entity, except for a publicly held sablefish in the Bering Sea or Aleutian incapacitated is not a change in the corporation, that receives an initial Islands IFQ regulatory areas. corporation or partnership; or allocation of QS assigned to category B, 11. Revise Table 3 to Part 679 to read (ii) For estates, the final or summary C, or D must provide annual updates to as follows: distribution of the estate. the Regional Administrator identifying BILLING CODE 3510–22–P
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[FR Doc. 06–9009 Filed 10–31–06; 8:45 am]
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Notices Federal Register Vol. 71, No. 211
Wednesday, November 1, 2006
This section of the FEDERAL REGISTER Type of Request: Extension with no and Budget approval. Signed at contains documents other than rules or revision. Washington, DC, October 20, 2006. proposed rules that are applicable to the public. Notices of hearings and investigations, Abstract: The collection of Teresa C. Lasseter, committee meetings, agency decisions and information is necessary for people to Administrator, Farm Service Agency. rulings, delegations of authority, filing of register online to make payment and [FR Doc. E6–18370 Filed 10–31–06; 8:45 am] reservations to attend conferences and petitions and applications and agency BILLING CODE 3410–05–P statements of organization and functions are events. They can register on FSA’s examples of documents appearing in this Online Registration site on the Internet. section. Respondents who do not have access to DEPARTMENT OF AGRICULTURE the Internet can register by mail or fax. The information is collected by the FSA Forest Service DEPARTMENT OF AGRICULTURE employees who sponsor the conferences and events. The FSA is collecting Idaho Cobalt Project Plan of Farm Service Agency common elements from interested Operations, Salmon-Challis National Forest, Lemhi County, ID Information Collection; Online respondents such as name, organization, Registration for FSA-Sponsored address, country, phone number, State, AGENCY: Forest Service, USDA. city or town, payment options (cash, Events and Conferences ACTION: Revised Notice of Intent to credit card, check) and special Prepare Environmental Impact AGENCY: Farm Service Agency, USDA. accommodations requests. The Statement. ACTION: Notice; request for comment. respondents are mainly individuals who are interested in attending the FSA- SUMMARY: The Forest Service, as the SUMMARY: In accordance with the sponsored conferences or events. The lead Federal agency, previously Paperwork Reduction Act of 1995, the information is used to collect payment published in the Federal Register (66 Farm Service Agency is seeking from the respondents and make hotel FR 46992–46994, September 10, 2001) a comments from all interested reservations and other special Notice of Intent to prepare an individuals and organizations on an arrangements as necessary. Environmental Impact Statement (EIS) extension without revision of the Estimate of Annual Burden: 15 to disclose the environmental effects of information collection associated with minutes. the Idaho Cobalt Project. The Idaho online registration for FSA-sponsored Cobalt Project is a proposed plan of Type of Respondents: Individuals. events and conferences. The operations to develop an underground information collection is needed for Estimated Annual Number of cobalt-copper-gold mine on the Salmon/ FSA to obtain information from the Respondents: 900. Cobalt Ranger District of the Salmon- respondents who register on the Internet Estimated Annual Number of Challis National Forest in Lemhi to make payment and reservations to Responses per Respondent: 1. County, Idaho. The Forest Service attend any FSA-sponsored conferences Estimated Total Annual Burden on Handbook 1909.15, Chapter 21.2, and events. Respondents: 225. requires this revised notice in the DATES: Comments must be received in Federal Register to inform the public of Comment is invited on: (1) Whether a major change to the applicant’s plan writing on or before January 2, 2007 to this collection of information is be assured of consideration. Comments and provide revised dates of when the necessary for the stated purposes and draft and final EIS will be completed. received after that date will be the proper performance of the functions considered to the extent practicable. The major plan change is described in of the agency, including whether the the following paragraph. The revised ADDRESSES: Comments concerning this information will have practical utility; notice should be addressed to Farm dates of when the draft and final EIS (2) the accuracy of the agency’s estimate will be available can be found in the Service Agency, USDA, Office of of the burden of the collection of External Affairs, Jeff Kerby, 1400 DATES section of this notice. information, including the validity of The project proponent, Formation Independence Avenue, SW., the methodology and assumptions used; Capital Corporation U.S. (Formation), Washington, DC 20250. Comments also (3) ways to enhance the quality, utility, submitted its proposed plan of may be submitted via facsimile to (202) and clarity of the information to be operation (Plan) to the Forest Service in 720–2979 or by e-mail to: collected; and (4) ways to minimize the January 2001. That Plan described the [email protected]. burden of the collection of information major components of the project, FOR FURTHER INFORMATION CONTACT: Jeff on respondents, including the use of including production adits and Kerby, Office of External Affairs, (202) automated, electronic, mechanical, or declines, waste rock disposal areas, 720–1593. other technological collection processing plant, process water and SUPPLEMENTARY INFORMATION: techniques or other forms of information tailings disposal methods, haul roads, technology. and ancillary support facilities on Description of Information Collection All comments received in response to National Forest System Lands. Since Title: Online Registration for FSA- this notice, including names and 2001, Formation has provided the Forest sponsored Events and Conferences. addresses when provided, will be a Service with a number of clarifications OMB Number: 0560–0226. matter of public record. Comments will and minor revisions to their Plan, Expiration Date of Approval: 04/30/ be summarized and included in the which, for the most part, did not alter 07. submission for Office of Management the basic project description contained
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in the initial Federal Register notice. SUPPLEMENTARY INFORMATION: and mine water would be treated and However, one proposed revision to the Project Description: Formation Capital discharged in accordance with an Plan’s handling of mine and process Corporation U.S. (Formation) submitted NPDES permit. Treatment would consist water constituted a major change, which a Plan of Operations for the proposed of pH adjustment, precipitation and necessitated publishing this revised Idaho Cobalt Project to the Salmon- filtration for metals removal followed by notice. Instead of land-applying the Challis National Forest in January 2001. reverse osmosis membrane separation as water as originally proposed, Formation The Plan, which has subsequently been a polishing step and to remove nitrate, plans to install a water treatment system modified by Formation on a number of sulfate and other constituents. Treated and discharge the mine/process water occasions, most recently in a June 2006 water is projected to meet effluent limits into Big Deer Creek under a National revision, is summarized as follows: at the end of the discharge pipe. The Pollutant Discharge Elimination System The proposed Idaho Cobalt Project project as proposed by Formation would (NPDES) permit. This change would would consist of developing an 800-ton disturb 149 acres of National Forest reduce the surface area affected by per day mine and mill complex. The Land. mining operations from 251 acres to 149 project would involve mining cobalt- Power for the project would be acres. copper-gold reserves with an annual secured from an existing power line Formation submitted an NPDES production rate of 280,000 tons of ore at delivering power to the nearby permit application to the U.S. full production. Current reserves and Blackbird Mine. Emergency power Environmental Protection Agency (EPA) resources would allow for a ten-year would be supplied with diesel on May 25, 2006 to discharge treated mine life. The ore would be mined from generating equipment located at the water into Big Deer Creek. The permit two deposits, the Ram and the Sunshine main portals and at the mill. is a new source subject to the and conveyed to a mill situated on the It is anticipated that most of the requirements of 40 CFR Part 440. As nearby Big Flat plateau. Underground project employees would live in the described in 40 CFR Part 122.29 and mining methods are proposed, and a Salmon area. Employees would be EPA’s NEPA implementing regulations flotation mill would be used to process transported to the project site by buses in 40 CFR Part 6, a new source is subject ore from the mine. At full production, or vans assigned to personnel. The to compliance with NEPA prior to the mill would produce approximately proposed transportation route for the taking a final action on the NPDES 32 tons of concentrate and 768 tons of employees is via the Williams Creek permit. tailings per day. The concentrate would Summit, along the Williams Creek road, EPA entered into a Memorandum of be shipped to an off-site the Deep Creek road, the Panther Creek Understanding (MOU) with the Forest hydrometallurgical facility for metal road and the Blackbird Creek road. The Service on August 8, 2006 as a recovery. transportation route for mine supplies cooperating agency in the EIS process. Ram and Sunshine ore would be and the concentrates would also be via The MOU describes the roles, hauled to the mill with trucks, where Williams Creek Summit. The West the ore would be stockpiled. The responsibilities, and NEPA coordination Panther and South Panther Roadless approximate haul distance to the amongst the two agencies. Areas lie to the north, west and east of Given the public scoping that has proposed site of the mill from the Ram the ICP. Proposed activities in the portal is 2.8 miles and 1.5 miles from already been conducted for this project, company and agency alternatives would the Sunshine portal. In the latter years the extensive list of significant issues utilize upgraded existing and to a lesser of the mine life an overhead tram from generated as a result of that scoping, and degree new roads within the designated the Ram portal may be used to transport the impending completion of the Draft roadless area. Up to eight acres of ore to the mill. The tram would consist EIS, the Forest Service will not initiate disturbance within the designated of suspended car traveling on track additional public scoping for this roadless area would occur under the cables, driven by a haul cable and action alternatives. notice. Public comments will be suspended on towers. The tramcar There would be three main phases in accepted and considered following would be loaded from a hopper at the the life of the Idaho Cobalt Project: the publication of the Draft EIS. Ram portal, and the car would discharge construction phase, the production DATES: The Draft EIS is expected to be into a hopper at the mill crusher. phase, and the reclamation phase. There available for a 45-day public review and The proposed tailings disposal facility would also be concurrent reclamation in comment period the first quarter of and the water management reservoir are the construction and production phases 2007. EPA will inform the public of the also located on the Big Flat, east of the as existing disturbed areas or new start of the review and comment period mill. Disposal of tailings in this area via disturbance is reclaimed post-use. The by publishing a Notice of Availability of a dry stacking method was proposed by construction phase would include the Draft EIS in the Federal Register. Formation to take advantage of upgrading 23.2 miles of existing roads, Completion of the Final EIS is relatively flat topography, avoidance of and construction of 2.7 miles of new anticipated by July 31, 2007. wetlands, suitable foundation soils, roads, construction of the portals and FOR FURTHER INFORMATION CONTACT: Ray elimination of the need for a tailings waste rock dumps, the mill site, power Henderson, Project Coordinator, dam, and distance from active drainages line and substation and the tailings Salmon-Challis National Forest, 1206 S. and streams. Approximately 60 percent disposal site. Soil stockpile areas, Challis Street, Salmon, Idaho 83467, of the tailings produced would be stormwater diversion ditches and Phone (208) 756–5100. Questions on the required underground as backfill. The borrow areas would also be included in NPDES permit should be directed to backfill tailings would be dewatered to the surface disturbance. Rob Rau, EPA Region 10, 1200 6th Ave., produce a paste and have cement added The production phase would bring Seattle, Washington 98101, Phone (206) for strength. The paste would be the mill on line at 400-tons per day 553–6285. pumped from the mill site to the Ram increasing to 800-tons per day as the If you wish to be placed on the project in a pipeline. underground Ram mine expands. Each mailing list or receive additional Mine and mill process waters would of the project components is integral to information, contact the Salmon-Challis be managed and recycled in the process the whole operation and therefore there National Forest Project Coordinator circuit using a lined water management would be limited opportunities for identified above. reservoir as storage. Excess precipitation concurrent reclamation. However, there
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would be concurrent reclamation in direction. The proposal would occur What is the existing quality of some areas when active use stops. The within Management Area 5B. groundwater in the project area and how reclamation phase would include final Management emphasis in this area is on would the project affect existing shaping of waste rock dumps, sealing producing long-term timber outputs groundwater quality? mine portals, mill demolition, power through a moderate level of investment 4. Water Use, Management, Treatment line and substation dismantling, tailings in regeneration and thinning. It and Disposal—How would surface disposal area shaping and revegetation, recognizes the potential for high-value water and groundwater quality water management reservoir locatable mineral occurrence and monitoring be conducted to detect and reclamation, and road reclamation. probable development. The Forest Plan allow for the correction of any water Cobalt is a strategic and industrial directs that exploration, location, quality problems resulting from the metal with a diverse range of uses. The leasing and development of energy and proposed mining activities? What water largest single use is in alloys for air and non-energy minerals resources be management and treatment systems land-based gas turbine engines. The coordinated with other resources. would be in place to assure no adverse fastest growing usage is in the battery Under the United States Mining Laws impacts to water quality or quantity? industry for cell phones, pagers, of May 10, 1872, as amended (30 U.S.C. 5. Sediment Delivery (Storm Water portable computers and gasoline-electric 22), United States citizens and Management)—What are the potential hybrid power automobiles. Cobalt is corporations have the right to search for effects on water quality from accelerated used in computer hard disk drives, and develop minerals upon public erosion and sedimentation, in semiconductors, magnetic data storage lands, including National Forest consideration of surface disturbance and solar collectors. It is also used as a Systems lands, open to mineral entry. associated with the proposed mining component in the effort to reduce air Forest Service regulations (36 CFR 228, operations and the existing effects of the pollution, as it is a catalyst for removing Subpart A) require that the agency work Clear Creek wildfire of the summer of sulfur from oil to provide for clean with mineral operators to minimize or 2000? burning fuels and has important eliminate adverse environmental 6. Roads and Access—Opportunities medical uses as well. impacts from mineral activities on exist to improve the transportation Proposed Action and Regulatory National Forest System lands. system on the project site and the access Requirements: The Forest Service Public Participation: The Forest roads including reclamation of existing decision to be made in response to Service held an initial public meeting to roads not meeting Forest standards. Formation’s Plan is described by provide information on the Idaho Cobalt 7. Transportation of Product, regulation at 36 CFR 228.5 and includes: Project on July 20, 2001, at the City Chemicals, and Fuel—What is the (a) Approve the project as proposed, (b) Center in Salmon, Idaho. The Forest potential for adverse impacts to water Notify the operator of changes or issued a Notice of Intent (NOI) to quality from accidental spills of additions to the plan of operations prepare an EIS for the proposed mining hazardous materials along the deemed necessary to meet the purpose project in the Federal Register on transportation route? of the regulations. September 10, 2001. The NOI invited 8. Socio-Economics—What are the These regulations also direct the comments on FCC’s proposed Plan of potential impacts to local communities, Forest Service to comply with the Operations and the Forest’s tax base and infrastructure from the requirements of the National environmental analysis process for the proposed project? Environmental Policy Act (NEPA) in proposed Project. The Forest held 9. Vegetation/Reclamation—What connection with each Plan of Operation. public scoping meetings on October 10, effects would the Idaho Cobalt Project In this regard, the Salmon-Challis Forest 2001, in Challis, Idaho and October 11, have on vegetation, particularly the Supervisor has determined that an EIS 2001 in Salmon, Idaho. natural recovery of the area following is required to support a decision on the The scoping process and subsequent the 2000 Clear Creek fire? Idaho Cobalt Project. The EIS will environmental analysis, to date, have 10. Wetlands and Other Waters of the analyze the direct, indirect, and identified the following significant U.S.—What are the impacts to wetlands cumulative environmental effects of the issues: from the Idaho Cobalt Project? proposed Plan of Operation and other 1. Blackbird Mine CERCLA 11. Fish Populations and Habitat of reasonable alternatives including Remediation & Restoration—What is the Concern—Would special status fish mitigation, monitoring and reclamation relationship between the proposed species and their habitat (threatened, measures designed to minimize adverse Idaho Cobalt Project and the current endangered, sensitive) or species whose effects. program to remediate the environmental populations or habitat are present be In order to implement the project, the damage at the Blackbird Mine and to re- adversely affected by the proposed proponent, Formation, must obtain establish an anadromous fishery in mining activities? approval or conduct consultation with Panther Creek? 12. Air Quality/Visual Resource/ several other federal, state, and local 2. Surface Water Quality—What is the Wilderness Resources—Would there be regulatory agencies. These agencies potential for adverse impacts to water impacts to air quality, visual resources include: U.S. Environmental Protection quality downstream of project facilities or the nearby wilderness? Agency, U.S. Fish and Wildlife Service, from the proposed mining activities, 13. Wildlife Populations and Habitat National Marine Fisheries Service, including development of acid mine of Concern— Army Corps of Engineers, Idaho drainage and mobilization of heavy 14. Cultural Resources and Tribal Department of Environmental Quality, metals from geologic materials exposed Trust Responsibilities—Are there Idaho Department of Water Resources, by the proposed mining activities, and cultural, historical or heritage resources Idaho State Historic Preservation Officer how would water quality be maintained in project area and would they be and Lemhi County, Idaho. and beneficial uses protected? affected by the proposed Plan. The Salmon Forest Plan provides 3. Groundwater Quality—What is the 15. Planning and Land Use—How guidance for management activities relationship of the aquifer systems would the proposed mining activities within the potentially affected area between the proposed project and affect other Forest activities and would through its goals, objectives, standards surrounding areas, particularly the any changes be required to the Forest and guidelines, and management area Blackbird Mine and receiving streams? Plan.
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The comment period on the draft alternatives formulated and discussed in DEPARTMENT OF COMMERCE environmental impact statement will be the statement. Reviewers may wish to 45-days from the date the refer to the Council on Environmental International Trade Administration Environmental Protection Agency Quality Regulations for implementing Antidumping or Countervailing Duty publishes the notice of availability in the procedural provisions of the Order, Finding, or Suspended the Federal Register. National Environmental Policy Act at 40 Investigation; Opportunity To Request The Forest Service believes, at this CFR 1503.3 in addressing these points. early stage, it is important to give Administrative Review reviewers notice of several court rulings Alternatives: The Forest Service will AGENCY: Import Administration, related to public participation in the consider a range of alternatives in the International Trade Administration, environmental review process. First, EIS including a no action alternative Department of Commerce. reviewers of draft environmental impact and modifications to the proponent’s statements must structure their Plan that would minimize risk of ACTION: Notice of Opportunity to participation in the environmental impacts to the environment, improve Request Administrative Review of review of the proposal so that it is public safety and mitigate potential Antidumping or Countervailing Duty meaningful and alerts an agency to the effects to water quality, wetlands, Order, Finding, or Suspended reviewer’s position and contentions. wildlife and other resources. Analysis of Investigation. Vermont Yankee Nuclear Power Corp. v. alternatives will evaluate alternative FOR FURTHER INFORMATION CONTACT: NRDC, 435 U.S. 519, 553 (1978). Also, facility locations, facility design Sheila E. Forbes, Office of AD/CVD environmental objections that could be components, operational procedures Operations, Office 4, Import raised at the draft environmental impact and technologies. For example statement stage but that are not raised Administration, International Trade alternatives to the location for the Administration, U.S. Department of until after completion of the final tailings disposal facility, to operational environmental impact statement may be Commerce, 14th Street and Constitution and post closure water management and waived or dismissed by the courts. City Avenue, NW., Washington, DC 20230, to water treatment technologies will be of Angoon v. Hodel, 803 F.2d 1016, telephone: (202) 482–4697. evaluated. Mitigation measures that 1022 (9th Cir. 1986) and Wisconsin Background Heritages, Inc. v. Harris, 490 F. Supp. would improve access road safety, 1334, 1338 (E.D. Wis. 1980). Because of increase monitoring requirements and Each year during the anniversary these court rulings, it is very important modify reclamation methods will also month of the publication of an that those interested in this proposed be considered. The range of alternatives antidumping or countervailing duty action participate by the close of would result in surface disturbance of order, finding, or suspension of comment period so that substantive up to approximately 328 acres. investigation, an interested party, as comments and objections are made Responsible Official: I am the defined in section 771(9) of the Tariff Act of 1930, as amended, may request, available to the Forest Service at a time responsible official for this in accordance with section 351.213 when it can meaningfully consider them Environmental Impact Statement. My (2002) of the Department of Commerce and respond to them in the final address is Salmon-Challis National (the Department) Regulations, that the environmental impact statement. Forest, 1206 S. Challis Street, Salmon, To assist the Forest Service in Department conduct an administrative Idaho 83467. identifying and considering issues and review of that antidumping or concerns on the proposed action, Dated: October 24, 2006. countervailing duty order, finding, or comments on the draft environmental William A. Wood, suspended investigation. impact statement should be as specific Forest Supervisor, Salmon-Challis National. Opportunity to Request a Review: Not later than the last day of November as possible. It is also helpful if [FR Doc. E6–18362 Filed 10–31–06; 8:45 am] comments refer to specific pages or 2006,1 interested parties may request chapters of the draft statement. BILLING CODE 3410–11–P administrative review of the following Comments may also address the orders, findings, or suspended adequacy of the draft environmental investigations, with anniversary dates in impact statement or the merits of the November for the following periods:
Periods
Antidumping Duty Proceedings
Argentina: Barbed Wire & Barbless Fencing Wire, A–357–405 ...... 11/1/05–10/31/06 Brazil: Circular Welded Non-Alloy Steel Pipe, A–351–809 ...... 11/1/05–10/31/06 Hungary: Sulfanilic Acid, A–437–804 ...... 11/1/05–10/31/06 Kazakhstan: Certain Hot-Rolled Carbon Steel Flat Products, A–834–806 ...... 11/1/05–10/31/06 Mexico: Circular Welded Non-Alloy Steel Pipe, A–201–805 ...... 11/1/05–10/31/06 Netherlands: Certain Hot-Rolled Carbon Steel Flat Products, A–421–807 ...... 11/1/05–10/31/06 Portugal: Sulfanilic Acid, A–471–806 ...... 11/1/05–10/31/06 Republic of Korea: Circular Welded Non-Alloy Steel Pipe, A–580–809 ...... 11/1/05–10/31/06 Romania: Certain Hot-Rolled Carbon Steel Flat Products, A–485–806 ...... 11/1/05–10/31/06 Taiwan: Certain Hot-Rolled Carbon Steel Flat Products, A–583–835 ...... 11/1/05–10/31/06 Taiwan: Circular Welded Non-Alloy Steel Pipe, A–583–814 ...... 11/1/05–10/31/06 Thailand: Certain Hot-Rolled Carbon Steel Flat Products, A–549–817 ...... 11/1/05–10/31/06 The People’s Republic of China:
1 Or the next business day, if the deadline falls on a weekend, federal holiday or any other day when the Department is closed.
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Periods
Certain Hot-Rolled Carbon Steel Flat Products, A–570–865 ...... 11/1/05–10/31/06 Certain Cut-to-Length Carbon Steel, A–570–849 ...... 11/1/05–10/31/06 Fresh Garlic, A–570–831 ...... 11/1/05–10/31/06 Paper Clips, A–570–826 ...... 11/1/05–10/31/06 Pure Magnesium in Granular Form, A–570–864 ...... 11/1/05–10/31/06 Refined Brown Aluminum Oxide, A–570–882 ...... 11/1/05–10/31/06 Ukraine: Certain Hot-Rolled Carbon Steel Flat Products, A–823–811 ...... 11/1/05–10/31/06
Countervailing Duty Proccedings
Hungary: Sulfanilic Acid, C–437–805 ...... 1/1/05–12/31/05
Suspension Agreements
Ukraine: Certain Cut-to-Length Carbon Steel, A–823–808 ...... 11/1/05–10/31/06
In accordance with § 351.213(b) of the Six copies of the request should be DEPARTMENT OF COMMERCE regulations, an interested party as submitted to the Assistant Secretary for defined by section 771(9) of the Act may Import Administration, International International Trade Administration request in writing that the Secretary Trade Administration, Room 1870, U.S. conduct an administrative review. For Department of Commerce, 14th Street & Antidumping or Countervailing Duty both antidumping and countervailing Constitution Avenue, NW., Washington, Order, Finding, or Suspended duty reviews, the interested party must DC 20230. The Department also asks Investigation; Advance Notification of specify the individual producers or parties to serve a copy of their requests Sunset Reviews exporters covered by an antidumping to the Office of Antidumping/ AGENCY: Import Administration, finding or an antidumping or Countervailing Operations, Attention: International Trade Administration, countervailing duty order or suspension Sheila Forbes, in room 3065 of the main Department of Commerce. agreement for which it is requesting a Commerce Building. Further, in review, and the requesting party must accordance with § 351.303(f)(l)(i) of the ACTION: Notice of upcoming Sunset state why it desires the Secretary to regulations, a copy of each request must Reviews. review those particular producers or be served on every party on the exporters.2 If the interested party Department’s service list. Background intends for the Secretary to review sales The Department will publish in the Every five years, pursuant to section of merchandise by an exporter (or a Federal Register a notice of ‘‘Initiation 751(c) of the Tariff Act of 1930, as producer if that producer also exports of Administrative Review of amended, the Department of Commerce merchandise from other suppliers) Antidumping or Countervailing Duty (‘‘the Department’’) and the which were produced in more than one Order, Finding, or Suspended International Trade Commission country of origin and each country of Investigation’’ for requests received by automatically initiate and conduct a origin is subject to a separate order, then the last day of November 2006. If the review to determine whether revocation the interested party must state Department does not receive, by the last of a countervailing or antidumping duty specifically, on an order-by-order basis, day of November 2006, a request for order or termination of an investigation which exporter(s) the request is review of entries covered by an order, suspended under section 704 or 734 intended to cover. finding, or suspended investigation would be likely to lead to continuation As explained in Antidumping and listed in this notice and for the period or recurrence of dumping or a Countervailing Duty Proceedings: identified above, the Department will countervailable subsidy (as the case may Assessment of Antidumping Duties, 68 instruct the U.S. Customs and Border be) and of material injury. FR 23954 (May 6, 2003), the Department Protection to assess antidumping or has clarified its practice with respect to Upcoming Sunset Reviews for countervailing duties on those entries at the collection of final antidumping December 2006 a rate equal to the cash deposit of (or duties on imports of merchandise where bond for) estimated antidumping or The following Sunset Reviews are intermediate firms are involved. The countervailing duties required on those scheduled for initiation in December public should be aware of this entries at the time of entry, or 2006 and will appear in that month’s clarification in determining whether to withdrawal from warehouse, for Notice of Initiation of Five-Year Sunset request an administrative review of consumption and to continue to collect Reviews. merchandise subject to antidumping the cash deposit previously ordered. findings and orders. See also the Import Antidumping Duty Proceedings Administration Web site at http:// This notice is not required by statute Department Contact ia.ita.doc.gov. but is published as a service to the international trading community. Folding Gift Boxes from the People’s Republic of China (A–570–866). 2 If the review request involves a non-market Dated: October 26, 2006. economy and the parties subject to the review Juanita Chen, (202) 482–1904. request do not qualify for separate rates, all other Thomas F. Futtner, exporters of subject merchandise from the non- Acting Office Director, AD/CVD Operations, Countervailing Duty Proceedings market economy country who do not have a Office 4, Import Administration. separate rate will be covered by the review as part No countervailing duty proceedings of the single entity of which the named firms are [FR Doc. E6–18414 Filed 10–31–06; 8:45 am] are scheduled for initiation in December a part. BILLING CODE 3510–DS–P 2006.
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Suspended Investigations provide substantive comments in FOR FURTHER INFORMATION CONTACT: The No suspended investigations are response to the notice of initiation no Department official identified in the scheduled for initiation in December later than 30 days after the date of Initiation of Review(s) section below at 2006. initiation. AD/CVD Operations, Import The Department’s procedures for the This notice is not required by statute Administration, International Trade conduct of Sunset Reviews are set forth but is published as a service to the Administration, U.S. Department of in 19 CFR 351.218. Guidance on international trading community. Commerce, 14th & Constitution Ave., methodological or analytical issues Dated: October 25, 2006. NW., Washington, DC 20230. For information from the Commission relevant to the Department’s conduct of Thomas F. Futtner, Sunset Reviews is set forth in the contact Mary Messer, Office of Acting Office Director, AD/CVD Operations, Investigations, U.S. International Trade Department’s Policy Bulletin 98.3— Office 4, Import Administration. Commission at (202) 205–3193. Policies Regarding the Conduct of Five- [FR Doc. E6–18440 Filed 10–31–06; 8:45 am] Year (‘‘Sunset’’) Reviews of SUPPLEMENTARY INFORMATION: BILLING CODE 3510–DS–P Antidumping and Countervailing Duty Background Orders; Policy Bulletin, 63 FR 18871 (April 16, 1998) (‘‘Sunset Policy DEPARTMENT OF COMMERCE The Department’s procedures for the Bulletin’’). The Notice of Initiation of conduct of Sunset Reviews are set forth Five-Year (‘‘Sunset’’) Reviews provides International Trade Administration in its Procedures for Conducting Five- further information regarding what is Year (‘‘Sunset’’) Reviews of required of all parties to participate in Initiation of Five-Year (‘‘Sunset’’) Antidumping and Countervailing Duty Sunset Reviews. Reviews Orders, 63 FR 13516 (March 20, 1998) Pursuant to 19 CFR 351.103(c), the and 70 FR 62061 (October 28, 2005). AGENCY: Department will maintain and make Import Administration, Guidance on methodological or available a service list for these International Trade Administration, analytical issues relevant to the proceedings. To facilitate the timely Department of Commerce. Department’s conduct of Sunset preparation of the service list(s), it is SUMMARY: In accordance with section Reviews is set forth in the Department’s requested that those seeking recognition 751(c) of the Tariff Act of 1930, as Policy Bulletin 98.3—Policies Regarding as interested parties to a proceeding amended (‘‘the Act’’), the Department of the Conduct of Five-Year (‘‘Sunset’’) contact the Department in writing Commerce (‘‘the Department’’) is Reviews of Antidumping and within 15 days of the publication of the automatically initiating a five-year Countervailing Duty Orders; Policy Notice of Initiation. (‘‘Sunset Review’’) of the antidumping Bulletin, 63 FR 18871 (April 16, 1998) Please note that if the Department and countervailing duty orders listed (‘‘Sunset Policy Bulletin’’). receives a Notice of Intent to Participate below. The International Trade from a member of the domestic industry Commission (‘‘the Commission’’) is Initiation of Reviews within 15 days of the date of initiation, publishing concurrently with this notice In accordance with 19 CFR the review will continue. Thereafter, its notice of Institution of Five-Year 351.218(c), we are initiating the Sunset any interested party wishing to Review which covers these same order. Review of the following antidumping participate in the Sunset Review must Effective Date: November 1, 2006. and countervailing duty orders:
DOC case No. ITC case No. Country Product Department contact
A–357–812 ...... 731–TA–892 ..... Argentina ...... Honey ...... Dana Mermelstein, (202) 482–1391. A–570–863 ...... 731–TA–893 ..... PRC ...... Honey ...... Dana Mermelstein, (202) 482–1391. A–588–857 ...... 731–TA–919 ..... Japan ...... Welded Large Diameter Line Pipe ...... Dana Mermelstein, (202) 482–1391. A–201–828 ...... 731–TA–920 ..... Mexico ...... Welded Large Diameter Line Pipe ...... Dana Mermelstein, (202) 482–1391.
Countervailing Duty Proceedings
C–357–813 ...... 701–TA–402 ..... Argentina ...... Honey ...... Dana Mermelstein, (202) 482–1391.
Suspended Investigations the public on the Department’s sunset Notice of Initiation.Because deadlines in Internet Web site at the following Sunset Reviews can be very short, we No suspended investigations are address: ‘‘http://ia.ita.doc.gov/sunset/.’’ urge interested parties to apply for scheduled for initiation in November All submissions in these Sunset access to proprietary information under 2006. Reviews must be filed in accordance administrative protective order (‘‘APO’’) Filing Information with the Department’s regulations immediately following publication in regarding format, translation, service, the Federal Register of the notice of As a courtesy, we are making and certification of documents. These initiation of the sunset review. The information related to Sunset rules can be found at 19 CFR 351.303. Department’s regulations on submission proceedings, including copies of the Pursuant to 19 CFR 351.103(c), the of proprietary information and Department’s regulations regarding Department will maintain and make eligibility to receive access to business Sunset Reviews (19 CFR 351.218) and available a service list for these proprietary information under APO can Sunset Policy Bulletin, the Department’s proceedings. To facilitate the timely be found at 19 CFR 351.304–306. schedule of Sunset Reviews, case preparation of the service list(s), it is history information (i.e., previous requested that those seeking recognition Information Required From Interested margins, duty absorption as interested parties to a proceeding Parties determinations, scope language, import contact the Department in writing Domestic interested parties (defined volumes), and service lists available to within 10 days of the publication of the in section 771(9)(C), (D), (E), (F), and (G)
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of the Act and 19 CFR 351.102(b)) required contents of a substantive for the reviewed firm is listed below in wishing to participate in these Sunset response, on an order-specific basis, are the section entitled ‘‘Final Results of the Reviews must respond not later than 15 set forth at 19 CFR 351.218(d)(3). Note Review.’’ days after the date of publication in the that certain information requirements EFFECTIVE DATE: November 1, 2006. Federal Register of this notice of differ for respondent and domestic FOR FURTHER INFORMATION CONTACT: initiation by filing a notice of intent to parties. Also, note that the Department’s Catherine Cartsos or Richard Rimlinger, participate. The required contents of the information requirements are distinct AD/CVD Operations, Office 5, Import notice of intent to participate are set from the Commission’s information Administration, International Trade forth at 19 CFR 351.218(d)(1)(ii). In requirements. Please consult the Administration, U.S. Department of accordance with the Department’s Department’s regulations for Commerce, 14th Street and Constitution regulations, if we do not receive a notice information regarding the Department’s Avenue, NW, Washington, DC 20230; 1 of intent to participate from at least one conduct of Sunset Reviews. Please telephone: (202) 482–1757 or (202) 482– domestic interested party by the 15-day consult the Department’s regulations at 4477. deadline, the Department will 19 CFR Part 351 for definitions of terms SUPPLEMENTARY INFORMATION: automatically revoke the orders without and for other general information further review. concerning antidumping and Background See 19 CFR 351.218(d)(1)(iii). countervailing duty proceedings at the On May 11, 2006, the Department of For sunset reviews of countervailing Department. Commerce (the Department) published duty orders, parties wishing the This notice of initiation is being the preliminary results of the Department to consider arguments that published in accordance with section administrative review of the countervailable subsidy programs have 751(c) of the Act and 19 CFR 351.218(c). antidumping duty order on granular been terminated must include with their Dated: October 26, 2006. polytetrafluoroethylene resin (PTFE) substantive responses information and Thomas F. Futtner, from Japan. See Granular documentation addressing whether the Acting Office Director, AD/CVD Operations, Polytetrafluoroethylene Resin From changes to the program were (1) limited Office 4, Import Administration. Japan: Preliminary Results of to an individual firm or firms and (2) [FR Doc. E6–18441 Filed 10–31–06; 8:45 am] Antidumping Duty Administrative effected by an official act of the BILLING CODE 3510–DS–P Review, 71 FR 27459 (May 11, 2006). government. Further, a party claiming The period of review is August 1, 2004, program termination is expected to through July 31, 2005. The company for document that there are no residual DEPARTMENT OF COMMERCE which we are conducting the benefits under the program and that administrative review is Asahi Glass substitute programs have not been International Trade Administration Fluoropolymers, Ltd. (Asahi). introduced. Cf. 19 CFR 351.526(b) and [A–588–707] We invited interested parties to (d). If a party maintains that any of the comment on the preliminary results. We subsidies countervailed by the Granular Polytetrafluoroethylene Resin received comments from Asahi. The Department were not conferred From Japan: Final Results of petitioner in this case did not comment. pursuant to a subsidy program, that Antidumping Duty Administrative Asahi also submitted an untimely party should nevertheless address the Review request for a hearing which we denied. applicability of the factors set forth in The Department has conducted this 19 CFR 351.526(b) and (d). Similarly, AGENCY: Import Administration, administrative review in accordance parties wishing the Department to International Trade Administration, with section 751 of the Tariff Act of consider whether a company’s change Department of Commerce. 1930, as amended (the Act). in ownership has extinguished the SUMMARY: On May 11, 2006, the benefit from prior non-recurring, Department of Commerce published the Scope of Order allocable, subsidies must include with preliminary results of the administrative The merchandise covered by the their substantive responses information review of the antidumping duty order antidumping duty order is PTFE, filled and documentation supporting their on granular polytetrafluoroethylene or unfilled. The order excludes PTFE claim that all or almost all of the resin from Japan. The review covers one dispersions in water, fine powders, and company’s shares or assets were sold in manufacturer/exporter. The period of reprocessed PTFE powder. PTFE is an arm’s length transaction, at a price review is August 1, 2004, through July currently classifiable under subheading representing fair market value, as 31, 2005. 3904.61.00 of the Harmonized Tariff described in the Notice of Final We gave interested parties an Schedule of the United States (HTSUS). Modification of Agency Practice Under opportunity to comment on the This order covers all PTFE, regardless of Section 123 of the Uruguay Round preliminary results. Based on our its tariff classification. Although the Agreements Act, 68 FR 37125 (June 23, analysis of the comments received, we HTSUS subheadings are provided for 2003) (Modification Notice). See have made changes in the margin convenience and customs purposes, the Modification Notice for a discussion of calculations. Therefore, the final results written description of the order remains the types of information and differ from the preliminary results. The dispositive. documentation the Department requires. final weighted–average dumping margin If we receive an order-specific notice Analysis of the Comments Received of intent to participate from a domestic 1 In comments made on the interim final sunset All issues raised in the case brief regulations, a number of parties stated that the interested party, the Department’s proposed five-day period for rebuttals to submitted by Asahi in the context of regulations provide that all parties substantive responses to a notice of initiation was this administrative review are addressed wishing to participate in the Sunset insufficient. This requirement was retained in the in the ‘‘Issues and Decision Review must file complete substantive final sunset regulations at 19 CFR 351.218(d)(4). As Memorandum’’ (Decision Memo) from provided in 19 CFR 351.302(b), however, the responses not later than 30 days after Department will consider individual requests for Stephen J. Claeys, Deputy Assistant the date of publication in the Federal extension of that five-day deadline based upon a Secretary, to David M. Spooner, Register of this notice of initiation. The showing of good cause. Assistant Secretary, dated October 23,
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2006, which is hereby adopted by this this notice of final results of the Dated: October 23, 2006. notice. A list of the issues which the administrative review for all shipments Stephen J. Claeys, respondent raised and to which we have of the subject merchandise entered, or Acting Assistant Secretaryfor Import responded is in the Decision Memo and withdrawn from warehouse, for Administration. attached to this notice as an Appendix. consumption on or after the date of Appendix The Decision Memo, which is a public publication, consistent with section document, is on file in the Central 751(a)(1) of the Act: (1) the cash–deposit Comments and Responses Records Unit, main Commerce building, rate for Asahi will be 0.00 percent; (2) Level of Trade Room B–099, and is accessible on the for previously reviewed or investigated [FR Doc. E6–18405 Filed 10–31–06; 8:45 am] Web at http://ia.ita.doc.gov/frn/ companies not listed above, the cash– BILLING CODE 3510–DS–S index.html. The paper copy and deposit rate will continue to be the electronic version of the Decision Memo company–specific rate published for the are identical in content. most recent period; (3) if the exporter is DEPARTMENT OF COMMERCE Changes from the Preliminary Results not a firm covered in this review, a prior International Trade Administration Based on our analysis of the review, or the original less–than-fair– comments we received from Asahi, we value (LTFV) investigation but the [A–337–806] find that Asahi’s two home–market manufacturer is, the cash–deposit rate channels of distribution constitute one will be the rate established for the most Certain Individually Quick Frozen Red level of trade. Our analysis on the level recent period for the manufacturer of Raspberries from Chile: Extension of of trade is discussed in detail in the the merchandise; (4) if neither the the Time Limit for the Final Results of Decision Memo. We made no other exporter nor the producer is a firm Antidumping Duty Administrative Review changes to our analysis. covered in this review, a prior review, Final Results of the Review or the LTFV investigation, the cash– AGENCY: Import Administration, deposit rate shall be 91.74 percent, the International Trade Administration, As a result of our review, we all–others rate established in the LTFV Department of Commerce. determine that a margin of 0.00 percent investigation. See Notice of Final EFFECTIVE DATE: November 1, 2006. exists for Asahi for the period August 1, Determination of Sales at Less Than 2004, through July 31, 2005. FOR FURTHER INFORMATION CONTACT: Fair Value: Granular Yasmin Bordas or Brandon Farlander, Assessment Rate Polytetrafluoroethylene Resin From AD/CVD Operations, Office 1, Import The Department will determine and Japan, 53 FR 25191 (July 5, 1988). These Administration, International Trade U.S. Customs and Border Protection deposit requirements shall remain in Administration, U.S. Department of (CBP) shall assess antidumping duties effect until publication of the final Commerce, 14th Street and Constitution on all appropriate entries. We intend to results of the next administrative Avenue, NW, Washington, DC 20230; issue appropriate assessment review. telephone (202) 482–3813 or (202) 482– instructions directly to CBP within 15 This notice serves as a reminder to 0182, respectively. days of publication of these final results importers of their responsibility under SUPPLEMENTARY INFORMATION: of review. In accordance with 19 CFR 19 CFR 351.402(f) to file a certificate Statutory Time Limits 351.212(b)(1), we have calculated an regarding the reimbursement of Section 751(a)(3)(A) of the Tariff Act importer–specific assessment rate of antidumping duties prior to liquidation of 1930, as amended (the Act), requires 0.00 percent. We will direct CBP to of the relevant entries during the review the Department of Commerce (the liquidate the appropriate entries at this period. Failure to comply with this rate. See 19 CFR 351.212(b)(1). Department) to complete the final requirement could result in the The Department clarified its results of an administrative review ‘‘automatic assessment’’ regulation on Department’s presumption that within 120 days after the date on which May 6, 2003. See Notice of Policy reimbursement of antidumping duties the preliminary results are published. Concerning Assessment of Antidumping occurred and the subsequent assessment However, if it is not practicable to Duties, 68 FR 23954 (May 6, 2003) of doubled antidumping duties. complete the review within this time (Assessment–Policy Notice). This This notice also serves as a reminder period, section 751(a)(3)(A) of the Act clarification will apply to entries of to parties subject to administrative allows the Department to extend the subject merchandise during the period protective order (APO) of their time limit for the final results to 180 of review produced by Asahi for which responsibility concerning the days from the date of publication of the Asahi did not know that the disposition of proprietary information preliminary results. merchandise it sold to an intermediary disclosed under APO in accordance Background (e.g., a reseller, trading company, or with 19 CFR 351.305(a)(3). Timely On August 29, 2005, the Department exporter) was destined for the United notification of the return or destruction published a notice of initiation of States. In such instances, we will of APO materials or conversion to instruct CBP to liquidate unreviewed administrative review of the judicial protective order is hereby antidumping duty order on certain entries at the 91.74 percent all–others requested. Failure to comply with the rate if there is no rate for the individually quick frozen red regulations and the terms of an APO is intermediary involved in the raspberries from Chile, covering the a sanctionable violation. transaction. See the Assessment–Policy period July 1, 2004, through June 30, Notice for a full discussion of this We are issuing and publishing these 2005. See Initiation of Antidumping and clarification. results in accordance with sections Countervailing Duty Administrative 751(a)(1) and 777(i) of the Act. Reviews and Requests for Revocation in Cash–Deposit Requirements Part, 70 FR 51009 (August 29, 2005). On The following deposit requirements August 8, 2006, the Department will be effective upon publication of published the preliminary results of the
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antidumping duty administrative FOR FURTHER INFORMATION CONTACT: Fred The Department has determined that review. See Notice of Preliminary Baker or Robert James, AD/CVD it is not practicable to complete the Results of Antidumping Duty Operations, Office 7, Import preliminary results by the current 245- Administrative Review, Notice of Intent Administration, International Trade day deadline of October 31, 2006. to Revoke in Part: Individually Quick Administration, U.S. Department of Rollwell has reported several new Frozen Red Raspberries from Chile, 71 Commerce, 14th Street and Constitution model types of flanges that the FR 45000 (August 8, 2006). Avenue, NW., Washington, DC 20230; Department has not analyzed in telephone: (202) 482–2924 or (202) 482– previous segments of this proceeding. Extension of Time Limits for Final 0649, respectively. We require additional time to make a Results SUPPLEMENTARY INFORMATION: thorough analysis of these model types The Department requires additional and to determine appropriate model time to verify the cost information Background match weighting criteria. Therefore, in submitted by a respondent in this On February 9, 1994, the Department accordance with section 751(a)(3)(A) of administrative review. Moreover, the published the antidumping duty order the Act, and 19 CFR 351.213(h)(2), the Department requires additional time to on stainless steel flanges from India. See Department is extending the time limit analyze complex cost issues relating to Amended Final Determination and for the preliminary results by 120 days direct material purchases. Thus, it is not Antidumping Duty Order; Certain to February 28, 2007. practicable to complete this review Forged Stainless Steel Flanges from This notice is issued and published in within the original time limit (i.e., India, 59 FR 5994 (February 9, 1994). accordance with sections 751(a)(3)(A) December 6, 2006). Therefore, the On February 28, 2006, we received and 777(i)(1) of the Act. Department is extending the time limit requests for an administrative review for Dated: October 25, 2006. for completion of the final results of this the period February 1, 2005, through Stephen J. Claeys, administrative review until no later than January 31, 2006, from Echjay Forgings February 4, 2007, which is 180 days Deputy Assistant Secretary for Import Pvt. Ltd. (Echjay) and Shree Ganesh Administration. from the date of publication of the Forgings, Ltd. (Shree Ganesh). We also [FR Doc. E6–18407 Filed 10–31–06; 8:45 am] preliminary results. However, February received requests for a new shipper 4 falls on Sunday, and it is the review and, failing that, an BILLING CODE 3510–DS–P Department’s long–standing practice to administrative review, from Kunj issue a determination the next business Forgings Pvt. Ltd. (Kunj), Micro Forge DEPARTMENT OF COMMERCE day when the statutory deadline falls on (India) Ltd. (Micro), Pradeep Metals a weekend, federal holiday, or any other Limited (Pradeep), and Rollwell Forge, National Oceanic and Atmospheric day when the Department is closed. See Ltd. (Rollwell). On April 5, 2006, we Administration Notice of Clarification: Application of initiated administrative reviews of the ‘‘Next Business Day’’ Rule for six companies. See Initiation of Marine Protected Areas Federal Administrative Determination Deadlines Antidumping and Countervailing Duty Advisory Committee Pursuant to the Tariff Act of 1930, As Administrative Reviews and Deferral of Amended, 70 FR 24533 (May 10, 2005). Administrative Reviews, 71 FR 17077 AGENCY: National Ocean Service, Accordingly, the deadline for (April 5, 2006).1 The preliminary results NOAA, Department of Commerce. completion of the final results is of the administrative review are ACTION: Extension of deadline for February 5, 2007. currently due no later than October 31, nominations for the Marine Protected We are issuing and publishing this 2006. Areas Federal Advisory Committee. notice in accordance with sections Extension of Time Limit for Preliminary 751(a)(1) and 777(i)(1) of the Act. SUMMARY: The Department of Commerce Results Dated: October 25, 2006. published a notice in the Federal Stephen J. Claeys, The Tariff Act of 1930, as amended Register on September 26, 2006 (71 FR Deputy Assistant Secretary for Import (the Act), at section 351(a)(3)(A), 45107) seeking nominations for Administration. provides that the Department will issue membership on the Marine Protected [FR Doc. E6–18406 Filed 10–31–06; 8:45 am] the preliminary results of an Areas Federal Advisory Committee administrative review of an (Committee). The deadline for BILLING CODE 3510–DS–S antidumping duty order within 245 nominations by qualified persons to the days after the last day of the anniversary Committee is hereby extended. month of the date of publication of the DEPARTMENT OF COMMERCE DATES: The extended deadline for order. The Act provides further that if nominations to the Committee is International Trade Administration the Department determines that it is not November 30, 2006. practicable to complete the review ADDRESSES: Nominations should be sent [A–533–809] within this time period, the Department may extend the 245-day period to 365 to Lauren Wenzel, National Oceanic and Notice of Extension of Time Limit for days. Atmospheric Administration, National the Preliminary Results of marine Protected Areas Center, 1305 Antidumping Duty Administrative 1 On April 6, 2006, the Department published a East West Highway, Station #12227, Review: Stainless Steel Flanges From notice initiating new shipper reviews of Kunj, Silver Spring, MD 20910. E-mail: India Micro, Pradeep, and Rollwell. See Stainless Steel [email protected]. E-mail Flanges from India: Notice of Initiation of nominations are acceptable. Antidumping Duty New Shipper Reviews, 71 FR AGENCY: Import Administration, 17439 (April 6, 2006). On September 29, 2006, we FOR FURTHER INFORMATION CONTACT: International Trade Administration, rescinded the new shipper reviews with respect to Refer to the Federal Register notice of Department of Commerce. Micro, Pradeep, and Rollwell. See Certain Forged Stainless Steel Flanges from India: Notice of Partial September 26, 2006, or contact Lauren DATES: Effective Dates: Rescission of New Shipper Reviews, 71 FR 57468 Wenzel, (301) 713–3100 x136, November 1, 2006. (September 29, 2006). [email protected].
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Dated: October 26, 2006. of the collection of information, DEPARTMENT OF DEFENSE Elizabeth R. Scheffler, includingsuggestions for reducing this Associate Assistant Administrator for burden to the General GENERAL SERVICES Management, National Ocean Service. ServicesAdministration, Regulatory ADMINISTRATION [FR Doc. 06–9013 Filed 10–31–06; 8:45 am] Secretariat (VIR), 1800 F Street, NW, BILLING CODE 3510–08–M Room 4035,Washington, DC 20405. FOR NATIONAL AERONAUTICS AND FURTHER INFORMATION CONTACT: SPACE ADMINISTRATION Ms. JerittaParnell, Contract Policy DEPARTMENT OF DEFENSE Division, GSA, (202)501–4082. [OMB Control No. 9000–0096] GENERAL SERVICES SUPPLEMENTARY INFORMATION: Federal Acquisition Regulation; Submission for OMB Review; Patents ADMINISTRATION A. Purpose AGENCIES: Department of Defense (DOD), NATIONAL AERONAUTICS AND Title III of the Defense Production Act General ServicesAdministration (GSA), SPACE ADMINISTRATION (DPA) of 1950 authorizes variousforms and National Aeronautics and Space [OMB Control No. 9000–0133] of Government assistance to encourage Administration (NASA). expansion of productioncapacity and Federal Acquisition Regulation; supply of industrial resources essential ACTION: Notice of request for comments Information to national defense.The DPA regarding anextension to an existing Collection;DefenseProduction Act Amendments of 1992 provide for the OMB clearance (9000–0096). Amendments testing, qualification, and useof SUMMARY: Under the provisions of the industrial resources manufactured or AGENCIES: Department of Defense (DOD), Paperwork ReductionAct of 1995 (44 General ServicesAdministration (GSA), developed with assistance U.S.C. Chapter 35), the Federal and National Aeronautics and Space providedunder Title III of the DPA. Acquisition Regulation(FAR) Secretariat Administration (NASA). FAR 34.1 and 52.234–1 require has submitted to the Office of ACTION: Notice of request for comments contractors, upon the direction ofthe Management and Budget(OMB) a regarding anextension to an existing contracting officer, to test Title III request to review and approve an OMB clearance (9000–0133). industrial resources forqualification, extension of a currently and provide the test results to the approvedinformation collection SUMMARY: Under the provisions of the Defense Production ActOffice. The FAR requirement concerning patents. A Paperwork ReductionAct of 1995 (44 coverage also expresses Government request forpublic comments was U.S.C. Chapter 35), the Federal policy to pay for suchtesting and published in the Federal Register at Acquisition Regulation(FAR) Secretariat provides definitions, procedures, and a 71FR 40998, on July 19, 2006. No public will be submitting to the Office of contract clause toimplement the policy. comments were received. Management and Budget(OMB) a This information is used by the Defense Public comments are particularly request to review and approve an ProductionAct Office, Title III Program, invited on: Whether this collection extension of a currently to determine whether the Title ofinformation is necessary for the approvedinformation collection IIIindustrial resource has been provided proper performance of functions of requirement concerning Defense theFAR, and whether it will have an impartial opportunity toqualify. Production ActAmendments. A request practical utility; whether our estimate for public comments was published in B. Annual Reporting Burden ofthe public burden of this collection of the Federal Register at 71 FR 38866, information is accurate, and basedon July 10, 2006. No commentswere Respondents: 6. valid assumptions and methodology; received. The clearancecurrently expires Responses Per Respondent: 3. ways to enhance the quality, utility,and on October 31, 2006. Total Annual Responses: 18. clarity of the information to be Public comments are particularly collected; and ways in which we invited on: Whether this collection Hours Per Response: 100. canminimize the burden of the ofinformation is necessary for the Total Burden Hours: 1,800. collection of information on those who proper performance of functions of Obtaining Copies of Proposals: are torespond, through the use of theFAR, and whether it will have Requesters may obtain acopy of the appropriate technological collection practical utility; whether our estimate techniquesor other forms of information information collection documents from ofthe public burden of this collection of technology. information is accurate, and basedon the General ServicesAdministration, DATES: Submit comments on or before valid assumptions and methodology; Regulatory Secretariat (VIR), Room December 1, 2006. ways to enhance the quality, utility,and 4035, Washington, DC20405, telephone clarity of the information to be (202) 501–4755. Please cite OMB ADDRESSES: Submit comments including collected; and ways in which we Control Number9000–0133, Defense suggestions forreducing this burden to: canminimize the burden of the Production Act Amendments, in FAR Desk Officer, OMB, Room 10102, collection of information on those who allcorrespondence. NEOB,Washington, DC 20503, and a are torespond, through the use of copy to the General Services Ralph De Stefano, appropriate technological collection Administration,FAR Secretariat (VIR), techniquesor other forms of information Director, Contract Policy Division Room 4035 1800 F Street, NW., technology. [FR Doc. 06–8993 Filed 10–31–06; 8:45 am] Washington, DC 20405. DATES: Comments may be submitted on BILLING CODE 6820–EP–S FOR FURTHER INFORMATION CONTACT: or before December 1, 2006. Ernest Woodson,Contract Policy ADDRESSES: Submit comments regarding Division, GSA (202) 501–3775. this burdenestimate or any other aspect SUPPLEMENTARY INFORMATION:
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A. Purpose Management Section, Washington CATEGORIES OF RECORDS IN THE SYSTEM: The patent coverage in FAR subpart Headquarters Services, 1155 Defense Delete entry and replace with: 27.2 requires the contractor toreport Pentagon, Washington, DC 20301–1155. ‘‘School Student Record Files.’’ each notice of a claim of patent or FOR FURTHER INFORMATION CONTACT: Ms. Information includes records of student copyright infringement that cameto the Juanita Irvin at (703) 696–4940. (name, Social Security Number, date of birth, citizenship, etc.) and sponsor contractor’s attention in connection SUPPLEMENTARY INFORMATION: The Office identifiers and sponsor’s permanent with performing aGovernment contract of the Secretary of Defense notices for address, student performance, above a dollar value of $25,000 systems of records subject to the Privacy achievements and recognition (sections27.202–1 and 52.227–2). The Act of 1974 (5 U.S.C. 552a), as amended, (academic, citizenship, and athletic), contractor is also required toreport all have been published in the Federal royalties anticipated or paid in excess of standardized achievement tests scores Register and are available from the and grades; reading records, letters of $250 for the use ofpatented inventions address above. by furnishing the name and address of recommendation, parental The proposed systems reports, as correspondence, related information, licensor, date oflicense agreement, required by 5 U.S.C. 552a(r) of the patent number, brief description of item and similar records. In addition, records Privacy Act of 1974, as amended, were may include the following: or component,percentage or dollar rate submitted October 17, 2006, to the Health Record Files. Includes student of royalty per unit, unit price of contract House Committee on Government health records, immunization records, item,and number of units (sections Reform, the Senate Committee on parental permission forms, screening 27.204–1, 52.227–6, and52.227–9). The Homeland Security and Governmental results, sports physicals, physician information collected is to protect the Affairs, and the Office of Management referrals, medication instructions, rights of thepatent holder and the and Budget (OMB) pursuant to consent forms, copies of accident interest of the Government. paragraph 4c of Appendix I to OMB reports, and similar records. B. Annual Reporting Burden Circular No. A–130, ‘‘Federal Agency School Special Education Files. Responsibilities for Maintaining Information pertaining to special Number of Respondents: 30. Records About Individuals,’’ dated education programs to include Responses Per Respondent: 1. February 8, 1996 (February 20, 1996, 61 Total Responses: 30. preferrals and referral forms and, when FR 6427). Average Burden Hours Per Response: appropriate, samples of student’s work; .5. Dated: October 26, 2006. Individual Education Plans; Case Study Total Burden Hours: 15. C.R. Choate, Committee reports and minutes; test results and protocols; disciplinary Obtaining Copies of Proposals: Alternate OSD Federal Register Liaison Requesters may obtain acopy of the Officer, Department of Defense. records, behavior plans and related information collection documents from information; assessment and evaluation the General ServicesAdministration, DODDS 26 reports; correspondence between teachers, service providers and/or FAR Secretariat (VIR), Room 4035, 1800 SYSTEM NAME: F Street, NW,Washington, DC 20405, parents; file access records and cross- DoD Domestic and Elementary School telephone (202) 501–4755. Please cite reference location information; results Program Files (May 9 2003, 68 FR OMBControl No. 9000–0096, Patents, in of special education administrative 24935). all correspondence. hearings and other informal and formal conflict resolution procedures, such as CHANGES: Ralph De Stefano, mediated agreements or settlement Director, Contract Policy Division. SYSTEM IDENTIFIER: documents; related service-provider [FR Doc. 06–8994 Filed 10–31–06; 8:45 am] Delete entry and replace with: reports, and teacher notes relevant to BILLING CODE 6820–EP–S ‘‘DoDEA 26’’ the child’s special education program or needs. SYSTEM NAME: School Ancillary Service Files. DEPARTMENT OF DEFENSE Delete entry and replace with: Information on non-special education ‘‘Department of Defense Education supplemental student services, such as: Office of the Secretary of Defense Activity Dependent Children’s School Gifted Program, English as a Second [DOD–2006–OS–0208] Program Files’’ Language (ESL), Compensatory Education, Reading Improvement to Privacy Act of 1974; System of SYSTEM LOCATION: include consultation and referrals, test Records Delete entry and replace with: protocols, assessments and evaluation ‘‘DoDEA Headquarters Office; DoDEA plans and results, progress and AGENCY: Office of the Secretary, DoD. Area (DoDDS-Europe, DoDDS-Pacific, evaluation reports and summaries, ACTION: Notice To Alter a System of and DDESS) offices and school districts. teachers’ notes, general correspondence, Records. Specific addresses for each Area office and samples of student’s work, and and school district may be obtained related information. SUMMARY: The Office of the Secretary of from the DoDEA Web site at School Registration Card Files. Defense is altering a system of records www.dodea.edu. or from the DoDEA, Sponsor and/or pupil registration cards to its existing inventory of record Headquarters office, 4040 North Fairfax reflecting student and sponsor social systems subject to the Privacy Act of Drive, Arlington, VA 22203–1634, security numbers, grade/rank 1974 (5 U.S.C. 552a), as amended. telephone 703 588–3200.’’ enrollment verification, sponsoring DATES: The changes will be effective on agency, emergency locator information, December 1, 2006 unless comments are CATEGORIES OF INDIVIDUALS COVERED BY THE and similar files. received that would result in a contrary SYSTEM: Teacher Class Register Files. Grade determination. Delete entry and replace with: books reflecting scholastic marks and ADDRESSES: Send comments to the OSD ‘‘Current and former students in schools averages, teacher comments and/or Privacy Act Coordinator, Records operated by DoDEA, world-wide.’’ notes, student attendance and
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withdrawal information, and similar ROUTINE USES OF RECORDS MAINTAINED IN THE specifically authorized individuals. files. SYSTEM, INCLUDING CATEGORIES OF USERS AND Password authorization, assignment and THE PURPOSES OF SUCH USES: Transcript Files. Information consists monitoring are the responsibility of the solely of the student’s permanent Delete entry and replace with: ‘‘In functional managers.’’ records (transcripts) reflecting student addition to those disclosures generally RETENTION AND DISPOSAL: name and social security number, permitted under 5 U.S.C. 552a(b) of the grades, course titles, credits, and similar Privacy Act, these records or Delete entry and replace with: related information. information contained therein may ‘‘School Student Record Files. ‘Destroy/ specifically be disclosed outside the Transcript Request Files and other delete files other than secondary DoD as a routine use pursuant to 5 transcripts of all information except, Disclosure Files. Request forms and U.S.C. 552a(b)(3) as follows: correspondence authorizing release of report cards or other records of To a non-DoD school, upon request, academic promotion or retention data transcript and other school student in which the child is enrolled when the record files. after 1 year. Destroy or delete all non child is enrolled in the school at DoD secondary transcript files 3–5 years after Report Card Files. Report cards that expense. graduation, transfer, withdrawal, or reflect scholastic grades, promotion, To Federal and State educational death of student. Secondary School retention. agencies and public and private entities Transcripts will be cut off upon transfer, Attendance and Discipline Files. as needed to complete a student’s withdrawal, or death of student. Information reflecting attendance and application for or receipt of financial Secondary Transcript files are destroyed disciplinary actions, to include teacher aid. when 50 years old. DoDDS student referrals, tardy and/or admission slips, To Federal, State, and/local records are retained at the school for correspondence to and from parents, governmental officials to protect health four years following the graduation, student and/or witness statements, and and safety in the event of emergencies. transfer, withdrawal, or death of student school investigative files, and similar To public and private organizations or until school closure whichever related information. conducting studies on or on behalf of occurs first, and are then transferred to DoDEA. System Wide Assessment Files. the Area for one year, and then are To State and local social service System Wide Assessment results for transferred to the DoDEA Records offices relative to law enforcement individual students and aggregated Center at Fort Benning, Georgia, until inquiries and investigations and child results for classrooms, schools, districts destroyed. DDESS student records are placement/support proceedings. and areas. stored at the school until destroyed. To private individuals, who have School Mediation Agreement and Panama student records are stored at the been appointed to DoDEA school DoDEA Records Center at Fort Benning, Hearing Results Files. Material on Boards, advisory committees, student mediations and hearings other than that Georgia, until destroyed.’ All other disciplinary committees, school records included in this data base contained in the individual student improvement teams, and similar record.’’ follow the disposition schedules of the committees established by DoDEA, to following files: perform authorized DoDEA activities or Health Record Files. Place in student AUTHORITY FOR MAINTENANCE OF THE SYSTEM: functions. record file upon transfer, withdrawal, or The DoD ‘Blanket Routine Uses’ set Delete entry and replace with: ‘‘10 death of student. U.S.C. 2164, DoD Domestic Dependent forth at the beginning of the OSD Elementary and Secondary Schools; 10 compilation of systems of records School Special Education Files. U.S.C. 113, Secretary of Defense; 20 notices also apply to this system.’’ Destroy/Delete when 5 years old. Cut off U.S.C. 921–932, Overseas Defense on graduation, transfer, withdrawal or POLICIES AND PRACTICES FOR STORING, Dependent’s education; and E.O. 9397 death of student. RETRIEVING, ACCESSING, RETAINING, AND Ancillary Service Files. Transfer to (SSN).’’ DISPOSING OF RECORDS IN THE SYSTEM: student record file upon transfer, PURPOSE(S): STORAGE: withdrawal, or death of student. Delete entry and replace with: Registration Card Files. Transfer Delete entry and replace with: ‘‘The ‘‘Records are maintained in file folders, current card to student record file upon purpose of this system is to determine microfilm, disks, magnetic tape, and graduation, transfer, withdrawal, or enrollment eligibility and tuition status other electronic storage media.’’ death of student. (Supporting in DoDEA and DoDEA funded non-DoD documents used to determine eligibility, schools; schedule children for classes RETRIEVABILITY: such as sponsor’s orders, birth and transportation; record attendance, Add the following to the entry ‘‘Social certificates, custody documents, absence and withdrawal; record and Security Number (SSN), date of birth, housing documents (CONUS), and monitor student progress, grades, course and student number.’’ similar documents may be destroyed). A and grade credits, services, school copy of current card is maintained in activities, student awards, special SAFEGUARDS: the student record file to authorize interests, hobbies and accomplishments; Delete entry and replace with: release of records. Destroy when develop an appropriate educational ‘‘Access is provided on a ‘need-to-know’ superseded. program, services and placement; basis and to authorized authenticated provide information for enrollment and personnel only. Records are maintained Teacher Class Register Files. Destroy/ student financial aid for post-DoDEA in controlled access rooms or areas. Delete when 1 year old. Cut off at end education and employment; obtain and Computer terminal access is controlled of school year. preserve school academic and athletic by terminal identification and the Master Student List Files. Destroy/ accreditation; to provide directory password or similar system. Terminal Delete when 25 years. Cut off at end of information to military recruiters; to identification is positive and school year and retain in the CFA. perform other related authorized maintained by control points. Physical Transcript Files. Maintain transcripts educational duties required.’’ access to terminals is restricted to IAW School Student Record Files.
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Transcript Request Files. Destroy/ time of school attendance, date of birth, School Special Education Files. Delete when 2 years old. Cut off at end identity and location of school attended, Information pertaining to special of school year. dates of attendance, and signature. education programs to include Secondary Report Card Files. Transfer Parents or legal guardians of a student preferrals and referral forms and, when to student record file upon TWD of may be given access to the Children’s appropriate, samples of student’s work; student. School Program Files records without Individual Education Plans; Case Study Attendance and Discipline Files. regard to who has custody of the child, Committee reports and minutes; test Destroy/delete when one year old. Cut unless the child is age 18 or over, or a results and protocols; disciplinary off at end of school year. court has directed otherwise.’’ records, behavior plans and related System Wide Assessment Files. information; assessment and evaluation RECORD SOURCE CATEGORIES: Destroy after 6 years. Individual reports reports; correspondence between maintained with the student records Delete entry and replace with: teachers, service providers and/or shall be retained in accordance with the ‘‘Individuals, school teachers, principals parents; file access records and cross- disposition instructions in FN 1005–06 and administrators; counselors, medical reference location information; results (School Student Record Files). personnel, parents/guardians, of special education administrative School Mediation Agreement and occupational and physical therapists, hearings and other informal and formal Hearing Results Files. Destroy/Delete testing materials and activities, other conflict resolution procedures, such as when 20 years old. Cut off after final educational facilities, medical facilities, mediated agreements or settlement decision. Retire OSD-related records to (examinations and assessments), documents; related service-provider the FRC when 5 years old. military commanders and installation reports, and teacher notes relevant to Panama Student Records File. Destroy activities.’’ the child’s special education program or when 50 years old. * * * * * needs. Records stored at the schools; DoDEA DoDEA 26 School Ancillary Service Files. Records Center, 7441 Custer Road, Information on non-special education Building 2670, Fort Benning, GA 31905; SYSTEM NAME: supplemental student services, such as: and Thompson Learning, Inc. Department of Defense Education Gifted Program, English as a Second (contractor) 2000 Lenox Drive, Activity Dependent Children’s School Language (ESL), Compensatory Lawrenceville, NJ 08648. Destroy when Program Files. Education, Reading Improvement to 50 years old.’’ include consultation and referrals, test SYSTEM LOCATION: protocols, assessments and evaluation SYSTEM MANAGER(S) AND ADDRESS: DoDEA Headquarters Office DoDEA plans and results, progress and Add the following to the entry: ‘‘Area Area (DoDDS-Europe, DoDDS-Pacific, evaluation reports and summaries, school district system manager and DDESS) offices and school districts. teachers’ notes, general correspondence, addresses may be obtained from the Specific addresses for each Area office and samples of student’s work, and Office of the Director, DoDEA, 4040 and school districts may be obtained related information. North Fairfax Drive, Arlington, VA from the DoDEA Web site at School Registration Card Files. 22203–1634 or by visiting the Web site www.dodea.edu. or from the DoDEA, Sponsor and/or pupil registration cards www.dodea.edu.’’ Headquarters office, 4040 North Fairfax reflecting student and sponsor social NOTIFICATION PROCEDURE: Drive, Arlington, VA 22203–1634, security numbers, grade/rank telephone 703 588–3200. Delete entry and replace with: enrollment verification, sponsoring agency, emergency locator information, ‘‘Individuals seeking to determine CATEGORIES OF INDIVIDUALS COVERED BY THE whether this system contains SYSTEM: and similar files. information about themselves should Current and former students in Teacher Class Register Files. Grade address written inquiries to Area or schools operated by DoDEA, world- books reflecting scholastic marks and District Systems Managers or the wide. averages, teacher comments and/or Privacy Act Officer, Department of notes, student attendance and Defense Education Activity, 4040 North CATEGORIES OF RECORDS IN THE SYSTEM: withdrawal information, and similar Fairfax Drive, Arlington, VA 22203– School Student Record Files. files. 1635. Information includes records of student Transcript Files. Information consists Written requests for information (name, Social Security Number, date of solely of the student’s permanent should contain the full name, name birth, citizenship, etc.) and sponsor records (transcripts) reflecting student used at time of school attendance, date identifiers and sponsor’s permanent name and social security number, of birth, identity and location of school address, student performance, grades, course titles, credits, and similar attended, dates of attendance, and achievements and recognition related information. signature.’’ (academic, citizenship, and athletic), Transcript Request Files and other standardized achievement tests scores Disclosure Files. Request forms and RECORD ACCESS PROCEDURES: and grades; reading records, letters of correspondence authorizing release of Delete entry and replace with: recommendation, parental transcript and other school student ‘‘Individuals seeking access to correspondence, related information, record files. information about themselves contained and similar records. In addition, records Report Card Files. Report cards that in this system should address written may include the following: reflect scholastic grades, promotion, inquiries to Area or District Systems Health Record Files. Includes student retention. Managers or the Privacy Act Officer, health records, immunization records, Attendance and Discipline Files. Department of Defense Education parental permission forms, screening Information reflecting attendance and Activity, 4040 North Fairfax Drive, results, sports physicals, physician disciplinary actions, to include teacher Arlington, VA 22203–1635. referrals, medication instructions, referrals, tardy and/or admission slips, Written requests for access should consent forms, copies of accident correspondence to and from parents, contain the full name, name used at reports, and similar records. student and/or witness statements, and
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school investigative files, and similar To State and local social service destroyed. DDESS student records are related information. offices relative to law enforcement stored at the school until destroyed. System Wide Assessment Files. inquiries and investigations and child Panama student records are stored at the System Wide Assessment results for placement/support proceedings. DoDEA Records Center at Fort Benning, individual students and aggregated To private individuals, who have Georgia, until destroyed.’ All other results for classrooms, schools, districts been appointed to DoDEA school records included in this database follow and areas. Boards, advisory committees, student the disposition schedules of the School Mediation Agreement and disciplinary committees, school following files: Hearing Results Files. Material on improvement teams, and similar Health Record Files. Place in student mediations and hearings other than that committees established by DoDEA, to record file upon transfer, withdrawal, or contained in the individual student perform authorized DoDEA activities or death of student. record. functions. School Special Education Files. The DoD ‘Blanket Routine Uses’ set Destroy/Delete when 5 years old. Cut off AUTHORITY FOR MAINTENANCE OF THE SYSTEM: forth at the beginning of the OSD on graduation, transfer, withdrawal or 10 U.S.C. 2164, DoD Domestic compilation of systems of records death of student. Dependent Elementary and Secondary notices also apply to this system. Ancillary Service Files. Transfer to Schools; 10 U.S.C. 113, Secretary of student record file upon transfer, Defense; 20 U.S.C. 921–932, Overseas POLICIES AND PRACTICES FOR STORING, withdrawal, or death of student. Defense Dependent’s education; and RETRIEVING, ACCESSING, RETAINING, AND DISPOSING OF RECORDS IN THE SYSTEM: E.O. 9397 (SSN). Registration Card Files. Transfer STORAGE: current card to student record file upon PURPOSE(S): graduation, transfer, withdrawal, or Records are maintained in file folders, death of student. Supporting documents The purpose of this system is to microfilm, disks, magnetic tape, and used to determine eligibility, such as determine enrollment eligibility and other electronic storage media. tuition status in DoDEA and DoDEA sponsor’s orders, birth certificates, funded non-DoD schools; schedule RETRIEVABILITY: custody documents, housing documents children for classes and transportation; By student surname, Social Security (CONUS), and similar documents may record attendance, absence and Number (SSN), date of birth, and be destroyed). A copy of current card is withdrawal; record and monitor student student number. maintained in the student record file to progress, grades, course and grade authorize release of records. Destroy credits, services, school activities, SAFEGUARDS: when superseded. student awards, special interests, Access is provided on a ‘need-to- Teacher Class Register Files. Destroy/ hobbies and accomplishments; develop know’ basis and to authorized Delete when 1 year old. Cut off at end an appropriate educational program, authenticated personnel only. Records of school year. services and placement; provide are maintained in controlled access Master Student List Files. Destroy/ information for enrollment and student rooms or areas. Computer terminal Delete when 25 years. Cut off at end of financial aid for post-DoDEA education access is controlled by terminal school year and retain in the CFA. and employment; obtain and preserve identification and the password or Transcript Files. Maintain transcripts school academic and athletic similar system. Terminal identification IAW School Student Record Files. accreditation; to provide directory is positive and maintained by control Transcript Request Files. Destroy/ information to military recruiters; to points. Physical access to terminals is Delete when 2 years old. Cut off at end perform other related authorized restricted to specifically authorized of school year. educational duties required. individuals. Password authorization, Secondary Report Card Files. Transfer assignment and monitoring are the ROUTINE USES OF RECORDS MAINTAINED IN THE to student record file upon TWD of responsibility of the functional student. SYSTEM, INCLUDING CATEGORIES OF USERS AND managers. THE PURPOSES OF SUCH USES: Attendance and Discipline Files. In addition to those disclosures RETENTION AND DISPOSAL: Destroy/Delete when one year old. Cut generally permitted under 5 U.S.C. School Student Record Files. off at end of school year. 552a(b) of the Privacy Act, these records ‘Destroy/delete files other than System Wide Assessment Files. or information contained therein may secondary transcripts of all information Destroy after 6 years. Individual reports specifically be disclosed outside the except, report cards or other records of maintained with the student records DoD as a routine use pursuant to 5 academic promotion or retention data shall be retained in accordance with the U.S.C. 552a(b)(3) as follows: after 1 year. Destroy or delete all non disposition instructions in FN 1005–06 To a non-DoD school, upon request, secondary transcript files 3–5 years after (School Student Record Files). in which the child is enrolled when the graduation, transfer, withdrawal, or School Mediation Agreement and child is enrolled in the school at DoD death of student. Secondary School Hearing Results Files. Destroy/Delete expense. Transcripts will be cut off upon transfer, when 20 years old. Cut off after final To Federal and State educational withdrawal, or death of student. decision. Retire OSD-related records to agencies and public and private entities Secondary Transcript files are destroyed the FRC when 5 years old. as needed to complete a student’s when 50 years old. DoDDS student Panama Student Records File. Destroy application for or receipt of financial records are retained at the school for when 50 years old. aid. four years following the graduation, Records stored at the schools; DoDEA To Federal, State, and/local transfer, withdrawal, or death of student Records Center, 7441 Custer Road, governmental officials to protect health or until school closure whichever Building 2670, Fort Benning, GA 31905; and safety in the event of emergencies. occurs first, and are then transferred to and Thompson Learning, Inc. To public and private organizations the Area for one year, and then are (contractor) 2000 Lenox Drive, conducting studies on or on behalf of transferred to the DoDEA Records Lawrenceville, NJ 08648. Destroy when DoDEA. Center at Fort Benning, Georgia, until 50 years old.
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SYSTEM MANAGER(S) AND ADDRESS: unless the child is age 18 or over, or a 22(b)(3), 26(b), 37(c)(1), and 41(a) of the Area school district system manager court has directed otherwise. Rules of Practice and Procedure, United addresses may be obtained from the States Court of Appeals for the Armed CONTESTING RECORDS PROCEDURES: Office of the Director, DoDEA, 4040 Forces for public notice and comment. North Fairfax Drive, Arlington, VA The OSD rules for accessing records, New language is in bold print. Language for contesting contents and appealing 22203–1634 or by visiting the Web site to be deleted is marked by a initial agency determinations are www.dodea.edu. strikethrough. contained in OSD Administrative NOTIFICATION PROCEDURE: Instruction 81; 32 CFR part 311; or may DATES: Comments on the proposed Individuals seeking to determine be obtained from the system manager. changes must be received by December 1, 2006. whether this system contains RECORD SOURCE CATEGORIES: information about themselves should Individuals, school teachers, ADDRESSES: You may submit comments, address written inquiries to Area or principals and administrators; identified by docket number and or RIN District Systems Managers or the counselors, medical personnel, parents/ number and title, by any of the Privacy Act Officer, Department of guardians, occupational and physical following methods: Defense Education Activity, 4040 North therapists, testing materials and • Federal eRulemaking Portal: http:// Fairfax Drive, Arlington, VA 22203– activities, other educational facilities, www.regulations.gov. Follow the 1635. medical facilities, (examinations and instructions for submitting comments. Written requests for information assessments), military commanders and • Mail: Federal Docket Management should contain the full name, name installation activities. System Office, 1160 Defense Pentagon, used at time of school attendance, date Washington, DC 20301–1160. of birth, identity and location of school EXEMPTIONS CLAIMED FOR THE SYSTEM: Instructions: All submissions received attended, dates of attendance, and None. signature. must include the agency name and [FR Doc. E6–18360 Filed 10–31–06; 8:45 am] docket number or Regulatory RECORD ACCESS PROCEDURES: BILLING CODE 5001–06–P Information Number (RIN) for this Individuals seeking access to Federal Register document. The general information about themselves contained policy for comments and other in this system should address written DEPARTMENT OF DEFENSE submissions from members of the public is to make these submissions available inquiries to Area or District Systems Office of the Secretary Managers or the Privacy Act Officer, for public viewing on the Internet at Department of Defense Education [DoD–2006–OS–0135] http://regulations.gov as they are Activity, 4040 North Fairfax Drive, received without change, including any Arlington, VA 22203–1635. U.S. Court of Appeals for the Armed personal identifiers or contact Written requests for access should Forces Proposed Rules Changes information. contain the full name, name used at ACTION: Notice of proposed changes to FOR FURTHER INFORMATION CONTACT: time of school attendance, date of birth, the Rules of Practice and Procedure of William A. DeCicco, Clerk of the Court, identity and location of school attended, the United States Court of Appeals for telephone (202) 761–1448, ext. 600. dates of attendance, and signature. the Armed Forces. Parents or legal guardians of a student Dated: October 25, 2006. may be given access to the Children’s SUMMARY: This notice announces the L.M. Bynum, School Program Files records without following proposed changes to Rules Alternate OSD Federal Liaison Officer, DoD. regard to who has custody of the child, 9(e), 14, 19(a)(5), 19(b)(3), 19(g), BILLING CODE 5001–06–M
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[FR Doc. 06–8998 Filed 10–31–06; 8:45 am] BILLING CODE 5001–06–C
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DEPARTMENT OF DEFENSE DEPARTMENT OF ENERGY (866) 208–3676 (toll free). For TTY, call (202) 502–8659. Department of the Navy Federal Energy Regulatory Commission Magalie R. Salas, Meeting of the Chief of Naval Secretary. [FR Doc. E6–18341 Filed 10–31–06; 8:45 am] Operations (CNO) Executive Panel [Docket No. RP07–28–000] BILLING CODE 6717–01–P AGENCY: Department of the Navy, DoD. CenterPoint Energy—Mississippi River Transmission Corporation; Notice of ACTION: Notice of closed meeting. DEPARTMENT OF ENERGY Penalty Revenue Credit Report Federal Energy Regulatory SUMMARY: The CNO Executive Panel October 25, 2006. will form consensus advice for the final Commission Take notice that on October 19, 2006, report on the findings and [Docket No. RP07–29–000] recommendations of the Global CenterPoint Energy—Mississippi River Governance Subcommittee to the CNO. Transmission Corporation (MRT) Cheyenne Plains Gas Pipeline The meeting will consist of discussions tendered for filing a refund report Company, LLC; Notice of Proposed of the U.S. Navy’s emerging missions showing penalty revenues that will be Changes in FERC Gas Tariff and relationships with non-military refunded, with interest, to the affected October 25, 2006. organizations. shippers upon approval from the Commission. Take notice that on October 20, 2006, DATES: The meeting will be held on Any person desiring to intervene or to Cheyenne Plains Gas Pipeline Company, November 28, 2006, from 3 p.m. to 4:30 protest this filing must file in L.L.C. (Cheyenne Plains) tendered for p.m. accordance with Rules 211 and 214 of filing as part of its FERC Gas Tariff, the Commission’s Rules of Practice and Original Volume No. 1, Second Revised ADDRESSES: The meeting will be held in Sheet No. 309 to become effective Procedure (18 CFR 385.211 and the Center for Naval Analysis November 20, 2006. 385.214). Protests will be considered by Corporation Boardroom at 4825 Mark Cheyenne Plains states that the tariff the Commission in determining the Center Drive, Alexandria, VA 22311– sheet specifies that electric driven 1846. appropriate action to be taken, but will compressors will be included in not serve to make protestants parties to Cheyenne Plains’ existing fuel gas FOR FURTHER INFORMATION CONTACT: the proceeding. Any person wishing to recovery mechanism. LCDR Chris Stopyra, CNO Executive become a party must file a notice of Any person desiring to intervene or to Panel, 4825 Mark Center Drive, intervention or motion to intervene, as protest this filing must file in Alexandria, VA 22311, 703–681–6207. appropriate. Such notices, motions, or accordance with Rules 211 and 214 of protests must be filed in accordance the Commission’s Rules of Practice and SUPPLEMENTARY INFORMATION: Pursuant with the provisions of § 154.210 of the to the provisions of the Federal Procedure (18 CFR 385.211 and Commission’s regulations (18 CFR 385.214). Protests will be considered by Advisory Committee Act (5 U.S.C. App. 154.210). Anyone filing an intervention the Commission in determining the 2), these matters constitute classified or protest must serve a copy of that appropriate action to be taken, but will information that is specifically document on the Applicant. Anyone not serve to make protestants parties to authorized by Executive Order to be filing an intervention or protest on or the proceeding. Any person wishing to kept secret in the interest of national before the intervention or protest date become a party must file a notice of defense and are, in fact, properly need not serve motions to intervene or intervention or motion to intervene, as classified pursuant to such Executive protests on persons other than the appropriate. Such notices, motions, or Order. Accordingly, the Secretary of the Applicant. protests must be filed in accordance Navy has determined in writing that the The Commission encourages with the provisions of § 154.210 of the public interest requires that all sessions electronic submission of protests and Commission’s regulations (18 CFR of this meeting be closed to the public interventions in lieu of paper using the 154.210). Anyone filing an intervention because they will be concerned with ‘‘eFiling’’ link at http://www.ferc.gov. or protest must serve a copy of that matters listed in section 552b(c)(1) of Persons unable to file electronically document on the Applicant. Anyone title 5, United States Code. should submit an original and 14 copies filing an intervention or protest on or Dated: October 26, 2006. of the protest or intervention to the before the intervention or protest date Federal Energy Regulatory Commission, need not serve motions to intervene or Lynette M. Breutzman, protests on persons other than the Paralegal Specialist, Office of The Judge 888 First Street, NE., Washington, DC 20426. Applicant. Advocate General, Alternate Federal Register The Commission encourages Liaison Officer. This filing is accessible on-line at electronic submission of protests and [FR Doc. E6–18367 Filed 10–31–06; 8:45 am] http://www.ferc.gov, using the interventions in lieu of paper using the BILLING CODE 3810–FF–P ‘‘eLibrary’’ link and is available for ‘‘eFiling’’ link at http://www.ferc.gov. review in the Commission’s Public Persons unable to file electronically Reference Room in Washington, DC. should submit an original and 14 copies There is an ‘‘eSubscription’’ link on the of the protest or intervention to the Web site that enables subscribers to Federal Energy Regulatory Commission, receive e-mail notification when a 888 First Street, NE., Washington, DC document is added to a subscribed 20426. docket(s). For assistance with any FERC This filing is accessible on-line at Online service, please e-mail http://www.ferc.gov, using the [email protected], or call ‘‘eLibrary’’ link and is available for
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review in the Commission’s Public Persons unable to file electronically protests on persons other than the Reference Room in Washington, DC. should submit an original and 14 copies Applicant. There is an ‘‘eSubscription’’ link on the of the protest or intervention to the The Commission encourages Web site that enables subscribers to Federal Energy Regulatory Commission, electronic submission of protests and receive e-mail notification when a 888 First Street, NE., Washington, DC interventions in lieu of paper using the document is added to a subscribed 20426. ‘‘eFiling’’ link at http://www.ferc.gov. docket(s). For assistance with any FERC This filing is accessible online at Persons unable to file electronically Online service, please e-mail http://www.ferc.gov, using the should submit an original and 14 copies [email protected], or call ‘‘eLibrary’’ link and is available for of the protest or intervention to the (866) 208–3676 (toll free). For TTY, call review in the Commission’s Public Federal Energy Regulatory Commission, (202) 502–8659. Reference Room in Washington, DC. 888 First Street, NE., Washington, DC There is an ‘‘eSubscription’’ link on the 20426. Magalie R. Salas, Web site that enables subscribers to This filing is accessible on-line at Secretary. receive e-mail notification when a http://www.ferc.gov, using the [FR Doc. E6–18342 Filed 10–31–06; 8:45 am] document is added to a subscribed ‘‘eLibrary’’ link and is available for BILLING CODE 6717–01–P docket(s). For assistance with any FERC review in the Commission’s Public Online service, please e-mail Reference Room in Washington, DC. [email protected], or call There is an ‘‘eSubscription’’ link on the DEPARTMENT OF ENERGY (866) 208–3676 (toll free). For TTY, call Web site that enables subscribers to receive e-mail notification when a Federal Energy Regulatory (202) 502–8659. document is added to a subscribed Commission Magalie R. Salas, docket(s). For assistance with any FERC [Docket No. RP97–13–026] Secretary. Online service, please e-mail [FR Doc. E6–18344 Filed 10–31–06; 8:45 am] [email protected], or call East Tennessee Natural Gas, LLC; BILLING CODE 6717–01–P (866) 208–3676 (toll free). For TTY, call Notice of Negotiated Rate Filing (202) 502–8659. October 25, 2006. DEPARTMENT OF ENERGY Magalie R. Salas, Take notice that, on October 20, 2006, Secretary. East Tennessee Natural Gas, LLC (East Federal Energy Regulatory [FR Doc. E6–18339 Filed 10–31–06; 8:45 am] Tennessee) submitted a negotiated rate Commission BILLING CODE 6717–01–P filing pursuant to the order of the [Docket No. RP02–534–005] Federal Energy Regulatory Commission issued October 4, 2006 in Docket No. Guardian Pipeline, L.L.C.; Notice of DEPARTMENT OF ENERGY RP97–13–025. Negotiated Rates East Tennessee states that the revised Federal Energy Regulatory tariff sheets remove all references to October 25, 2006. Commission turnback of capacity and modify the Take notice that on October 20, 2006, [Docket No. RP06–393–003] maximum daily transportation quantity Guardian Pipeline, L.L.C. (Guardian) specified in the negotiated rate tendered for filing as part of its FERC National Fuel Gas Supply Corporation; agreement with CNX Gas Company LLC. Gas Tariff, Original Volume No. 1, Notice of Compliance Filing Any person desiring to intervene or to Seventh Revised Sheet No. 6, to become protest this filing must file in effective November 1, 2006. October 25, 2006. accordance with Rules 211 and 214 of Guardian states that the primary Take notice that on October 20, 2006, the Commission’s Rules of Practice and purpose of this filing is to add four National Fuel Gas Supply Corporation Procedure (18 CFR 385.211 and agreements to its Statement of (National Fuel) tendered for filing as 385.214). Protests will be considered by Negotiated Rates. part of its FERC Gas Tariff, Fourth the Commission in determining the Any person desiring to intervene or to Revised Volume No. 1, Twelfth Revised appropriate action to be taken, but will protest this filing must file in Sheet No. 478, with an effective date of not serve to make protestants parties to accordance with Rules 211 and 214 of October 1, 2006. the proceeding. Any person wishing to the Commission’s Rules of Practice and National Fuel states that copies of this become a party must file a notice of Procedure (18 CFR 385.211 and filing were served upon its customers intervention or motion to intervene, as 385.214). Protests will be considered by and interested state commissions. appropriate. Such notices, motions, or the Commission in determining the Any person desiring to protest this protests must be filed in accordance appropriate action to be taken, but will filing must file in accordance with Rule with the provisions of section 154.210 not serve to make protestants parties to 211 of the Commission’s Rules of of the Commission’s regulations (18 CFR the proceeding. Any person wishing to Practice and Procedure (18 CFR 154.210). Anyone filing an intervention become a party must file a notice of 385.211). Protests to this filing will be or protest must serve a copy of that intervention or motion to intervene, as considered by the Commission in document on the Applicant. Anyone appropriate. Such notices, motions, or determining the appropriate action to be filing an intervention or protest on or protests must be filed in accordance taken, but will not serve to make before the intervention or protest date with the provisions of § 154.210 of the protestants parties to the proceeding. need not serve motions to intervene or Commission’s regulations (18 CFR Such protests must be filed in protests on persons other than the 154.210). Anyone filing an intervention accordance with the provisions of Applicant. or protest must serve a copy of that Section 154.210 of the Commission’s The Commission encourages document on the Applicant. Anyone regulations (18 CFR 154.210). Anyone electronic submission of protests and filing an intervention or protest on or filing a protest must serve a copy of that interventions in lieu of paper using the before the intervention or protest date document on all the parties to the ‘‘eFiling’’ link at http://www.ferc.gov. need not serve motions to intervene or proceeding.
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The Commission encourages (Peoples Gas) filed a petition for rate Persons unable to file electronically electronic submission of protests in lieu approval pursuant to section 284.123 should submit an original and 14 copies of paper using the ‘‘eFiling’’ link at and 284.224 of the Commission’s of the protest or intervention to the http://www.ferc.gov. Persons unable to regulations. Peoples Gas is requesting Federal Energy Regulatory Commission, file electronically should submit an that the Commission approve as fair and 888 First Street, NE., Washington, DC original and 14 copies of the protest to equitable rates for new firm one-cycle 20426. the Federal Energy Regulatory exchange service to be provided This filing is accessible on-line at Commission, 888 First Street, NE., pursuant to Peoples Gas’ blanket Washington, DC 20426. authority, and revised rates for its firm http://www.ferc.gov, using the This filing is accessible on-line at and interruptible transportation and ‘‘eLibrary’’ link and is available for http://www.ferc.gov, using the storage service and its interruptible review in the Commission’s Public ‘‘eLibrary’’ link and is available for parking and loaning service, all as more Reference Room in Washington, DC. review in the Commission’s Public fully set forth in the application. There is an ‘‘eSubscription’’ link on the Reference Room in Washington, DC. Any person desiring to participate in Web site that enables subscribers to There is an ‘‘eSubscription’’ link on the this rate proceeding must file a motion receive e-mail notification when a Web site that enables subscribers to to intervene or to protest this filing must document is added to a subscribed receive e-mail notification when a file in accordance with Rules 211 and docket(s). For assistance with any FERC document is added to a subscribed 214 of the Commission’s Rules of Online service, please e-mail docket(s). For assistance with any FERC Practice and Procedure (18 CFR 385.211 [email protected], or call Online service, please e-mail and 385.214). Protests will be (866) 208–3676 (toll free). For TTY, call [email protected], or call considered by the Commission in (202) 502–8659. (866) 208–3676 (toll free). For TTY, call determining the appropriate action to be Comment Date: 5 p.m. Eastern Time (202) 502–8659. taken, but will not serve to make November 16, 2006. Magalie R. Salas, protestants parties to the proceeding. Secretary. Any person wishing to become a party Magalie R. Salas, must file a notice of intervention or [FR Doc. E6–18340 Filed 10–31–06; 8:45 am] Secretary. motion to intervene, as appropriate. [FR Doc. E6–18338 Filed 10–31–06; 8:45 am] BILLING CODE 6717–01–P Such notices, motions, or protests must BILLING CODE 6717–01–P be filed on or before the date as DEPARTMENT OF ENERGY indicated below. Anyone filing an intervention or protest must serve a DEPARTMENT OF ENERGY Federal Energy Regulatory copy of that document on the Applicant. Commission Anyone filing an intervention or protest Federal Energy Regulatory on or before the intervention or protest [Docket No. PR07–1–000] Commission date need not serve motions to intervene Peoples Gas Light and Coke Company; or protests on persons other than the Notice Notice of Petition for Rate Approval Applicant. The Commission encourages October 25, 2006. October 25, 2006. electronic submission of protests and Take notice that on October 18, 2006, interventions in lieu of paper using the Peoples Gas Light and Coke Company ‘‘eFiling’’ link at http://www.ferc.gov.
Regional Transmission Organizations ...... RT01–99–000, RT01–99–001, RT01–99–002 and RT01–99– 003. Bangor Hydro-Electric Company, et al ...... RT01–86–000, RT01–86–001 and RT01–86–002. New York Independent System Operator, Inc., et al ...... RT01–95–000, RT01–95–001 and RT01–95–002. PJM Interconnection, L.L.C., et al ...... RT01–2–000, RT01–2–001, RT01–2–002 and RT01–2–003. PJM Interconnection, L.L.C ...... RT01–98–000. ISO New England, Inc., New York Independent System Op- RT02–3–000. erator, Inc.
Take notice that PJM Interconnection, comment date. Comments may be filed DEPARTMENT OF ENERGY L.L.C., New York Independent System electronically via the Internet in lieu of Operator, Inc. and ISO New England, paper; see 18 CFR 385.2001(a)(1)(iii) Federal Energy Regulatory Inc. have posted on their Internet Web and the instructions on the Commission sites charts and information updating Commission’s Web site under the ‘‘e- their progress on the resolution of ISO Filing’’ link. The Commission strongly [Docket Nos. RP88–67–082; RP98–198–009] seams. encourages electronic filings. Texas Eastern Transmission, LP; Any person desiring to file comments Comment Date: 5 p.m. Eastern Time Notice of Compliance Filing on this information should file with the on November 16, 2006. Federal Energy Regulatory Commission, October 25, 2006. 888 First Street, NE., Washington, DC Magalie R. Salas, Take notice that on October 16, 2006, 20426, in accordance with Rules 211 Secretary. Texas Eastern Transmission, LP (Texas and 214 of the Commission’s Rules of [FR Doc. E6–18337 Filed 10–31–06; 8:45 am] Eastern) tendered for filing as part of its Practice and Procedure (18 CFR 385.211 BILLING CODE 6717–01–P FERC Gas Tariff, Seventh Revised and 385.214). All such comments Volume No. 1 and First Revised Volume should be filed on or before the No. 2, the tariff sheets listed on
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Appendix A to the filing to become (866) 208–3676 (toll free). For TTY, call the requirements of the Commission’s effective December 1, 2006. (202) 502–8659. Rules of Practice and Procedure (18 CFR 385.214 or 385.211). A person obtaining Texas Eastern asserts that the purpose Magalie R. Salas, of this filing is to comply with the party status will be placed on the Secretary. service list maintained by the Secretary Stipulation and Agreement filed by [FR Doc. E6–18343 Filed 10–31–06; 8:45 am] Texas Eastern on December 17, 1991 in of the Commission and will receive BILLING CODE 6717–01–P Docket Nos. RP88–67, et al. (Phase II/ copies of all documents filed by the PCBs) and approved by the Commission applicant and by all other parties. A party must submit 14 copies of filings on March 18, 1992 (Settlement), and DEPARTMENT OF ENERGY with Section 26 of the General Terms made with the Commission and must and Conditions of Texas Eastern’s FERC Federal Energy Regulatory mail a copy to the applicant and to Gas Tariff, Seventh Revised Volume No. Commission every other party in the proceeding. 1. Only parties to the proceeding can ask [Docket No. CP06–34–001] for court review of Commission orders Texas Eastern states that such tariff in the proceeding. sheets reflect a small increase in the Transcontinental Gas Pipe Line Motions to intervene, protests and PCB-Related Cost component of certain Corporation; Notice of Filing comments may be filed electronically of Texas Eastern’s currently effective October 25, 2006. via the Internet in lieu of paper, see, 18 rates. For the other rates the cost Take notice that on October 20, 2006, CFR 385.2001(a)(1)(iii) and the increase is so small that the calculated Transcontinental Gas Pipe Line instructions on the Commission’s Web rate is not changed from the currently Corporation (Transco), Post Office Box site under the ‘‘e-Filing’’ link. The effective rate and no revised tariff sheet 1396, Houston, Texas 77251, filed an Commission strongly encourages is filed. abbreviated application, pursuant to electronic filings. Texas Eastern states that copies of the section 7(c) of the Natural Gas Act Comment Date: 5 p.m. Eastern Time at filing were mailed to all affected (NGA) and Part 157 of the Commission’s November 20, 2006. customers of Texas Eastern and Rules and Regulations to amend its Magalie R. Salas, interested state commissions. Copies of Leidy to Long Island certificate issued Secretary. this filing have also been mailed to all on May 18, 2006. The application is on [FR Doc. E6–18345 Filed 10–31–06; 8:45 am] parties on the service list in Docket Nos. file with the Commission and open for BILLING CODE 6717–01–P RP88–67, et al. public inspection. This filing is Any person desiring to protest this available for review at the Commission filing must file in accordance with Rule in the Public Reference Room or may be DEPARTMENT OF ENERGY 211 of the Commission’s Rules of viewed on the Commission’s Web site at Practice and Procedure (18 CFR http://www.ferc.gov using the Federal Energy Regulatory 385.211). Protests to this filing will be ‘‘eLibrary’’ link. Enter the docket Commission considered by the Commission in number excluding the last three digits in determining the appropriate action to be the docket number field to access the Combined Notice Of Filings # 1 document. For assistance, please contact taken, but will not serve to make October 25, 2006. FERC Online Support at protestants parties to the proceeding. Take notice that the Commission Such protests must be filed in [email protected] or toll free at (866) 208–3676, or for TTY, received the following electric rate accordance with the provisions of filings. § 154.210 of the Commission’s contact (202) 502–8659. Docket Numbers: ER05–1179–005. regulations (18 CFR 154.210). Anyone Transco requests authorization to Applicants: Berkshire Power filing a protest must serve a copy of that include in the scope of the Leidy to Company, LLC. document on all the parties to the Long Island Expansion Project three Description: Berkshire Power Co LLC proceeding. new gas heaters and appurtenant facilities at its existing Long Beach submits Amended and Restated RMR The Commission encourages meter and regulator station, and to Agreement (FERC Rate Schedule 2) and electronic submission of protests in lieu adjust the cost of facilities and rates. Refund Report in compliance with of paper using the ‘‘eFiling’’ link at The total cost adjustment, including Paragraph 31. http://www.ferc.gov. Persons unable to $4.2 million for the heaters and Filed Date: 10/20/2006. file electronically should submit an appurtenant facilities, is an increase of Accession Number: 20061024–0077. original and 14 copies of the protest to $5.3 million. Comment Date: 5 p.m. Eastern Time the Federal Energy Regulatory Any questions regarding the on Monday, November 13, 2006. Commission, 888 First Street, NE., application are to be directed to Scott Docket Numbers: ER06r–191–004. Washington, DC 20426. Turkington, Director, Rates and Applicants: ISO New England Inc.; This filing is accessible online at Regulatory, Transcontinental Gas Pipe New England Participating http://www.ferc.gov, using the Line Corporation, P.O. Box 1396, Transmission Owners; Maine Electric ‘‘eLibrary’’ link and is available for Houston, Texas 77251–1396; phone Power Company. review in the Commission’s Public number (713) 215–3391. Description: ISO New England Inc et Reference Room in Washington, DC. Any person wishing to obtain legal al. submit Supplemental Modifications There is an ‘‘eSubscription’’ link on the status by becoming a party to the to Schedules 22 & 23 of the ISO OATT Web site that enables subscribers to proceedings for this project should, on in compliance with the 4/14/06 receive e-mail notification when a or before the below listed comment Commission’s Order. document is added to a subscribed date, file with the Federal Energy Filed Date: 10/23/2006. docket(s). For assistance with any FERC Regulatory Commission, 888 First Accession Number: 20061024–0180. Online service, please e-mail Street, NE., Washington, DC 20426, a Comment Date: 5 p.m. Eastern Time [email protected], or call motion to intervene in accordance with on Monday, November 13, 2006.
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Docket Numbers: ER06–819–003. Accession Number: 20061024–0074. Description: Western Massachusetts Applicants: Consolidated Edison Comment Date: 5 p.m. Eastern Time Electric Company submits Original Energy Massachusetts. Inc. on Monday, November 13, 2006. Service Agreement IA–NU–06 under Description: Consolidated Edison Docket Numbers: ER07–55–000. Schedule 22 of ISO New England Inc’s Energy Massachusetts, Inc submits a Applicants: Quark Power LLC. Transmission, Markets and Services revised Reliability Agreement with ISO Description: Quark Power LLC Tariff, FERC Electric Tariff 3. New England, Inc pursuant to FERC’s 8/ submits Notice of Cancellation of Filed Date: 10/23/2006. 25/06 Order. Market-Based Rate Tariff, Second Accession Number: 20061024–0177. Filed Date: 10/23/2006. Revised Rate Schedule FERC 1. Comment Date: 5 p.m. Eastern Time Accession Number: 20061025–0070. Filed Date: 10/20/2006. on Monday, November 13, 2006. Comment Date: 5 p.m. Eastern Time Accession Number: 20061024–0070. Take notice that the Commission on Monday, November 13, 2006. Comment Date: 5 p.m. Eastern Time received the following electric securities Docket Numbers: ER06–1377–001. on Monday, November 13, 2006. filings: Applicants: Rochester Gas and Docket Numbers: ER07–56–000. Docket Numbers: ES07–2r–000. Electric Corporation. Applicants: Southern California Applicants: Oklahoma Gas and Description: Rochester Gas and Edison Company. Electric Company. Electric Corp submits an amendment to Description: Southern California Description: Oklahoma Gas and its Interconnection Agreement for Edison Co submits revised rate sheets to Electric Company submits an Robert E. Ginna Nuclear Station/ Service Agreement 2, Eucalyptus application for authority to issue short- responses pursuant to the Commission’s Avenue Wholesale Distribution Load term debt securities in amounts not 9/27/06 letter. Interconnection Facilities Agreement exceeding the aggregate $800,000,000 Filed Date: 10/23/2006. with the City of Moreno Valley. outstanding at any one time. Accession Number: 20061024–0170. Filed Date: 10/23/2006. Filed Date: 10/13/2006. Comment Date: 5 p.m. Eastern Time Accession Number: 20061024–0172. Accession Number: 20061016–0114. on Monday, November 13, 2006. Comment Date: 5 p.m. Eastern Time Comment Date: 5 p.m. Eastern Time Docket Numbers: ER07–51–000. on Monday, November 13, 2006. on Friday, November 3, 2006. Applicants: Entergy Power, Inc. Docket Numbers: ER07–57–000. Docket Numbers: ES07–4–000. Description: Entergy Power, Inc Applicants: Plains End II, LLC. Applicants: Southern California submits a long-term, cost-based capacity Description: Plains End II, LLC Edison Company. sale agreement with Merrill Lynch submits Application for authorization to Description: Southern California Commodities, Inc under Rate Schedule Issue Debt Securities up to $220 million. Edison Company submits revised rate 8. Filed Date: 10/20/2006. Filed Date: 10/20/2006. sheets to Service Agreements 137 and Accession Number: 20061024–0171. Accession Number: 20061024–0072. 138, Cottonwood Avenue Wholesale Comment Date: 5 p.m. Eastern Time Comment Date: 5 p.m. Eastern Time Distribution Load Interconnection on Monday, November 13, 2006. on Monday, November 13, 2006. Facilities Agreement and the Service Agreement. Docket Numbers: ES07–5–000. Docket Numbers: ER07–52–000. Applicants: Baltimore Gas & Electric Filed Date: 10/23/2006. Applicants: MidAmerican Energy Company. Accession Number: 20061024–0174. Company. Description: Baltimore Gas and Comment Date: 5 p.m. Eastern Time Description: MidAmerican Energy Electric Co submits its 2005 Biennial on Monday, November 13, 2006. Company submits an Amended and Short-Term Borrowing Application. Restated Electric Interconnection Docket Numbers: ER07–58–000. Filed Date: 10/23/2006. Agreement with the City of Ames, Iowa. Applicants: Southern California Accession Number: 20061024–0178. Filed Date: 10/19/2006. Edison Company. Comment Date: 5 p.m. Eastern Time Accession Number: 20061024–0073. Description: Southern California on Monday, November 13, 2006. Comment Date: 5 p.m. Eastern Time Edison Co submits revised rate sheets to Any person desiring to intervene or to on Thursday, November 09, 2006. Service Agreement 8, Mountain View II protest in any of the above proceedings Docket Numbers: ER07–53–000. Project Interconnection Facilities must file in accordance with Rules 211 Applicants: American Transmission Agreement with Mountain View Power and 214 of the Commission’s Rules of Company LLC. Partners II, LLC. Practice and Procedure (18 CFR 385.211 Description: American Transmission Filed Date: 10/23/2006. and 385.214) on or before 5 p.m. Eastern Co LLC submits an Amendment 1 to the Accession Number: 20061024–0175. time on the specified comment date. It Generation-Transmission Comment Date: 5 p.m. Eastern Time is not necessary to separately intervene Interconnection Agreement with on Monday, November 13, 2006. again in a subdocket related to a Wisconsin Electric Power Company. Docket Numbers: ER07–59–000. compliance filing if you have previously Filed Date: 10/20/2006. Applicants: Fortis Energy Marketing & intervened in the same docket. Protests Accession Number: 20061024–0075. Trading GP. will be considered by the Commission Comment Date: 5 p.m. Eastern Time Description: Fortis Energy Marketing in determining the appropriate action to on Monday, November 13, 2006. & Trading GP submits a notice of be taken, but will not serve to make Docket Numbers: ER07–54–000. succession and a revised Electric Tariff, protestants parties to the proceeding. Applicants: Berkshire Power Original Volume No. 1. Anyone filing a motion to intervene or Company, LLC. Filed Date: 10/23/2006. protest must serve a copy of that Description: Berkshire Power Accession Number: 20061024–0176. document on the Applicant. In reference Company, LLC submits its limited Comment Date: 5 p.m. Eastern Time to filings initiating a new proceeding, revisions to the provisions of Rate on Monday, November 13, 2006. interventions or protests submitted on Schedule 2 which was previously Docket Numbers: ER07–60–000. or before the comment deadline need approved by FERC’s 9/29/06 Order. Applicants: Western Massachusetts not be served on persons other than the Filed Date: 10/20/2006. Electric Company. Applicant.
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The Commission encourages Ave., NW., Washington, DC 20460; DATES: Comments must be received on electronic submission of protests and telephone number: (202) 564-2045; fax or before January 2, 2007. interventions in lieu of paper, using the number: (202) 564-8382; e-mail address: ADDRESSES: Submit your comments, FERC Online links at http:// [email protected]. identified by docket identification (ID) www.ferc.gov. To facilitate electronic SUPPLEMENTARY INFORMATION: The number EPA–HQ–OPP–2006–0874, by service, persons with Internet access FIFRA SAP meeting originally one of the following methods: who will eFile a document and/or be scheduled for November 14-16, 2006, to •Federal eRulemaking Portal: http:// listed as a contact for an intervenor consider and review issues related to www.regulations.gov. Follow the on-line must create and validate an Studies Evaluating the Impact of Surface instructions for submitting comments. • eRegistration account using the Coatings on the Level of Dislodgeable Mail: Office of Pesticide Programs eRegistration link. Select the eFiling Arsenic, Chromium and Copper from (OPP) Regulatory Public Docket (7502P), link to log on and submit the Chromated Copper Arsenate (CCA)- Environmental Protection Agency, 1200 intervention or protests. treated Wood now will be held Pennsylvania Ave., NW., Washington, Persons unable to file electronically DC 20460-0001. November 15-17, 2006 from 8:30 am to • should submit an original and 14 copies approximately 5:00 pm, eastern time. Delivery: OPP Regulatory Public of the intervention or protest to the This meeting was originally announced Docket (7502P), Environmental Federal Energy Regulatory Commission, in the Federal Register of September 1, Protection Agency, Rm. S-4400, One 888 First St., NE., Washington, DC 2006 (71 FR 52068; FRL–8090–3). All Potomac Yard (South Building), 2777 S. Crystal Drive, Arlington, VA. Deliveries 20426. other information provided in the are only accepted during the Docket’s The filings in the above proceedings September 1, 2006 Notice remains normal hours of operation (8:30 a.m. to are accessible in the Commission’s unchanged. For further information, 4 p.m., Monday through Friday, eLibrary system by clicking on the please notify the Designated Federal appropriate link in the above list. They excluding legal holidays). Special Official (DFO) listed under FOR FURTHER are also available for review in the arrangements should be made for INFORMATION CONTACT. Commission’s Public Reference Room in deliveries of boxed information. The Washington, DC. There is an List of Subjects Docket telephone number is (703) 305- eSubscription link on the Web site that Environmental protection, Pesticides 5805. Instructions: Direct your comments to enables subscribers to receive e-mail and pests. notification when a document is added docket ID number EPA-HQ-OPP-2006 to a subscribed dockets(s). For Dated: October 25, 2006. 0874. EPA’s policy is that all comments assistance with any FERC Online Clifford J. Gabriel, received will be included in the docket service, please e-mail Director, Office of Science Coordination and without change and may be made [email protected]. or call Policy. available on-line at http:// (866) 208–3676 (toll free). For TTY, call [FR Doc. E6–18395 Filed 10–31–06; 8:45 am] www.regulations.gov, including any personal information provided, unless (202) 502–8659. BILLING CODE 6560–50–S the comment includes information Magalie R. Salas, claimed to be Confidential Business Secretary. ENVIRONMENTAL PROTECTION Information (CBI) or other information [FR Doc. E6–18378 Filed 10–31–06; 8:45 am] AGENCY whose disclosure is restricted by statute. BILLING CODE 6717–01–P Do not submit information that you [EPA–HQ–OPP–2006–0874; FRL–8101–5] consider to be CBI or otherwise protected through regulations.gov or e- ENVIRONMENTAL PROTECTION Chlorflurenol Risk Assessment; Notice mail. The Federal regulations.gov AGENCY of Availability, and Risk Reduction website is an ‘‘anonymous access’’ Options system, which means EPA will not [EPA–HQ–OPP–2006–0693; FRL–8102–4] know your identity or contact AGENCY: Environmental Protection FIFRA Scientific Advisory Panel; information unless you provide it in the Agency (EPA). Notice of Change of Public Meeting body of your comment. If you send an Dates ACTION: Notice. e-mail comment directly to EPA without going through regulations.gov, your e- AGENCY: Environmental Protection SUMMARY: This notice announces the mail address will be automatically Agency (EPA). availability of EPA’s risk assessment(s), captured and included as part of the ACTION: Notice. and related documents for the comment that is placed in the docket herbicidal pesticide chlorflurenol, and and made available on the Internet. If SUMMARY: The Agency is issuing this opens a public comment period on these you submit an electronic comment, EPA notice to reschedule a meeting of the documents. The public is encouraged to recommends that you include your Federal Insecticide, Fungicide, and suggest risk management ideas or name and other contact information in Rodenticide Act (FIFRA) Scientific proposals to address the risks identified. the body of your comment and with any Advisory Panel. The meeting, originally EPA is developing a Reregistration disk or CD-ROM you submit. If EPA scheduled for November 14-16, 2006, Eligibility Decision (RED) for cannot read your comment due to was announced in the Federal Register chlorflurenol through a modified, 4- technical difficulties and cannot contact of September 1, 2006 (71 FR 52068; Phase public participation process that you for clarification, EPA may not be FRL–8090–3). This meeting will now be the Agency uses to involve the public in able to consider your comment. held November 15-17, 2006. developing pesticide reregistration and Electronic files should avoid the use of FOR FURTHER INFORMATION CONTACT: tolerance reassessment decisions. This special characters, any form of Joseph E. Bailey, Designated Federal is Phase 3 of the 4-Phase process. encryption, and be free of any defects or Official, Office of Science Coordination Through these programs, EPA is viruses. and Policy (7201M), Environmental ensuring that all pesticides meet current Docket: All documents in the docket Protection Agency, 1200 Pennsylvania health and safety standards. are listed in the docket index. Although
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listed in the index, some information is public docket. Information so marked high density forestry management areas. not publicly available, e.g., CBI or other will not be disclosed except in As a plant growth regulator, information whose disclosure is accordance with procedures set forth in chlorflurenol is used in the production restricted by statute. Certain other 40 CFR part 2. of pineapple planting material (sliplets); material, such as copyrighted material, 2. Tips for preparing your comments. this use is considered to be nonfood as is not placed on the Internet and will be When submitting comments, remember no finite residues are expected. publicly available only in hard copy to: Chlorflurenol is registered in form. Publicly available docket i. Identify the document by docket ID emulsifiable concentrate and granular materials are available either in the number and other identifying formulations. electronic docket at http:// information (subject heading, Federal EPA is providing an opportunity, www.regulations.gov, or, if only Register date and page number). through this notice, for interested available in hard copy, at the OPP ii. Follow directions. The Agency may parties to provide comments and input Regulatory Public Docket in Rm. S-4400, ask you to respond to specific questions on the Agency’s risk assessments for One Potomac Yard (South Building), or organize comments by referencing a chlorflurenol. Such comments and 2777 S. Crystal Drive, Arlington, VA. Code of Federal Regulations (CFR) part input could address, for example, the The hours of operation of this Docket or section number. availability of additional data to further Facility are from 8:30 a.m. to 4 p.m., iii. Explain why you agree or disagree; refine the risk assessments, such as Monday through Friday, excluding legal suggest alternatives and substitute worker, residential, and drinking water holidays. The Docket telephone number language for your requested changes. exposure data and ecological effects is (703) 305-5805. iv. Describe any assumptions and data, or could address the Agency’s risk FOR FURTHER INFORMATION CONTACT: provide any technical information and/ assessment methodologies and Tracy L. Perry, Special Review and or data that you used. assumptions as applied to this specific Reregistration Division (7508P), Office v. If you estimate potential costs or pesticide. of Pesticide Programs, Environmental burdens, explain how you arrived at Through this notice, EPA also is Protection Agency, 1200 Pennsylvania your estimate in sufficient detail to providing an opportunity for interested Ave., NW., Washington, DC 20460-0001; allow for it to be reproduced. parties to provide risk management telephone number: (703) 308-0128; fax vi. Provide specific examples to proposals or otherwise comment on risk number: (703) 308-8005; e-mail illustrate your concerns and suggest management for chlorflurenol. Risks of address:[email protected]. alternatives. concern associated with the use of chlorflurenol are: dermal occupational SUPPLEMENTARY INFORMATION: vii. Explain your views as clearly as possible, avoiding the use of profanity risks from applying liquid sprays with I. General Information or personal threats. rights-of-way equipment at 3 to 5 lbs active ingredient/acre (a.i./A); post- A. Does this Action Apply to Me? viii. Make sure to submit your comments by the comment period application dermal risks for adults at 3 This action is directed to the public deadline identified. lbs a.i./A; post-application dermal risks in general, and may be of interest to a to toddlers from high contact activity on wide range of stakeholders including II. Background lawns at 1 to 3 lbs a.i./A; and risks to environmental, human health, and A. What Action is the Agency Taking? infants from chronic exposure to agricultural advocates; the chemical drinking water using modeled ground industry; pesticide users; and members EPA is releasing for public comment water estimated concentrations. Risk of the public interested in the sale, its human health and ecological risk could not be precluded for terrestrial distribution, or use of pesticides. Since assessments and related documents for and aquatic organisms and plants due to others also may be interested, the chlorflurenol and soliciting public a lack of data; limited data suggest Agency has not attempted to describe all comment on risk management ideas or potential chronic risk to mammals. In the specific entities that may be affected proposals. EPA developed the risk targeting these risks of concern, the by this action. If you have any questions assessments and risk characterization Agency solicits information on effective regarding the applicability of this action for chlorflurenol through a modified and practical risk reduction measures. to a particular entity, consult the person version of its public process for making EPA seeks to achieve environmental listed under FOR FURTHER INFORMATION pesticide reregistration eligibility and justice, the fair treatment and CONTACT. tolerance reassessment decisions. meaningful involvement of all people, Through these programs, EPA is regardless of race, color, national origin, B. What Should I Consider as I Prepare ensuring that pesticides meet current or income, in the development, My Comments for EPA? standards under the Federal Insecticide, implementation, and enforcement of 1. Submitting CBI. Do not submit this Fungicide, and Rodenticide Act (FIFRA) environmental laws, regulations, and information to EPA through and the Federal Food, Drug, and policies. To help address potential regulations.gov or e-mail. Clearly mark Cosmetic Act (FFDCA), as amended by environmental justice issues, the the part or all of the information that the Food Quality Protection Act of 1996 Agency seeks information on any groups you claim to be CBI. For CBI (FQPA). or segments of the population who, as information in a disk or CD ROM that Chlorflurenol is a nonfood use a result of their location, cultural you mail to EPA, mark the outside of the herbicide, plant growth retardant, and practices, or other factors, may have disk or CD ROM as CBI and then plant growth regulator used in atypical, unusually high exposure to identify electronically within the disk or agricultural, commercial, and chlorflurenol, compared to the general CD ROM the specific information that is residential settings. As an herbicide or population. claimed as CBI. In addition to one plant growth retardant, it is used for the EPA is applying the principles of complete version of the comment that postemergent control of annual grasses, public participation to all pesticides includes information claimed as CBI, a broadleaf weeds, trees, shrubs and vines undergoing reregistration and tolerance copy of the comment that does not for nonagricultural rights-of-way (e.g., reassessment. The Agency’s Pesticide contain the information claimed as CBI utility lines), lawns, ornamental turf Tolerance Reassessment and must be submitted for inclusion in the (including golf courses and parks), and Reregistration; Public Participation
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Process, published in the Federal application to register the pesticide cannot read your comment due to Register on May 14, 2004 (69 FR product Racer(TM) Concentrate technical difficulties and cannot contact 26819)(FRL–7357–9), explains that in containing the active ingredient you for clarification, EPA may not be conducting these programs, the Agency ammonium nonanoate not included in able to consider your comment. is tailoring its public participation any previously registered product Electronic files should avoid the use of process to be commensurate with the pursuant to the provisions of section special characters, any form of level of risk, extent of use, complexity 3(c)(5) of the Federal Insecticide, encryption, and be free of any defects or of the issues, and degree of public Fungicide, and Rodenticide Act viruses. concern associated with each pesticide. (FIFRA), as amended. Docket: All documents in the docket For chlorflurenol, a modified, 4-Phase DATES: Comments must be received on are listed in the docket index. Although process with one comment period and or before December 1, 2006. listed in the index, some information is ample opportunity for public not publicly available, e.g., CBI or other ADDRESSES: Submit your comments, information whose disclosure is consultation seems appropriate in view identified by docket identification (ID) restricted by statute. Certain other of its limited use. However, if as a result number EPA–HQ–OPP–2006–0296, by of comments received during this material, such as copyrighted material, one of the following methods: is not placed on the Internet and will be comment period EPA finds that • Federal eRulemaking Portal: http:// publicly available only in hard copy additional issues warranting further www.regulations.gov. Follow the on-line discussion are raised, the Agency may form. Publicly available docket instructions for submitting comments. materials are available either in the lengthen the process and include a • Mail: Office of Pesticide Programs electronic docket at http:// second comment period, as needed. (OPP) Regulatory Public Docket (7502P), All comments should be submitted www.regulations.gov, or, if only Environmental Protection Agency, 1200 using the methods in ADDRESSES, and available in hard copy, at the OPP Pennsylvania Ave., NW., Washington, must be received by EPA on or before Regulatory Public Docket in Rm. S-4400, the closing date. Comments will become DC 20460–0001. One Potomac Yard (South Building), • Delivery: OPP Regulatory Public part of the Agency Docket for 2777 S. Crystal Drive, Arlington, VA. Docket (7502P), Environmental chlorflurenol. Comments received after The hours of operation of this Docket the close of the comment period will be Protection Agency, Rm. S-4400, One Facility are from 8:30 a.m. to 4 p.m., marked ‘‘late.’’ EPA is not required to Potomac Yard (South Building), 2777 S. Monday through Friday, excluding legal consider these late comments. Crystal Drive, Arlington, VA. Deliveries holidays. The Docket telephone number are only accepted during the Docket’s is (703) 305–5805. B. What is the Agency’s Authority for normal hours of operation (8:30 a.m. to In accordance with section 3(c)(2) of Taking this Action? 4 p.m., Monday through Friday, FIFRA, a copy of the approved label, the Section 4(g)(2) of FIFRA as amended excluding legal holidays). Special list of data references, the data and other directs that, after submission of all data arrangements should be made for scientific information used to support concerning a pesticide active ingredient, deliveries of boxed information. The registration, except for material ‘‘the Administrator shall determine Docket telephone number is (703) 305– specifically protected by section 10 of whether pesticides containing such 5805. FIFRA, are also available for public active ingredient are eligible for Instructions: Direct your comments to inspection. Requests for data must be reregistration,’’ before calling in docket ID number EPA–HQ–OPP–2006– made in accordance with the provisions product-specific data on individual end- 0296 EPA’s policy is that all comments of the Freedom of Information Act and use products and either reregistering received will be included in the docket must be addressed to the Freedom of products or taking other ‘‘appropriate without change and may be made Information Office (A–101), 1200 regulatory action.’’ available on-line at http:// Pennsylvania Ave., NW., Washington, www.regulations.gov, including any List of Subjects DC 20460–0001. The request should: personal information provided, unless Identify the product name and Environmental protection, Pesticides the comment includes information registration number and specify the data and pests. claimed to be Confidential Business or information desired. Information (CBI) or other information A paper copy of the fact sheet, which Dated: October 24, 2006. whose disclosure is restricted by statute. Peter Caulkins, provides more detail on this Do not submit information that you registration, may be obtained from the Acting Director, Special Review and consider to be CBI or otherwise Reregistration Division, Office of Pesticide National Technical Information Service protected through regulations.gov or e- (NTIS), 5285 Port Royal Rd., Programs. mail. The Federal regulations.gov [FR Doc. E6–18398 Filed 10–31–06; 8:45 am] Springfield, VA 22161. website is an ‘‘anonymous access’’ FOR FURTHER INFORMATION CONTACT BILLING CODE 6560–50–S : system, which means EPA will not Raderrio Wilkins, Biopesticides and know your identity or contact Pollution Prevention Division (7511P), information unless you provide it in the ENVIRONMENTAL PROTECTION Office of Pesticide Programs, body of your comment. If you send an AGENCY Environmental Protection Agency, 1200 e-mail comment directly to EPA without Pennsylvania Ave., NW., Washington, [EPA–HQ–OPP–2006–0296; FRL–8098–4] going through regulations.gov, your e- DC 20460–0001; telephone number: mail address will be automatically Pesticide Product Registration (703) 308–1259; e-mail address: captured and included as part of the [email protected]. Approval; Request for Comments comment that is placed in the docket SUPPLEMENTARY INFORMATION: AGENCY: Environmental Protection and made available on the Internet. If Agency (EPA). you submit an electronic comment, EPA I. General Information ACTION: Notice. recommends that you include your name and other contact information in A. Does this Action Apply to Me? SUMMARY: This notice announces the body of your comment and with any You may be potentially affected by approval and requests comments on an disk or CD-ROM you submit. If EPA this action if you are an agricultural
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producer, food manufacturer, or your estimate in sufficient detail to ENVIRONMENTAL PROTECTION pesticide manufacturer. Potentially allow for it to be reproduced. AGENCY affected entities may include, but are vi. Provide specific examples to [EPA–HQ–OPP–2006–0799; FRL–8095–3] not limited to: illustrate your concerns and suggest • Crop production (NAICS code 111). • alternatives. Pesticide Products; Indole-3-Acetic Animal production (NAICS code Acid Registration Application 112). vii. Explain your views as clearly as • Food manufacturing (NAICS code possible, avoiding the use of profanity AGENCY: Environmental Protection 311). or personal threats. Agency (EPA). • Pesticide manufacturing (NAICS viii. Make sure to submit your ACTION: Notice. code 32532). comments by the comment period This listing is not intended to be deadline identified. SUMMARY: This notice announces receipt exhaustive, but rather provides a guide of an application to register Technical II. Did EPA Approve the Application? for readers regarding entities likely to be Indole-3-acetic Acid containing a new affected by this action. Other types of The Agency approved the application active ingredient not included in any entities not listed in this unit could also after considering all required data on previously registered products pursuant be affected. The North American risks associated with the proposed use to the provisions of section 3(c)(4) of the Industrial Classification System of ammonium nonanoate, and Federal Insecticide, Fungicide, and (NAICS) codes have been provided to information on social, economic, and Rodenticide Act (FIFRA), as amended. assist you and others in determining environmental benefits to be derived DATES: Comments must be received on whether this action might apply to from use. Specifically, the Agency has or before January 2, 2007. certain entities. If you have any considered the nature of the chemical ADDRESSES: Submit your comments, questions regarding the applicability of and its pattern of use, application identified by docket identification (ID) this action to a particular entity, consult methods and rates, and level and extent number EPA–HQ–OPP–2006–0799, by the person listed under FOR FURTHER of potential exposure. Based on these one of the following methods: INFORMATION CONTACT. reviews, the Agency was able to make • Federal eRulemaking Portal: B. What Should I Consider as I Prepare basic health and safety determinations http://www.regulations.gov. Follow the My Comments for EPA? which show that use of ammonium on-line instructions for submitting nonanoate when used in accordance 1. Submitting CBI. Do not submit this comments. with widespread and commonly • information to EPA through Mail: Office of Pesticide Programs recognized practice, will not generally regulations.gov or e-mail. Clearly mark (OPP) Regulatory Public Docket (7502P), cause unreasonable adverse effects to the part or all of the information that Environmental Protection Agency, 1200 the environment. you claim to be CBI. For CBI Pennsylvania Ave., NW., Washington, DC 20460–0001. information in a disk or CD ROM that III. Approved Application • you mail to EPA, mark the outside of the Delivery: OPP Regulatory Public disk or CD ROM as CBI and then The company submitted an Docket (7502P), Environmental identify electronically within the disk or application to EPA to register the Protection Agency, Rm. S–4400, One TM CD ROM the specific information that is pesticide product Racer( ) Concentrate Potomac Yard (South Bldg.), 2777 S. claimed as CBI. In addition to one (EPA Registration Number 79766–1) Crystal Drive, Arlington, VA. Deliveries complete version of the comment that containing the chemical ammonium are only accepted during the Docket’s includes information claimed as CBI, a nonanoate at 40%. This product is used normal hours of operation 8:30 a.m. to copy of the comment that does not in nurseries, greenhouses, landscapes, 4 p.m., Monday through Friday, contain the information claimed as CBI and interior scapes for the suppression excluding legal holidays. Special must be submitted for inclusion in the and control of weeds including: Grasses, arrangements should be made for public docket. Information so marked vines, underbrush, annual/perennial deliveries of boxed information. The will not be disclosed except in plants, including moss, sapling, and tree Docket telephone number is (703) 305– accordance with procedures set forth in suckers. However, since the notice of 5805. 40 CFR part 2. receipt of the application to register the Instructions: Direct your comments to 2. Tips for preparing your comments. product as required by section 3(c)(4) of docket ID number EPA–HQ–OPP–2006– When submitting comments, remember FIFRA, as amended, did not publish in 0799. EPA’s policy is that all comments to: the Federal Register, interested parties received will be included in the docket i. Identify the document by docket ID may submit comments on or before without change and may be made number and other identifying December 1, 2006 for this product. available on-line at http:// information (subject heading, Federal The application was approved as www.regulations.gov, including any Register date and page number). RacerTM Concentrate on September 21, personal information provided, unless ii. Follow directions. The Agency may 2006 for this end-use product. the comment includes information ask you to respond to specific questions claimed to be Confidential Business or organize comments by referencing a List of Subjects Information (CBI) or other information whose disclosure is restricted by statute. Code of Federal Regulations (CFR) part Environmental protection, Chemicals, Do not submit information that you or section number. Pesticides and pests. iii. Explain why you agree or disagree; consider to be CBI or otherwise suggest alternatives and substitute Dated: October 17, 2006. protected through regulations.gov or e- language for your requested changes. Janet L. Andersen, mail. The Federal regulations.gov iv. Describe any assumptions and Director, Biopesticides and Pollution website is an ‘‘anonymous access’’ provide any technical information and/ Prevention Division, Office of Pesticide system, which means EPA will not or data that you used. Programs. know your identity or contact v. If you estimate potential costs or [FR Doc. E6–18429 Filed 10–31–06; 8:45 am] information unless you provide it in the burdens, explain how you arrived at BILLING CODE 6560–50–S body of your comment. If you send an
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e-mail comment directly to EPA without This listing is not intended to be II. Registration Application going through regulations.gov, your e- exhaustive, but rather provides a guide EPA received an application to mail address will be automatically for readers regarding entities likely to be register a pesticide product containing captured and included as part of the affected by this action. Other types of an active ingredient not included in any comment that is placed in the docket entities not listed in this unit could also previously registered products pursuant and made available on the Internet. If be affected. The North American to the provision of section 3(c)(4) of you submit an electronic comment, EPA Industrial Classification System FIFRA. Notice of receipt of this recommends that you include your (NAICS) codes have been provided to application does not imply a decision name and other contact information in assist you and others in determining by the Agency on the application. the body of your comment and with any whether this action might apply to File Symbol: 57538–EI. Applicant: disk or CD-ROM you submit. If EPA certain entities. If you have any Stoller Enterprises, Inc., 4001 W. Sam cannot read your comment due to questions regarding the applicability of Houston PkWy N. Suite 100, Houston, technical difficulties and cannot contact this action to a particular entity, consult TX 77043. Product name: Technical you for clarification, EPA may not be the person listed under FOR FURTHER Indole-3-acetic Acid. Biochemical plant able to consider your comment. INFORMATION CONTACT. growth regulator Active ingredient: Electronic files should avoid the use of Indole-3-acetic acid at 99 percent. special characters, any form of B. What Should I Consider as I Prepare Proposed classification/Use: encryption, and be free of any defects or My Comments for EPA? Biochemical manufacturing-use viruses. 1. Submitting CBI. Do not submit this Docket: All documents in the docket information to EPA through product. C. Frazer. are listed in the docket index. Although regulations.gov or e-mail. Clearly mark List of Subjects listed in the index, some information is the part or all of the information that Environmental protection, Pesticides not publicly available, e.g., CBI or other you claim to be CBI. For CBI and pest. information whose disclosure is information in a disk or CD ROM that restricted by statute. Certain other you mail to EPA, mark the outside of the Dated: September 26, 2006. material, such as copyrighted material, disk or CD ROM as CBI and then Janet L. Andersen, is not placed on the Internet and will be identify electronically within the disk or Director, Biopesticides and Pollution publicly available only in hard copy CD ROM the specific information that is Prevention Division, Office of Pesticide form. Publicly available docket claimed as CBI. In addition to one Programs. materials are available either in the complete version of the comment that [FR Doc. E6–18261 Filed 10–31–06; 8:45 am] electronic docket at http:// includes information claimed as CBI, a BILLING CODE 6560–50–S www.regulations.gov, or, if only copy of the comment that does not available in hard copy, at the OPP contain the information claimed as CBI Regulatory Public Docket in Rm. S– must be submitted for inclusion in the ENVIRONMENTAL PROTECTION 4400, One Potomac Yard (South Bldg.), public docket. Information so marked AGENCY 2777 S. Crystal Drive, Arlington, VA. will not be disclosed except in The hours of operation of this Docket accordance with procedures set forth in [EPA–HQ–OPP–2006–0811; FRL–8097–1] Facility are from 8:30 a.m. to 4 p.m., 40 CFR part 2. Pesticide Products; Registration 2. Tips for preparing your comments. Monday through Friday, excluding legal Application holidays. The Docket telephone number When submitting comments, remember is (703) 305–5805. to: AGENCY: Environmental Protection FOR FURTHER INFORMATION CONTACT: i. Identify the document by docket ID Agency (EPA). Carol E. Frazer, Biopesticides and number and other identifying ACTION: Notice. Pollution Prevention Division (7511P), information (subject heading, Federal Office of Pesticide Programs, Register date and page number). SUMMARY: This notice announces receipt Environmental Protection Agency, 1200 ii. Follow directions. The Agency may of an application to register a pesticide Pennsylvania Ave., NW., Washington, ask you to respond to specific questions product containing a new active DC 20460–0001; telephone number: or organize comments by referencing a ingredient not included in any currently (703) 308–8810; e-mail address: Code of Federal Regulations (CFR) part registered products pursuant to the [email protected]. or section number. provisions of section 3(c)(4) of the iii. Explain why you agree or disagree; Federal Insecticide, Fungicide, and SUPPLEMENTARY INFORMATION: suggest alternatives and substitute Rodenticide Act (FIFRA), as amended. language for your requested changes. I. General Information DATES: Comments must be received on iv. Describe any assumptions and or before December 1, 2006. A. Does this Action Apply to Me? provide any technical information and/ You may be potentially affected by or data that you used. ADDRESSES: Submit your comments, this action if you are an agricultural v. If you estimate potential costs or identified by docket identification (ID) producer, food manufacturer, or burdens, explain how you arrived at number EPA–HQ–OPP–2006–0811, by pesticide manufacturer. Potentially your estimate in sufficient detail to one of the following methods: • affected entities may include, but are allow for it to be reproduced. Federal eRulemaking Portal: http:// not limited to: vi. Provide specific examples to www.regulations.gov. Follow the on-line • Crop production (NAICS code illustrate your concerns and suggest instructions for submitting comments. • 111). alternatives. Mail: Office of Pesticide Programs • Animal production (NAICS code vii. Explain your views as clearly as (OPP) Regulatory Public Docket (7502P), 112). possible, avoiding the use of profanity Environmental Protection Agency, 1200 • Food manufacturing (NAICS code or personal threats. Pennsylvania Ave., NW., Washington, 311). viii. Make sure to submit your DC 20460–0001. • Pesticide manufacturing (NAICS comments by the comment period • Delivery: OPP Regulatory Public code 32532). deadline identified. Docket (7502P), Environmental
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Protection Agency, Rm. S-4400, One Facility are from 8:30 a.m. to 4 p.m., 2. Tips for preparing your comments. Potomac Yard (South Building), 2777 S. Monday through Friday, excluding legal When submitting comments, remember Crystal Drive, Arlington, VA. Deliveries holidays. The Docket telephone number to: are only accepted during the Docket’s is (703) 305–5805. i. Identify the document by docket ID normal hours of operation (8:30 a.m. to FOR FURTHER INFORMATION CONTACT: number and other identifying 4 p.m., Monday through Friday, Denise Greenway, Biopesticides and information (subject heading, Federal excluding legal holidays). Special Pollution Prevention Division (7511P), Register date and page number). arrangements should be made for Office of Pesticides, Environmental ii. Follow directions. The Agency may deliveries of boxed information. The Protection Agency, 1200 Pennsylvania, Docket telephone number is (703) 305– ask you to respond to specific questions Ave., NW., Washington, DC 20460– or organize comments by referencing a 5805. 0001; telephone number: (703) 308– Instructions: Direct your comments to Code of Federal Regulations (CFR) part 8263; e-mail or section number. docket ID number EPA–HQ–OPP–2006– address:[email protected]. 0811. EPA’s policy is that all comments iii. Explain why you agree or disagree; received will be included in the docket SUPPLEMENTARY INFORMATION: suggest alternatives and substitute without change and may be made I. General Information language for your requested changes. available on-line at http:// A. Does this Action Apply to Me? iv. Describe any assumptions and www.regulations.gov, including any provide any technical information and/ personal information provided, unless You may be potentially affected by or data that you used. the comment includes information this action if you are an agricultural claimed to be Confidential Business producer, food manufacturer, or v. If you estimate potential costs or Information (CBI) or other information pesticide manufacturer. Potentially burdens, explain how you arrived at whose disclosure is restricted by statute. affected entities may include, but are your estimate in sufficient detail to Do not submit information that you not limited to: allow for it to be reproduced. consider to be CBI or otherwise • Crop production (NAICS code 111). vi. Provide specific examples to protected through regulations.gov or e- • Animal production (NAICS code illustrate your concerns and suggest mail. The Federal regulations.gov 112). alternatives. • website is an ‘‘anonymous access’’ Food manufacturing (NAICS code vii. Explain your views as clearly as system, which means EPA will not 311). possible, avoiding the use of profanity • Pesticide manufacturing (NAICS know your identity or contact or personal threats. information unless you provide it in the code 32532). body of your comment. If you send an This listing is not intended to be viii. Make sure to submit your e-mail comment directly to EPA without exhaustive, but rather provides a guide comments by the comment period going through regulations.gov, your e- for readers regarding entities likely to be deadline identified. mail address will be automatically affected by this action. Other types of II. Registration Application captured and included as part of the entities not listed in this unit could also comment that is placed in the docket be affected. The North American EPA received an application as and made available on the Internet. If Industrial Classification System follows to register a pesticide product you submit an electronic comment, EPA (NAICS) codes have been provided to containing an active ingredient not recommends that you include your assist you and others in determining included in any previously registered name and other contact information in whether this action might apply to products pursuant to the provision of the body of your comment and with any certain entities. If you have any section 3(c)(4) of FIFRA. Notice of disk or CD-ROM you submit. If EPA questions regarding the applicability of receipt of this application does not cannot read your comment due to this action to a particular entity, consult imply a decision by the Agency on the technical difficulties and cannot contact the person listed under FOR FURTHER application. INFORMATION CONTACT. you for clarification, EPA may not be Product Containing an Active Ingredient able to consider your comment. B. What Should I Consider as I Prepare not Included in any Previously Electronic files should avoid the use of My Comments for EPA? Registered Product special characters, any form of encryption, and be free of any defects or 1. Submitting CBI. Do not submit this File Symbol: 75771–R. Applicant: viruses. information to EPA through Ticks or Mosquitoes, LLC, 905 S. Docket: All documents in the docket regulations.gov or e-mail. Clearly mark Kingshighway, Sikeston, MO 63801. are listed in the docket index. Although the part or all of the information that Product name: Biter Fighter TM. Type of listed in the index, some information is you claim to be CBI. For CBI product: Biochemical insect attractant. not publicly available, e.g., CBI or other information in a disk or CD ROM that Active ingredient: Calcium lactate at information whose disclosure is you mail to EPA, mark the outside of the 25.19%. Proposed classification/Use: restricted by statute. Certain other disk or CD ROM as CBI and then None. An attractant used in insect traps. material, such as copyrighted material, identify electronically within the disk or is not placed on the Internet and will be CD ROM the specific information that is List of Subjects claimed as CBI. In addition to one publicly available only in hard copy Environmental protection, Pesticides complete version of the comment that form. Publicly available docket and pest. materials are available either in the includes information claimed as CBI, a electronic docket at http:// copy of the comment that does not Dated: October 25, 2006. www.regulations.gov, or, if only contain the information claimed as CBI Janet L. Andersen, available in hard copy, at the OPP must be submitted for inclusion in the Director, Biopesticides and Pollution Regulatory Public Docket in Rm. S-4400, public docket. Information so marked Prevention Division, Office of Pesticide One Potomac Yard (South Building), will not be disclosed except in Programs. 2777 S. Crystal Drive, Arlington, VA. accordance with procedures set forth in [FR Doc. E6–18380 Filed 10–31–06; 8:45 am] The hours of operation of this Docket 40 CFR part 2. BILLING CODE 6560–50–S
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ENVIRONMENTAL PROTECTION comment directly to EPA without going This listing is not intended to be AGENCY through regulations.gov, your e-mail exhaustive, but rather provides a guide address will be automatically captured for readers regarding entities likely to be [EPA–HQ–OPP–2006–0783; FRL–8095–4] and included as part of the comment affected by this action. Other types of Bacillus thuringiensis Vip3A Protein that is placed in the docket and made entities not listed in this unit could also and the Genetic Material Necessary for available on the Internet. If you submit be affected. The North American its Production in Corn; Notice of Filing an electronic comment, EPA Industrial Classification System of a Pesticide Petition to Establish a recommends that you include your (NAICS) codes have been provided to Temporary Tolerance name and other contact information in assist you and others in determining the body of your comment and with any whether this action might apply to AGENCY: Environmental Protection disk or CD-ROM you submit. If EPA certain entities. If you have any Agency (EPA). cannot read your comment due to questions regarding the applicability of ACTION: Notice. technical difficulties and cannot contact this action to a particular entity, consult you for clarification, EPA may not be the person listed under FOR FURTHER SUMMARY: This notice announces the able to consider your comment. INFORMATION CONTACT. initial filing of a pesticide petition Electronic files should avoid the use of proposing the establishment of special characters, any form of B. What Should I Consider as I Prepare regulations for residues of pesticide encryption, and be free of any defects or My Comments for EPA? chemicals in or on various commodities. viruses. 1. Submitting CBI. Do not submit this DATES: Comments must be received on Docket: All documents in the docket information to EPA through or before December 1, 2006. are listed in the docket index. Although regulations.gov or e-mail. Clearly mark listed in the index, some information is ADDRESSES: Submit your comments, the part or all of the information that identified by docket identification (ID) not publicly available, e.g., CBI or other you claim to be CBI. For CBI number EPA–HQ–OPP–2006–0783 and information whose disclosure is information in a disk or CD ROM that pesticide petition number (PP) 6G7091, restricted by statute. Certain other you mail to EPA, mark the outside of the by one of the following methods: material, such as copyrighted material, disk or CD ROM as CBI and then • Federal eRulemaking Portal: http:// is not placed on the Internet and will be identify electronically within the disk or www.regulations.gov. Follow the on-line publicly available only in hard copy CD ROM the specific information that is instructions for submitting comments. form. Publicly available docket claimed as CBI. In addition to one • Mail: Office of Pesticide Programs materials are available either in the complete version of the comment that (OPP) Regulatory Public Docket (7502P), electronic docket at http:// includes information claimed as CBI, a Environmental Protection Agency, 1200 www.regulations.gov, or, if only copy of the comment that does not Pennsylvania Ave., NW., Washington, available in hard copy, at the OPP contain the information claimed as CBI DC 20460–0001. Regulatory Public Docket in Rm. S-4400, must be submitted for inclusion in the • Delivery: OPP Regulatory Public One Potomac Yard (South Building), public docket. Information so marked Docket (7502P), Environmental 2777 S. Crystal Drive, Arlington, VA. will not be disclosed except in Protection Agency, Rm. S-4400, One The hours of operation of this Docket accordance with procedures set forth in Potomac Yard (South Building), 2777 S. Facility are from 8:30 a.m. to 4 p.m., 40 CFR part 2. Crystal Drive, Arlington, VA. Deliveries Monday through Friday, excluding legal 2. Tips for preparing your comments. are only accepted during the Docket’s holidays. The Docket telephone number When submitting comments, remember normal hours of operation (8:30 a.m. to is (703) 305–5805. to: i. Identify the document by docket 4 p.m., Monday through Friday, FOR FURTHER INFORMATION CONTACT: number and other identifying excluding legal holidays). Special Alan Reynolds, Biopesticides and information (subject heading, Federal arrangements should be made for Pollution Prevention Division (7511P), Office of Pesticide Programs, Register date and page number). deliveries of boxed information. The ii. Follow directions. The Agency may Docket telephone number is (703) 305– Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, ask you to respond to specific questions 5805. or organize comments by referencing a Instructions: Direct your comments to DC 20460–0001; telephone number: (703) 605–0515; fax number: (703) 308– Code of Federal Regulations (CFR) part docket ID number EPA–HQ–OPP–2006– or section number. 0783. EPA’s policy is that all comments 7026; e-mail address: [email protected]. iii. Explain why you agree or disagree; received will be included in the docket suggest alternatives and substitute without change and may be made SUPPLEMENTARY INFORMATION: language for your requested changes. available on-line at http:// I. General Information iv. Describe any assumptions and www.regulations.gov, including any provide any technical information and/ personal information provided, unless A. Does this Action Apply to Me? or data that you used. the comment includes information You may be potentially affected by v. If you estimate potential costs or claimed to be Confidential Business this action if you are an agricultural burdens, explain how you arrived at Information (CBI) or other information producer, food manufacturer, or your estimate in sufficient detail to whose disclosure is restricted by statute. pesticide manufacturer. Potentially allow for it to be reproduced. Do not submit information that you affected entities may include, but are vi. Provide specific examples to consider to be CBI or otherwise not limited to: illustrate your concerns, and suggest protected through regulations.gov or e- • Crop production (NAICS code 111). alternatives. mail. The Federal regulations.gov Web • Animal production (NAICS code vii. Explain your views as clearly as site is an ‘‘anonymous access’’ system, 112). possible, avoiding the use of profanity which means EPA will not know your • Food manufacturing (NAICS code or personal threats. identity or contact information unless 311). viii. Make sure to submit your you provide it in the body of your • Pesticide manufacturing (NAICS comments by the comment period comment. If you send an e-mail code 32532). deadline identified.
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II. What Action is the Agency Taking? ENVIRONMENTAL PROTECTION whose disclosure is restricted by statute. EPA is printing a summary of a AGENCY Do not submit information that you consider to be CBI or otherwise pesticide petition received under [Docket # EPA–RO4–SFUND–2006–0865; section 408 of the Federal Food, Drug, FRL–8237–1] protected through www.regulations.gov and Cosmetic Act (FFDCA), 21 U.S.C. or e-mail. The www.regulations.gov Web 346a, proposing the establishment or Constitution Road Drum Site, Atlanta, site is an ‘‘anonymous access’’ system, amendment of regulations in 40 CFR Dekalb County, Georgia; Notice of which means EPA will not know your part 180 for residues of pesticide Settlement identity or contact information unless chemicals in or on various food you provide it in the body of your AGENCY: Environmental Protection comment. If you send an e-mail commodities. EPA has determined that Agency (EPA). this pesticide petition contains data or comment directly to EPA without going information regarding the elements set ACTION: Notice of settlement. through www.regulations.gov your e- forth in FFDCA section 408(d)(2); SUMMARY: Under section 122 (h) of the mail address will be automatically however, EPA has not fully evaluated Comprehensive Environmental captured and included as part of the the sufficiency of the submitted data at Response, Compensation and Liability comment that is placed in the public this time or whether the data support Act (CERCLA), the United States docket and made available on the granting of the pesticide petition. Environmental Protection Agency has Internet. If you submit an electronic Additional data may be needed before entered into a settlement for comment, EPA recommends that you EPA rules on this pesticide petition. reimbursement of past response costs include your name and other contact Pursuant to 40 CFR 180.7(f), a concerning the Constitution Road Drum information in the body of your summary of the petition included in this Superfund Site located in Atlanta, comment and with any disk or CD–ROM notice, prepared by the petitioner along Dekalb County, Georgia. you submit. If EPA cannot read your with a description of the analytical DATES: The Agency will consider public comment due to technical difficulties method available for the detection and comments on the past cost portion of and cannot contact you for clarification, measurement of the pesticide chemical the settlement until December 1, 2006. EPA may not be able to consider your residues is available on EPA’s Electronic The Agency will consider all comments comment. Electronic files should avoid Docket at http://www.regulations.gov. received and may modify or withdraw To locate this information on the home the use of special characters, any form its consent to the settlement if page of EPA’s Electronic Docket, select of encryption, and be free of any defects comments received disclose facts or ‘‘Quick Search’’ and type the OPP or viruses. For additional information considerations which indicate that the docket ID number. Once the search has about EPA’s public docket visit the EPA settlement is inappropriate, improper, located the docket, clicking on the Docket Center homepage at http:// or inadequate. ‘‘Docket ID’’ will bring up a list of all www.epa.gov/epahome/dockets.htm documents in the docket for the ADDRESSES: Copies of the amended Docket: All documents in the docket pesticide including the petition portion of the settlement are available are listed in the www.regulations.gov summary. from Ms. Paula V. Batchelor. Submit index. Although listed in the index, your comments, identified by Docket ID some information is not publicly III. New Exemption from Tolerance No. EPA–RO4–SFUND–2006–0865 or available, e.g., CBI or other information 1. PP 6G7091. Syngenta Seeds, Inc., Site name Constitution Road Drum Superfund Site by one of the following whose disclosure is restricted by statute. P.O. Box 12257, Research Triangle Park, Certain other material, such as NC 27709, proposes to establish a methods: copyrighted material, will be publicly temporary exemption from the • www.regulations.gov: Follow the available only in hard copy. Publicly requirement of a tolerance for residues on-line instructions for submitting available docket materials are available of the plant-incorporated protectant, comments. Bacillus thuringiensis Vip3A protein • E-mail: [email protected]. either electronically in and the genetic material necessary for • Fax: 404/562–8842/Attn: Paula V. www.regulations.gov or in hard copy at its production in corn, in or on all corn Batchelor. the U.S. EPA Region 4 office located at commodities. The petition includes a Mail: Ms. Paula V. Batchelor, U.S. 61 Forsyth Street, SW., Atlanta, Georgia reference to a description of the EPA Region 4, WMD–SEIMB, 61 Forsyth 30303. Regional office is open from 7 analytical methods available to EPA for Street, SW., Atlanta, Georgia 30303. ‘‘In a.m. until 6:30 p.m. Monday through the detection and measurement of the addition, please mail a copy of your Friday, excluding legal holidays. pesticide chemical residues or an comments on the information collection Written comments may be submitted explanation of why no such method is provisions to the Office of Information to Ms. Batchelor within 30 calendar needed. and Regulatory Affairs, Office of days of the date of this publication. Management and Budget (OMB), Attn: List of Subjects Desk Officer for EPA, 725 17th St. NW., FOR FURTHER INFORMATION CONTACT: Environmental protection, Washington, DC 20503.’’ Paula V. Batchelor at 404/562–8887. Agricultural commodities, Feed Instructions: Direct your comments to Dated: October 16, 2006. Docket ID No. EPA–RO4–SFUND–2006– additives, Food additives, Pesticides Greg Armstrong, and pests, Reporting and recordkeeping 0865. EPA’s policy is that all comments requirements. received will be included in the public Acting Chief, Superfund Enforcement & Information Management Branch, Superfund Dated: October 3, 2006. docket without change and may be made available online at Division. Janet L. Andersen, www.regulations.gov, including any [FR Doc. E6–18374 Filed 10–31–06; 8:45 am] Director, Biopesticides and Pollution personal information provided, unless BILLING CODE 6560–50–P Prevention Division. the comment includes information [FR Doc. E6–18425 Filed 10–31–06; 8:45 am] claimed to be Confidential Business BILLING CODE 6560–50–S Information (CBI) or other information
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ENVIRONMENTAL PROTECTION whose disclosure is restricted by statute. ENVIRONMENTAL PROTECTION AGENCY Do not submit information that you AGENCY consider to be CBI or otherwise [Docket # EPA–RO4–SFUND–2006–0865; [Docket # EPA–RO4–SFUND–2006–0819; FRL–8237–5] protected through http:// FRL–8237–6] www.regulations.gov or e-mail. The Constitution Road Drum Site, Atlanta, http://www.regulations.gov Web site is DSI Facility Superfund Site, Biloxi, Dekalb County, GA; Notice of an ‘‘anonymous access’’ system, which Harrison County, Mississippi; Notice of Settlement means EPA will not know your identity Settlement or contact information unless you AGENCY: Environmental Protection AGENCY: Environmental Protection provide it in the body of your comment. Agency (EPA). Agency (EPA). If you send an e-mail comment directly ACTION: Notice of settlement. to EPA without going through http:// ACTION: Notice of settlement. SUMMARY: Under section 122(h) of the www.regulations.gov your e-mail SUMMARY: Under section 122 (h)(1) of Comprehensive Environmental address will be automatically captured the Comprehensive Environmental Response, Compensation and Liability and included as part of the comment Response, Compensation and Liability Act (CERCLA), the United States that is placed in the public docket and Act (CERCLA), the United States Environmental Protection Agency has made available on the Internet. If you Environmental Protection Agency has entered into a settlement for submit an electronic comment, EPA entered into a settlement for reimbursement of past response costs recommends that you include your reimbursement of past response costs concerning the Constitution Road Drum name and other contact information in concerning the DSI Facility Superfund Superfund Site located in Atlanta, the body of your comment and with any Site located in Biloxi, Harrison County, Dekalb County, Georgia. disk or CD–ROM you submit. If EPA Mississippi. DATES: The Agency will consider public cannot read your comment due to DATES: The Agency will consider public comments on the past cost portion of technical difficulties and cannot contact comments on the settlement until the settlement until December 1, 2006. you for clarification, EPA may not be December 1, 2006. The Agency will The Agency will consider all comments able to consider your comment. consider all comments received and received and may modify or withdraw Electronic files should avoid the use of may modify or withdraw its consent to its consent to the settlement if special characters, any form of the amended portion of the settlement if comments received disclose facts or encryption, and be free of any defects or comments received disclose facts or considerations which indicate that the viruses. For additional information considerations which indicate that the settlement is inappropriate, improper, about EPA’s public docket visit the EPA settlement is inappropriate, improper, or inadequate. Docket Center homepage at http:// or inadequate. ADDRESSES: Copies of the amended www.epa.gov/epahome/dockets.htm. ADDRESSES: Copies of the amended portion of the settlement are available Docket: All documents in the docket portion of the settlement are available from Ms. Paula V. Batchelor. Submit are listed in the http:// from Ms. Paula V. Batchelor. Submit your comments, identified by Docket ID your comments, identified by Docket ID www.regulations.gov index. Although No. EPA–RO4–SFUND–2006–0865 or No. EPA–RO4–SFUND–2006–0819 or listed in the index, some information is Site name Constitution Road Drum Site name DSI Facility Superfund Site Superfund Site by one of the following not publicly available, e.g., CBI or other by one of the following methods: methods: information whose disclosure is • www.regulations.gov: Follow the • http://www.regulations.gov: Follow restricted by statute. Certain other on-line instructions for submitting the on-line instructions for submitting material, such as copyrighted material, comments. comments. will be publicly available only in hard • E-mail: [email protected]. • E-mail: [email protected]. copy. Publicly available docket • Fax: 404/562–8842/Attn: Paula V. • Fax: 404/562–8842/Attn: Paula V. materials are available either Batchelor. Batchelor electronically in http:// Mail: Ms. Paula V. Batchelor, U.S. Mail: Ms. Paula V. Batchelor, U.S. www.regulations.gov or in hard copy at EPA Region 4, WMD–SEIMB, 61 Forsyth EPA Region 4, WMD–SEIMB, 61 Forsyth the U.S. EPA Region 4 office located at Street, SW., Atlanta, Georgia 30303. ‘‘In Street, SW., Atlanta, Georgia 30303. ‘‘In 61 Forsyth Street, SW., Atlanta, Georgia addition, please mail a copy of your addition, please mail a copy of your 30303. Regional office is open from 7 comments on the information collection comments on the information collection a.m. until 6:30 p.m. Monday through provisions to the Office of Information provisions to the Office of Information Friday, excluding legal holidays. and Regulatory Affairs, Office of and Regulatory Affairs, Office of Written comments may be submitted to Management and Budget (OMB), Attn: Management and Budget (OMB), Attn: Ms. Batchelor within 30 calendar days Desk Officer for EPA, 725 17th St. NW., Desk Officer for EPA, 725 17th St. NW., of the date of this publication. Washington, DC 20503.’’ Washington, DC 20503.’’ Instructions: Direct your comments to Instructions: Direct your comments to FOR FURTHER INFORMATION CONTACT: Docket ID No. EPA–R04–SFUND–2006– Docket ID No. EPA–R04–SFUND–2006– Paula V. Batchelor at 404/562–8887. 0819. EPA’s policy is that all comments 0865. EPA’s policy is that all comments Dated: October 16, 2006. received will be included in the public received will be included in the public Greg Armstrong, docket without change and may be docket without change and may be made available online at Acting Chief, Superfund Enforcement & made available online at http:// www.regulations.gov, including any Information Management Branch, Superfund www.regulations.gov, including any Division. personal information provided, unless personal information provided, unless the comment includes information [FR Doc. E6–18382 Filed 10–31–06; 8:45 am] the comment includes information claimed to be Confidential Business claimed to be Confidential Business BILLING CODE 6560–50–P Information (CBI) or other information Information (CBI) or other information whose disclosure is restricted by statute.
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Do not submit information that you ENVIRONMENTAL PROTECTION Comments should reference the consider to be CBI or otherwise AGENCY ‘‘Modena Yard Superfund Site, Proposed Agreement for Recovery of protected through www.regulations.gov [FRL–8236–7] or e-mail. The www.regulations.gov Web Response Costs’’ and ‘‘EPA Docket No. site is an ‘‘anonymous access’’ system, Notice of Agreement for Recovery of CERCLA–03–2006–0082,’’ and should which means EPA will not know your Response Costs Pursuant to Section be forwarded to Robert S. Hasson at the identity or contact information unless 122(H) of the Comprehensive above address. you provide it in the body of your Environmental Response, FOR FURTHER INFORMATION CONTACT: comment. If you send an e-mail Compensation and Liability Act of Robert S. Hasson (3RC41), U.S. comment directly to EPA without going 1980, as Amended Environmental Protection Agency, 1650 through www.regulations.gov your e- Arch Street, Philadelphia, PA 19103, AGENCY: Environmental Protection mail address will be automatically Phone: (215) 814–2672. Agency. captured and included as part of the Dated: October 23, 2006. ACTION: Notice; request for public comment that is placed in the public William T. Wisniewski, comment. docket and made available on the Deputy Regional Administrator, Region III. Internet. If you submit an electronic SUMMARY: In accordance with the [FR Doc. E6–18408 Filed 10–31–06; 8:45 am] comment, EPA recommends that you Comprehensive Environmental BILLING CODE 6560–50–P include your name and other contact Response, Compensation, and Liability information in the body of your Act of 1980, as amended, (‘‘CERCLA’’), comment and with any disk or CD–ROM notice is hereby given that a proposed ENVIRONMENTAL PROTECTION you submit. If EPA cannot read your agreement for recovery of response costs AGENCY comment due to technical difficulties (‘‘Proposed Agreement’’) associated [Docket # EPA–RO4–SFUND–2006–0864; and cannot contact you for clarification, with the Modena Yard Superfund Site, FRL–8237–4] EPA may not be able to consider your Modena Borough and East Fallowfield comment. Electronic files should avoid Township, Chester County, Rosso Property Scrapyard Site, Dover, the use of special characters, any form Pennsylvania was executed by the Craven County, NC; Notice of of encryption, and be free of any defects Environmental Protection Agency Settlement (‘‘EPA’’) and is now subject to public or viruses. For additional information AGENCY: Environmental Protection comment, after which EPA may modify about EPA’s public docket visit the EPA Agency (EPA). or withdraw its consent if comments Docket Center homepage at http:// ACTION: Notice of Settlement. www.epa.gov/epahome/dockets.htm. received disclose facts or considerations which indicate that the Proposed Docket: All documents in the docket SUMMARY: Under section 122(h)(1) of the Agreement is inappropriate, improper, Comprehensive Environmental are listed in the www.regulations.gov or inadequate. The Proposed Agreement index. Although listed in the index, Response, Compensation and Liability would resolve certain potential EPA Act (CERCLA), the United States some information is not publicly claims under section 107 of CERCLA, Environmental Protection Agency has available, e.g., CBI or other information against Connell Limited Partnership entered into a settlement for whose disclosure is restricted by statute. (‘‘Settling Party’’). The Proposed reimbursement of past response costs Certain other material, such as Agreement would require the Settling concerning the Constitution Road Drum copyrighted material, will be publicly Party to, among other things, reimburse Superfund Site located in Atlanta, De available only in hard copy. Publicly EPA $150,000 for response costs, Kalb County, Georgia. available docket materials are available including, but not limited to, removal DATES: The Agency will consider public oversight costs, incurred and to be either electronically in comments on the settlement until incurred at the Site. www.regulations.gov or in hard copy at December 1, 2006. The Agency will For thirty (30) days following the date the U.S. EPA Region 4 office located at consider all comments received and of publication of this notice, the Agency 61 Forsyth Street, SW., Atlanta, Georgia may modify or withdraw its consent to will receive written comments relating 30303. Regional office is open from 7 the settlement if comments received to the Proposed Agreement. The a.m. until 6:30 p.m.. Monday through disclose facts or considerations which Agency’s response to any comments Friday, excluding legal holidays. indicate that the settlement is received will be available for public inappropriate, improper, or inadequate. Written comments may be submitted inspection at the U.S. Environmental to Ms. Batchelor within 30 calendar Protection Agency, Region III, 1650 ADDRESSES: Copies of the amended days of the date of this publication. Arch Street, Philadelphia, PA 19103. portion of the settlement are available from Ms. Paula V. Batchelor. Submit DATES: FOR FURTHER INFORMATION CONTACT: Comments must be submitted on your comments, identified by Docket ID Paula V. Batchelor at 404/562–8887. or before December 1, 2006. No. EPA–RO4–SFUND–2006–0864 or Dated: September 22, 2006. ADDRESSES: The Proposed Agreement Site name Rosso Property Scrapyard and additional background information Rosalind H. Brown, Superfund Site by one of the following relating to the Proposed Agreement are Chief, Superfund Enforcement & Information methods: available for public inspection at the • http://www.regulations.gov: Follow Management Branch, Waste Management U.S. Environmental Protection Agency, Division. the on-line instructions for submitting Region III, 1650 Arch Street, comments. [FR Doc. E6–18381 Filed 10–31–06; 8:45 am] Philadelphia, PA 19103. A copy of the • E-mail: [email protected]. BILLING CODE 6560–50–P Proposed Agreement may be obtained • Fax: 404/562–8842/Attn: Paula V. from Robert S. Hasson (3RC41), Batchelor. Assistant Regional Counsel, U.S. Mail: Ms. Paula V. Batchelor, U.S. Environmental Protection Agency, 1650 EPA Region 4, WMD–SEIMB, 61 Forsyth Arch Street, Philadelphia, PA 19103. Street, SW., Atlanta, Georgia 30303. ‘‘In
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addition, please mail a copy of your Written comments may be submitted Management and Budget (OMB), Attn: comments on the information collection to Ms. Batchelor within 30 calendar Desk Officer for EPA, 725 17th St. NW., provisions to the Office of Information days of the date of this publication. Washington, DC 20503.’’ and Regulatory Affairs, Office of FOR FURTHER INFORMATION CONTACT: Instructions: Direct your comments to Management and Budget (OMB), Attn: Paula V. Batchelor at 404/562–8887. Docket ID No. EPA–R04–SFUND–2006– Desk Officer for EPA, 725 17th St. NW., 0818. EPA’s policy is that all comments Dated: October 16, 2006. Washington, DC 20503.’’ received will be included in the public Instructions: Direct your comments to Greg Armstrong, docket without change and may be Docket ID No. EPA–R04–SFUND–2006– Acting Chief, Superfund Enforcement & made available online at 0864. EPA’s policy is that all comments Information Management Branch, Superfund www.regulations.gov, including any Division. received will be included in the public personal information provided, unless docket without change and may be [FR Doc. E6–18383 Filed 10–31–06; 8:45 am] the comment includes information made available online at http:// BILLING CODE 6560–50–P claimed to be Confidential Business www.regulations.gov, including any Information (CBI) or other information personal information provided, unless whose disclosure is restricted by statute. the comment includes information ENVIRONMENTAL PROTECTION AGENCY Do not submit information that you claimed to be Confidential Business consider to be CBI or otherwise Information (CBI) or other information [Docket # EPA–RO4–SFUND–2006–0818; protected through www.regulations.gov whose disclosure is restricted by statute. FRL–8237–3] or e-mail. The www.regulations.gov Web Do not submit information that you site is an ‘‘anonymous access’’ system, consider to be CBI or otherwise Second Melts Acid Spill Superfund which means EPA will not know your protected through http:// Site, Lithonia, Dekalb County, GA; identity or contact information unless www.regulations.gov or e-mail. The Notice of Settlement you provide it in the body of your http://www.regulations.gov Web site is AGENCY: Environmental Protection comment. If you send an e-mail an ‘‘anonymous access’’ system, which Agency (EPA). comment directly to EPA without going means EPA will not know your identity ACTION: Notice of Settlement. through www.regulations.gov your e- or contact information unless you mail address will be automatically provide it in the body of your comment. SUMMARY: Under section 122(h)(1) of the captured and included as part of the If you send an e-mail comment directly Comprehensive Environmental comment that is placed in the public to EPA without going through http:// Response, Compensation and Liability docket and made available on the www.regulations.gov your e-mail Act (CERCLA), the United States Internet. If you submit an electronic address will be automatically captured Environmental Protection Agency has comment, EPA recommends that you and included as part of the comment entered into a settlement for include your name and other contact that is placed in the public docket and reimbursement of past response costs information in the body of your made available on the Internet. If you concerning the Second Melts Acid Spill comment and with any disk or CD–ROM submit an electronic comment, EPA Superfund Site located in Lithonia, you submit. If EPA cannot read your recommends that you include your Dekalb County, Georgia. comment due to technical difficulties name and other contact information in DATES: The Agency will consider public and cannot contact you for clarification, the body of your comment and with any EPA may not be able to consider your disk or CD–ROM you submit. If EPA comments on the settlement until comment. Electronic files should avoid cannot read your comment due to December 1, 2006. The Agency will the use of special characters, any form technical difficulties and cannot contact consider all comments received and of encryption, and be free of any defects you for clarification, EPA may not be may modify or withdraw its consent to or viruses. For additional information able to consider your comment. the amended portion of the settlement if about EPA’s public docket visit the EPA Electronic files should avoid the use of comments received disclose facts or Docket Center homepage at http:// special characters, any form of considerations which indicate that the www.epa.gov/epahome/dockets.htm. encryption, and be free of any defects or settlement is inappropriate, improper, Docket: All documents in the docket viruses. For additional information or inadequate. are listed in the www.regulations.gov about EPA’s public docket visit the EPA ADDRESSES: Copies of the amended Docket Center homepage at http:// portion of the settlement are available index. Although listed in the index, www.epa.gov/epahome/dockets.htm. from Ms. Paula V. Batchelor. Submit some information is not publicly Docket: All documents in the docket your comments, identified by Docket ID available, e.g., CBI or other information are listed in the http:// No. EPA–RO4–SFUND–2006–0818 or whose disclosure is restricted by statute. www.regulations.gov index. Although Site name Second Melts Acid Spill Certain other material, such as listed in the index, some information is Superfund Site by one of the following copyrighted material, will be publicly not publicly available, e.g., CBI or other methods: available only in hard copy. Publicly information whose disclosure is • http://www.regulations.gov: Follow available docket materials are available restricted by statute. Certain other the on-line instructions for submitting either electronically in material, such as copyrighted material, comments. www.regulations.gov or in hard copy at will be publicly available only in hard • E-mail: [email protected]. the U.S. EPA Region 4 office located at copy. Publicly available docket • Fax: 404/562–8842/Attn: Paula V. 61 Forsyth Street, SW., Atlanta, Georgia materials are available either Batchelor. 30303. Regional office is open from 7 electronically in http:// Mail: Ms. Paula V. Batchelor, U.S. a.m. until 6:30 p.m. Monday through www.regulations.gov or in hard copy at EPA Region 4, WMD–SEIMB, 61 Forsyth Friday, excluding legal holidays. the U.S. EPA Region 4 office located at Street, SW., Atlanta, Georgia 30303. ‘‘In Written comments may be submitted 61 Forsyth Street, SW., Atlanta, Georgia addition, please mail a copy of your to Ms. Batchelor within 30 calendar 30303. Regional office is open from 7 comments on the information collection days of the date of this publication. a.m. until 6:30 p.m. Monday through provisions to the Office of Information FOR FURTHER INFORMATION CONTACT: Friday, excluding legal holidays. and Regulatory Affairs, Office of Paula V. Batchelor at 404/562–8887.
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Dated: September 22, 2006. received will be included in the public Dated: October 16, 2006. Rosalind H. Brown, docket without change and may be Greg Armstrong, Chief, Superfund Enforcement & Information made available online at Acting Chief, Superfund Enforcement & Management Branch, Waste Management www.regulations.gov, including any Information Management Branch, Superfund Division. personal information provided, unless Division. [FR Doc. E6–18397 Filed 10–31–06; 8:45 am] the comment includes information [FR Doc. E6–18400 Filed 10–31–06; 8:45 am] BILLING CODE 6560–50–P claimed to be Confidential Business BILLING CODE 6560–50–P Information (CBI) or other information whose disclosure is restricted by statute. ENVIRONMENTAL PROTECTION Do not submit information that you FEDERAL COMMUNICATIONS AGENCY consider to be CBI or otherwise COMMISSION [Docket # EPA–RO4–SFUND–2006–0866; protected through www.regulations.gov FRL–8237–2] or e-mail. The www.regulations.gov Web Notice of Public Information Collection(s) Being Reviewed by the site is an ‘‘anonymous access’’ system, Tindall Property Superfund Site, Federal Communications Commission which means EPA will not know your Lawrenceburg, Anderson County, KY; for Extension Under Delegated identity or contact information unless Notice of Settlement Authority you provide it in the body of your AGENCY: Environmental Protection comment. If you send an e-mail October 20, 2006. Agency (EPA). comment directly to EPA without going SUMMARY: The Federal Communications ACTION: Notice of Settlement. through www.regulations.gov your e- Commission, as part of its continuing mail address will be automatically effort to reduce paperwork burden SUMMARY: Under section 122(h)(1) of the captured and included as part of the invites the general public and other Comprehensive Environmental comment that is placed in the public Federal agencies to take this Response, Compensation and Liability docket and made available on the opportunity to comment on the Act (CERCLA), the United States Internet. If you submit an electronic following information collection(s), as Environmental Protection Agency has comment, EPA recommends that you required by the Paperwork Reduction entered into a settlement for include your name and other contact Act (PRA) of 1995, Public Law 104–13. reimbursement of past response costs information in the body of your An agency may not conduct or sponsor concerning the Tindall Property comment and with any disk or CD–ROM a collection of information unless it Superfund Site located in you submit. If EPA cannot read your displays a currently valid control Lawrenceburg, Anderson County, number. No person shall be subject to Kentucky. comment due to technical difficulties and cannot contact you for clarification, any penalty for failing to comply with a collection of information subject to the DATES: The Agency will consider public EPA may not be able to consider your Paperwork Reduction Act that does not comments on the settlement until comment. Electronic files should avoid display a valid control number. December 1, 2006. The Agency will the use of special characters, any form consider all comments received and Comments are requested concerning (a) of encryption, and be free of any defects Whether the proposed collection of may modify or withdraw its consent to or viruses. For additional information the settlement if comments received information is necessary for the proper about EPA’s public docket visit the EPA disclose facts or considerations which performance of the functions of the Docket Center homepage at http:// indicate that the settlement is Commission, including whether the inappropriate, improper, or inadequate. www.epa.gov/epahome/dockets.htm. information shall have practical utility; ADDRESSES: Copies of the amended Docket: All documents in the docket (b) the accuracy of the Commission’s portion of the settlement are available are listed in the www.regulations.gov burden estimate; (c) ways to enhance from Ms. Paula V. Batchelor. Submit index. Although listed in the index, the quality, utility, and clarity of the your comments, identified by Docket ID some information is not publicly information collected; and (d) ways to No. EPA–RO4–SFUND–2006–0866 or available, e.g., CBI or other information minimize the burden of the collection of Site name Tindall Property Superfund whose disclosure is restricted by statute. information on the respondents, Site by one of the following methods: Certain other material, such as including the use of automated • http://www.regulations.gov: Follow copyrighted material, will be publicly collection techniques or other forms of the on-line instructions for submitting available only in hard copy. Publicly information technology. comments. available docket materials are available DATES: Written Paperwork Reduction • E-mail: [email protected]. either electronically in Act (PRA) comments should be • Fax: 404/562–8842/Attn: Paula V. www.regulations.gov or in hard copy at submitted on or before January 2, 2007. Batchelor. the U.S. EPA Region 4 office located at If you anticipate that you will be Mail: Ms. Paula V. Batchelor, U.S. 61 Forsyth Street, SW., Atlanta, Georgia submitting comments, but find it EPA Region 4, WMD–SEIMB, 61 Forsyth 30303. Regional office is open from 7 difficult to do so within the period of time allowed by this notice, you should Street, SW., Atlanta, Georgia 30303. ‘‘In a.m. until 6:30 p.m. Monday through advise the contact listed below as soon addition, please mail a copy of your Friday, excluding legal holidays. comments on the information collection as possible. provisions to the Office of Information Written comments may be submitted ADDRESSES: You may submit your and Regulatory Affairs, Office of to Ms. Batchelor within 30 calendar Paperwork Reduction Act (PRA) Management and Budget (OMB), Attn: days of the date of this publication. comments by e-mail or U.S. postal mail. Desk Officer for EPA, 725 17th St. NW., FOR FURTHER INFORMATION CONTACT: To submit your comments by e-mail Washington, DC 20503.’’ Paula V. Batchelor at 404/562–8887. send them to [email protected]. To submit Instructions: Direct your comments to your comments by U.S. mail, mark them Docket ID No. EPA–R04–SFUND–2006– to the attention of Cathy Williams, 0866. EPA’s policy is that all comments Federal Communications Commission,
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Room 1–C823, 445 12th Street, SW., FEDERAL COMMUNICATIONS Title: Terrain Shielding Policy. Washington, DC 20554. COMMISSION Form Number: Not applicable. Type of Review: Extension of a FOR FURTHER INFORMATION CONTACT: For Notice of Public Information currently approved collection. additional information about the Collection(s) Being Reviewed by the Respondents: Business or other for- information collection(s) send an e-mail Federal Communications Commission profit entities; Not-for-profit to [email protected] or contact Cathy for Extension Under Delegated institutions; State, Local or Tribal Williams at (202) 418–2918. Authority Government. SUPPLEMENTARY INFORMATION: Number of Respondents: 50. October 20, 2006. Estimated Time per Response: 10 OMB Control Number: 3060–1038. SUMMARY: The Federal Communications hours. Title: Digital Television Transition Commission, as part of its continuing Frequency of Response: One occasion Information Questionnaires. effort to reduce paperwork burden reporting requirement; Third party invites the general public and other Form Number: Not applicable. disclosure requirement. Federal agencies to take this Total Annual Burden: 500 hours. Type of Review: Extension of a opportunity to comment on the Total Annual Cost: $7,500. currently approved collection. following information collection(s), as Privacy Impact Assessment: No Respondents: Business or other for- required by the Paperwork Reduction impact(s). profit entities. Act (PRA) of 1995, Public Law 104–13. Needs and Uses: The terrain shielding An agency may not conduct or sponsor Number of Respondents: 844. policy requires respondents to submit a collection of information unless it either a detailed terrain study, or to Estimated Time per Response: 4 to 24 displays a currently valid control submit letters of assent from all hours. number. No person shall be subject to potentially affected parties and graphic Frequency of Response: One-time any penalty for failing to comply with depiction of the terrain when reporting requirement. a collection of information subject to the intervening terrain prevents a low Paperwork Reduction Act that does not Total Annual Burden: 4,823 hours. power television applicant from display a valid control number. interfering with other low power Total Annual Cost: $251,400. Comments are requested concerning (a) television or full-power television Privacy Impact Assessment: No whether the proposed collection of stations. FCC staff use the data to impact(s). information is necessary for the proper determine if terrain shielding can Needs and Uses: In the performance of the functions of the provide adequate interference Telecommunications Act of 1996, Commission, including whether the protection and if a waiver of 47 CFR information shall have practical utility; Congress directed that every broadcaster 74.705 and 47 CFR 74.707 of the rules (b) the accuracy of the Commission’s be given a second channel for digital is warranted. burden estimate; (c) ways to enhance operations. Subsequently, the Digital the quality, utility, and clarity of the Federal Communications Commission. Television Transition and Public Safety information collected; and (d) ways to Marlene H. Dortch, Act of 2005 established February 17, minimize the burden of the collection of Secretary. 2009 as the date certain for the end of information on the respondents, [FR Doc. E6–18072 Filed 10–31–06; 8:45 am] analog broadcasts by television including the use of automated BILLING CODE 6712–10–P licensees. At the end of the transition, collection techniques or other forms of broadcasters’ analog channels will be information technology. returned to the government and the FEDERAL COMMUNICATIONS DATES: Written Paperwork Reduction broadcast spectrum will contract from COMMISSION channels 2–69 to channels 2–51. This Act (PRA) comments should be 108 MHz of spectrum (channels 52–69) submitted on or before January 2, 2007. Public Information Collections can then be used by advanced wireless If you anticipate that you will be Approved by Office of Management services and public safety authorities. submitting comments, but find it and Budget There are several key building blocks to difficult to do so within the period of a successful transition. First, content— time allowed by this notice, you should October 24, 2006. advise the contact listed below as soon consumers must perceive something SUMMARY: The Federal Communications as possible. significantly different than what they Commission (Commission) has received have in analog. Second, distribution— ADDRESSES: You may submit your all Office of Management and Budget the content must be delivered to Paperwork Reduction Act (PRA) (OMB) approval for the following public consumers in a simple and convenient comments by e-mail or U.S. postal mail. information collections pursuant to the way. Third, equipment—equipment To submit your comments by e-mail Paperwork Reduction Act of 1995, must be capable, affordable and send them to [email protected]. To submit Public Law 104–13. An agency may not consumer-friendly. And fourth, your comments by U.S. mail, mark them conduct or sponsor and a person is not education—consumers must be to the attention of Cathy Williams, required to respond to a collection of educated about what digital television Federal Communications Commission, information unless it displays a is, and what it can do for them. These Room 1–C823, 445 12th Street, SW., currently valid control number. information requests are designed to Washington, DC 20554. FOR FURTHER INFORMATION CONTACT: Paul gather data in these key areas. FOR FURTHER INFORMATION CONTACT: For J. Laurenzano, Federal Communications additional information about the Commission, 445 12th Street, SW., Federal Communications Commission. information collection(s) send an e-mail Washington, DC 20554, (202) 418–1359 Marlene H. Dortch, to [email protected] or contact Cathy or via the Internet at [email protected]. Secretary. Williams at (202) 418–2918. SUPPLEMENTARY INFORMATION: [FR Doc. E6–18047 Filed 10–31–06; 8:45 am] SUPPLEMENTARY INFORMATION: OMB Control No.: 3060–0681. BILLING CODE 6712–10–P OMB Control Number: 3060–0414. OMB Approval Date: 10/13/2006.
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Expiration Date: 10/31/2009. OMB Control No.: 3060–0943. collection techniques or other forms of Title: Sections 52.103, Lag Times and OMB Approval Date: 10/16/2006. information technology. Expiration Date: 10/31/2009. 52.105, Warehousing (Toll-Free Service DATES: Written Paperwork Reduction Title: Section 54.809, Carrier Access Codes, CC Docket No. 95–155, Act (PRA) comments should be 47 CFR Part 52, Subpart D). Certification. Form No.: N/A. submitted on or before January 2, 2007. Form No.: N/A. If you anticipate that you will be Estimated Annual Burden: 300 Estimated Annual Burden: 572 submitting comments, but find it responses; 4,500 total annual burden responses; 858 total annual burden difficult to do so within the period of hours. hours. Needs and Uses: Responsible Needs and Uses: Section 54.809 of the time allowed by this notice, you should organizations (RespOrgs) who wish to Commission’s rules requires each price advise the contact listed below as soon make a specific toll free number cap or competitive LEC that wishes to as possible. unavailable, must submit written receive universal support to file an ADDRESSES: You may submit your requests to DSMI, the toll free data annual certification with the Universal Paperwork Reduction Act (PRA) administrator. The request shall include Service Administrative Company and comments by e-mail or U.S. postal mail. documentation outlining the reason for the Commission. The certification must To submit your comments by e-mail the request. The information is state that the carrier will use its send them to [email protected]. To submit necessary to hold RespOrgs more interstate access universal service your comments by U.S. mail, mark them accountable and decreases abuses of lag support only for the provision, to the attention of Cathy Williams, time process. It prevents numbers from maintenance, and upgrading of facilities Federal Communications Commission, being held in unavailable status without and service for which the support is Room 1–C823, 445 12th Street, SW., demonstrated reasons and makes more intended. Washington, DC 20554. numbers available for subscribers who Federal Communications Commission. FOR FURTHER INFORMATION CONTACT: For need and want them. Marlene H. Dortch, additional information about the OMB Control No.: 3060–0723. Secretary. information collection(s) send an e-mail OMB Approval date: 10/05/2006. [FR Doc. E6–18170 Filed 10–31–06; 8:45 am] to [email protected] or contact Cathy Expiration Date: 10/31/2009. BILLING CODE 6712–01–P Williams at (202) 418–2918. Title: Public Disclosure of Network SUPPLEMENTARY INFORMATION: Information by Bell Operating OMB Control Number: 3060–0346. Companies. FEDERAL COMMUNICATIONS Form No.: N/A. COMMISSION Title: Section 78.27, License Estimated Annual Burden: 3 Conditions. responses; 360 total annual burden Notice of Public Information Form Number: Not applicable. hours. Collection(s) Being Reviewed by the Type of Review: Extension of a Needs and Uses: Bell Operating Federal Communications Commission currently approved collection. Companies must make public disclosure for Extension Under Delegated Respondents: Business or other for- of network information. This prevents Authority profit entities; Not-for-profit them from designing new network institutions. October 25, 2006. services or changing network technical Number of Respondents: 50. SUMMARY: The Federal Communications specifications to the advantage of their Estimated Time per Response: 10 own payphones. Commission, as part of its continuing effort to reduce paperwork burden minutes (0.1666 hrs.). OMB Control No.: 3060–0790. Frequency of Response: Annual OMB Approval date: 10/05/2006. invites the general public and other Federal agencies to take this reporting requirement; On occasion Expiration Date: 10/31/2009. reporting requirement. Title: Section 68.110(c)—Availability opportunity to comment on the of Inside Wiring Information. following information collection(s), as Total Annual Burden: 8 hours. Form No.: N/A. required by the Paperwork Reduction Total Annual Cost: None. Estimated Annual Burden: 1,200 Act (PRA) of 1995, Public Law 104–13. Privacy Impact Assessment: No responses; 1,200 total annual burden An agency may not conduct or sponsor impact(s). hours. a collection of information unless it Needs and Uses: 47 CFR 78.27(b)(1) Needs and Uses: 47 CFR 68.110(c) displays a currently valid control requires the licensee of a Cable requires telephone companies to number. No person shall be subject to Television Relay Service (CARS) station provide building owners with all any penalty for failing to comply with to notify the Commission in writing available information regarding carrier a collection of information subject to the when the station commences operation. installed wiring on the customer’s side Paperwork Reduction Act that does not Such notification shall be submitted on of the demarcation point, including display a valid control number. or before the last day of the authorized copies of existing schematic diagrams Comments are requested concerning (a) one year construction period; otherwise, and service records. The information Whether the proposed collection of the station license shall be must be provided by the telephone information is necessary for the proper automatically forfeited. 47 CFR company upon request of the building performance of the functions of the 78.27(b)(2) requires CARS licensees owner or agent thereof. The information Commission, including whether the needing additional time to complete is needed so that building owners may information shall have practical utility; construction of the station and choose to contract with an installer of (b) the accuracy of the Commission’s commence operation shall request an their choice for inside wiring burden estimate; (c) ways to enhance extension of time 30 days before the maintenance and installation service, or the quality, utility, and clarity of the expiration of the one year construction elect to contract with the telephone information collected; and (d) ways to period. Exceptions to the 30-day company to modify existing wiring or minimize the burden of the collection of advance filing requirement may be assist with the installation of additional information on the respondents, granted where unanticipated delays inside wiring. including the use of automated occur.
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Federal Communications Commission. comments by e-mail send them to: within two years of authorization. CDR William F. Caton, [email protected]. If you would like to is a milestone for satellite services and Deputy Secretary. obtain or view a copy of this permits the Commission to more closely [FR Doc. E6–18290 Filed 10–31–06; 8:45 am] information collection after the 60 day monitor system construction. Without BILLING CODE 6712–01–P comment period, you may do so by such information, the Commission visiting the FCC PRA Web page at: could not determine whether satellite http://www.fcc.gov/omd/pra. licensees are operating in conformance FEDERAL COMMUNICATIONS FOR FURTHER INFORMATION CONTACT: For with the Commission’s rules. COMMISSION additional information about the OMB Control No.: 3060–0994. information collection(s) send an e-mail Title: Flexibility for Delivery of Notice of Public Information to [email protected] or contact Judith B. Communications by Mobile Satellite Collection(s) Being Reviewed by the Herman at 202–418–0214. Service (MSS) Providers in the 2 GHz Federal Communications Commission SUPPLEMENTARY INFORMATION: Band, the L-Band, and the 1.6/2.4 GHz for Extension Under Delegated Band. Authority OMB Control No.: 3060–0955. Title: 2 GHz Mobile Satellite Service Form No.: N/A. October 24, 2006. Reports. Type of Review: Extension of a SUMMARY: The Federal Communications Form No.: N/A. currently approved collection. Commission, as part of its continuing Type of Review: Extension of a Respondents: Business or other for- effort to reduce paperwork burden currently approved collection. profit. invites the general public and other Respondents: Business or other for- Number of Respondents: 161. Federal agencies to take this profit. Estimated Time Per Response: .50—50 opportunity to comment on the Number of Respondents: 9. hours. following information collection(s), as Estimated Time Per Response: 3 Frequency of Response: On occasion, required by the Paperwork Reduction hours. annual, and one-time reporting Act of 1995, Public Law 104–13. An Frequency of Response: On occasion requirements, recordkeeping agency may not conduct or sponsor a and annual reporting requirements and requirement and third party disclosure collection of information unless it recordkeeping requirement. requirement. displays a currently valid control Total Annual Burden: 27 hours. Total Annual Burden: 1,326 hours. number. No person shall be subject to Annual Cost Burden: $18,000. Annual Cost Burden: $158,000. any penalty for failing to comply with Privacy Act Impact Assessment: N/A. Privacy Act Impact Assessment: N/A. a collection of information subject to the Needs and Uses: This collection will Needs and Uses: This collection will Paperwork Reduction Act (PRA) that be submitted as an extension (no change be submitted as an extension (no change does not display a valid control number. in reporting requirements) after this 60 in reporting requirements) after this 60 Comments are requested concerning (a) day comment period to Office of day comment period to Office of whether the proposed collection of Management and Budget (OMB) in order Management and Budget (OMB) in order information is necessary for the proper to obtain the full three year clearance. to obtain the full three year clearance. performance of the functions of the There is no change in respondents or There is no change in respondents or Commission, including whether the burden hours/costs. burden hours/costs. information shall have practical utility; The 2 GHz mobile satellite service On February 5, 2003, the Federal (b) the accuracy of the Commission’s (MSS) rules are contained in 47 CFR Communications Commission burden estimate; (c) ways to enhance part 25 of the Federal Communications (‘‘Commission’’) released a Report and the quality, utility, and clarity of the Commission’s (‘‘Commission’’) rules. If Order (R&O) and Notice of Proposed information collected; and (d) ways to planned post-mission disposal involves Rulemaking (NPRM), in IB Docket Nos. minimize the burden of the collection of atmospheric re-entry of spacecraft, 2 01–185 and 02–364, FCC 03–15. The information on the respondents, GHz MSS licensees are required to R&O permitted Mobile Satellite Service including the use of automated disclose such information in the form of (MSS) providers to integrate ancillary collection techniques or other forms of a narrative statement, through terrestrial components (ATCs) into their information technology. amendments to applications or letters of MSS networks. The benefits of MSS DATES: Persons wishing to comment on intent, or orbital debris mitigation providers integrating ATCs into their this information collection should design and operational strategies. MSS networks are to: (1) Increase the submit comments January 2, 2007. If Additionally, the rules require that 2 efficiency of spectrum use through MSS you anticipate that you will be GHz MSS licensees submit a casualty network integration and terrestrial reuse submitting comments, but find it risk assessment to the Commission. This and permit better coverage in areas that difficult to do so within the period of requirement permits the Commission MSS providers could not otherwise time allowed by this notice, you should and the public to comment on each serve; (2) reduce costs, eliminate advise the contact listed below as soon system’s design. Two GHz mobile efficiencies and enhance operational as possible. satellite systems receiving expansion ability in MSS systems; (3) provide ADDRESSES: Direct all PRA comments to spectrum as part of the rural and additional communications that may Allison E. Zaleski, Office of unserved areas spectrum incentive must enhance public protection; and (4) Management and Budget (OMB), Room provide a report on the actual number strengthen competition in the markets 10236 NEOB, Washington, DC 20503, of subscriber minutes originating or served by MSS. (202) 395–6466, or via fax at 202–395– terminating in unserved areas as a The decisions adopted in the R&O 5167, or via the Internet at percentage of the actual U.S. system use. resulted in the implementation of [email protected] and to This rule permits the Commission to information collection requirements that [email protected], Federal verify that service is being provided in are necessary to facilitate the Communications Commission (FCC), rural unserved areas. In addition, Commission’s rules addressed in Parts 2 Room 1–B441, 445 12th Street, SW., system proponents will have to and 25. The purposes of the information Washington, DC 20554. To submit your complete critical design review (CDR) collection are for the Commission to
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license commercial satellite services in Frequency of Response: On occasion, Form No.: FCC Form 420–IB. the United States; obtain the legal and annual, and other reporting Type of Review: Extension of a technical information required to requirements. currently approved collection. facilitate the integration of ATCs into Total Annual Burden: 240 hours. Respondents: Business or other for- MSS networks in the 2 GHz Band, the Annual Cost Burden: $62,000. profit. L-Band, and the 1.6/2.4 GHz Bands; and Privacy Act Impact Assessment: N/A. Number of Respondents: 10 to ensure that the licensees meet the Needs and Uses: This collection will respondents; 160 responses. Commission’s legal and technical be submitted as an extension (no change Estimated Time Per Response: 16 requirements to develop and maintain in reporting requirements) after this 60 hours. MSS networks while conserving limited day comment period to Office of Frequency of Response: On occasion, spectrum for other telecommunications Management and Budget (OMB) in order annual, and other reporting services. Without this collection of to obtain the full three year clearance. requirements. Total Annual Burden: 160 hours. information, the Commission would not There is no change in respondents or burden hours/costs. Annual Cost Burden: $44,000. have the necessary information to grant Privacy Act Impact Assessment: N/A. The Commission’s proposed the entities the authority to operate or Needs and Uses: This collection will development of FCC Form 423–IB to provide their services to consumers. be submitted as an extension (no change facilitate the Commission’s goal to OMB Control No.: 3060–1054. in reporting requirements) after this 60 implement electronic filing of the form Title: Application for Renewal of an day comment period to Office of and to accommodate any changes to the International Broadcast Station License. Management and Budget (OMB) in order form in the future. International Form No.: FCC Form 422–IB. to obtain the full three year clearance. broadcasters will file the FCC Form Type of Review: Extension of a There is no change in respondents or 423–IB in lieu of FCC Form 308. The currently approved collection. burden hours/costs. implementation of this proposal is Respondents: Business or other for- The Commission’s proposed the contingent upon the receipt of budget profit. development of FCC Form 420–IB to funds and the availability of technical Number of Respondents: 10 facilitate the Commission’s goal to staff. respondents; 60 responses. implement electronic filing of the form Estimated Time Per Response: 6 OMB Control No.: 3060–1056. and to accommodate any changes to the hours. Title: Application for an International form in the future. International Frequency of Response: On occasion, Broadcast Station License. broadcasters will file the FCC Form annual, and other reporting Form No.: FCC Form 421–IB. 420–IB in lieu of FCC Form 309. The requirements. Type of Review: Extension of a implementation of this proposal is Total Annual Burden: 60 hours. currently approved collection. contingent upon the receipt of budget Annual Cost Burden: $32,000. Respondents: Business or other for- funds and the availability of technical Privacy Act Impact Assessment: N/A. profit. staff. If the Commission did not collect Number of Respondents: 10 Needs and Uses: This collection will this information, it would not be in a respondents; 120 responses. be submitted as an extension (no change position to effectively coordinate Estimated Time Per Response: 12 in reporting requirements) after this 60 spectrum for international broadcasters hours. day comment period to Office of or to act for entities in times of Frequency of Response: On occasion, frequency interference or adverse Management and Budget (OMB) in order annual, and other reporting to obtain the full three year clearance. propagation conditions. The orderly requirements. nature of the provision of international There is no change in respondents or Total Annual Burden: 120 hours. burden hours/costs. broadcast service would be in jeopardy Annual Cost Burden: $36,000. without the Commission’s involvement. The Commission’s proposed the Privacy Act Impact Assessment: N/A. development of FCC Form 422–IB to Needs and Uses: This collection will Federal Communications Commission. facilitate the Commission’s goal to be submitted as an extension (no change Marlene H. Dortch, implement electronic filing of the form in reporting requirements) after this 60 Secretary. and to accommodate any changes to the day comment period to Office of [FR Doc. E6–18297 Filed 10–31–06; 8:45 am] form in the future. International Management and Budget (OMB) in order BILLING CODE 6712–01–P broadcasters will file the FCC Form to obtain the full three year clearance. 422–IB in lieu of FCC Form 311. The There is no change in respondents or implementation of this proposal is burden hours/costs. FEDERAL COMMUNICATIONS contingent upon the receipt of budget The Commission’s proposed the COMMISSION funds and the availability of technical development of FCC Form 421–IB to staff. facilitate the Commission’s goal to Notice of Public Information Collection(s) Being Submitted for OMB Control No.: 3060–1055. implement electronic filing of the form Review to the Office of Management Title: Application for Permit to and to accommodate any changes to the and Budget Deliver Programs to Foreign Broadcast form in the future. International Stations. broadcasters will file the FCC Form October 24, 2006. Form No.: FCC Form 423–IB. 421–IB in lieu of FCC Form 310. The SUMMARY: The Federal Communications Type of Review: Extension of a implementation of this proposal is Commission, as part of its continuing currently approved collection. contingent upon the receipt of budget effort to reduce paperwork burden Respondents: Business or other for- funds and the availability of technical invites the general public and other profit. staff. Federal agencies to take this Number of Respondents: 30 OMB Control No.: 3060–1057. opportunity to comment on the respondents; 240 responses. Title: Application for Authority to following information collection(s), as Estimated Time Per Response: 8 hours Construct or Make Changes in an required by the Paperwork Reduction (average). International Broadcast Station. Act (PRA) of 1995, Public Law 104–13.
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An agency may not conduct or sponsor Frequency of Response: On occasion FOR FURTHER INFORMATION CONTACT: a collection of information unless it and other (every ten year) reporting Alexander Roytblat, FCC International displays a currently valid control requirements, third party disclosure Bureau, Strategic Analysis and number. No person shall be subject to requirements and recordkeeping Negotiations Division, at (202) 418– any penalty for failing to comply with requirement. 7501. a collection of information subject to the Total Annual Burden: 219,505 hours. SUPPLEMENTARY INFORMATION: The Paperwork Reduction Act (PRA) that Total Annual Cost: $50,144,000. Federal Communications Commission does not display a valid control number. Privacy Act Impact Assessment: Yes. (FCC) established the WRC–07 Advisory Comments are requested concerning (a) Needs and Uses: The Commission Committee to provide advice, technical whether the proposed collection of will submit this information collection support and recommendations relating information is necessary for the proper to OMB as an extension (no change in to the preparation of United States performance of the functions of the reporting, recordkeeping or third party proposals and positions for the 2007 Commission, including whether the requirements) after this 60 day comment World Radiocommunication Conference information shall have practical utility; period to obtain the full three-year (WRC–07). (b) the accuracy of the Commission’s clearance from them. There is no change In accordance with the Federal burden estimate; (c) ways to enhance to the estimated average burden or the Advisory Committee Act, Public Law the quality, utility, and clarity of the number of respondents. 92–463, as amended, this notice advises information collected; and (d) ways to FCC Form 601 is a consolidated, interested persons of the eleventh minimize the burden of the collection of multi-part application or ‘‘long form’’ meeting of the WRC–07 Advisory information on the respondents, application for market-based licensing Committee. The WRC–07 Advisory including the use of automated and site-by-site licensing in the Wireless Committee has an open membership. collection techniques or other forms of Telecommunications Bureau’s (WTB’s) All interested parties are invited to information technology. Radio Services’ Universal Licensing participate in the Advisory Committee DATES: Written Paperwork Reduction System (ULS). The information is used and to attend its meetings. The Act (PRA) comments should be by the Commission to determine proposed agenda for the eleventh submitted on or before January 2, 2007. whether the applicant is legally, meeting is as follows: technically and financially qualified to If you anticipate that you will be Agenda submitting PRA comments, but find it be licensed. difficult to do so within the period of Federal Communications Commission. Eleventh Meeting of the WRC–07 time allowed by this notice, you should William F. Caton, Advisory Committee, Federal advise the FCC contact listed below as Deputy Secretary. Communications Commission, 445 12th soon as possible. [FR Doc. E6–18301 Filed 10–31–06; 8:45 am] Street, SW., Room TW–C305, Washington, DC 20554 ADDRESSES: Direct all PRA comments to BILLING CODE 6712–01–P Allison E. Zaleski, Office of December 13, 2006; 11 a.m.–12 noon Management and Budget, Room 10236 1. Opening Remarks. NEOB, Washington, DC 20503, (202) FEDERAL COMMUNICATIONS 2. Approval of Agenda. 395–6466, or via fax at 202–395–5167 or COMMISSION 3. Approval of the Minutes of the Tenth via internet at _ _ [DA 06–2094] Meeting. Allison E. [email protected] and to 4. Status of Preliminary Views and Draft Judith-B. [email protected], Federal Eleventh Meeting of the Advisory Proposals. Communications Commission, Room 1– Committee for the 2007 World 5. Reports on Recent WRC–07 B441, 445 12th Street, SW., DC 20554 or Radiocommunication Conference Preparatory Meetings. an e-mail to [email protected]. If you would (WRC–07 Advisory Committee) 6. NTIA Draft Preliminary Views and like to obtain or view a copy of this Proposals. information collection after the 60 day AGENCY: Federal Communications 7. Informal Working Group Reports and comment period, you may do so by Commission. Documents relating to: visiting the FCC PRA Web page at: ACTION: Notice. a. Consensus Views and Issues http://www.fcc.gov/omd/pra. Papers. SUMMARY: In accordance with the FOR FURTHER INFORMATION CONTACT: For b. Draft Proposals. Federal Advisory Committee Act, this additional information or copies of the 8. Future Meetings. notice advises interested persons that information collection(s), contact Judith 9. Other Business. the eleventh meeting of the WRC–07 B. Herman at 202–418–0214 or via the Federal Communications Commission. Advisory Committee will be held on Internet at [email protected]. Roderick K. Porter, December 13, 2006, at the Federal SUPPLEMENTARY INFORMATION: Communications Commission. The Deputy Bureau Chief, International Bureau. OMB Control Number: 3060–0798. purpose of the meeting is to continue [FR Doc. E6–18284 Filed 10–31–06; 8:45 am] Title: FCC Application for Wireless preparations for the 2007 World BILLING CODE 6712–01–P Telecommunications Bureau Radio Radiocommunication Conference. The Service Authorization. Advisory Committee will consider any Form No.: FCC Form 601. FEDERAL COMMUNICATIONS preliminary views and draft proposals Type of Review: Extension of a COMMISSION introduced by the Advisory Committee’s currently approved collection. Respondents: Individuals or Informal Working Groups. [DA 06–2059] households; not-for-profit institutions; DATES: December 13, 2006; 11 a.m.–12 noon. Announcement of Change of Venue for business or other for-profit; and State, November 3rd Consumer Advisory ADDRESSES: local or tribal governments. Federal Communications Committee Meeting Number of Respondents: 215,920. Commission, 445 12th Street, SW., Estimated Time per Response: 1.25 Room TW–C305, Washington, DC AGENCY: Federal Communications hours. 20554. Commission.
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ACTION: Notice. SW., Washington, DC 20554. The FEDERAL COMMUNICATIONS Committee meeting will be open to the COMMISSIONS SUMMARY: This document announces a public and interested persons may change in venue for the November 3, attend the meeting and communicate Technological Advisory Council 2006 meeting of the Consumer Advisory their views. Members of the public will Meeting Postponed Committee (‘‘Committee’’). The purpose have an opportunity to address the of the Committee is to make Committee on issues of interest to both AGENCY: Federal Communications recommendations to the Federal them and the Committee. The meeting Commission. Communications Commission site is fully accessible to people using (‘‘Commission’’) regarding consumer ACTION: Notice of postponement of wheelchairs or other mobility aids. public meeting. issues within the jurisdiction of the Meeting agendas and handouts will be Commission and to facilitate the provided in accessible formats; sign SUMMARY: In accordance with the participation of all consumers in language interpreters, open captioning, proceedings before the Commission. Federal Advisory Committee Act, 5 and assistive listening devices will be U.S.C. App. 2, Public Law 92–463, as DATES: The meeting of the Consumer provided on site. amended, this notice advises interested Advisory Committee will take place on A copy of the October 19, 2006 Public persons that the meeting of the Friday, November 3, 2006 from 9 a.m to Notice is available in alternate formats Technological Advisory Council 4 p.m. (Braille, cassette tape, large print or scheduled for October 25, 2006 has been ADDRESSES: Verizon Communications, diskette) upon request. It is also posted postponed. A new date will be Inc., 1320 North Courthouse Rd., on the Commission’s Web site at announced. Arlington, VA, rooms Forum I and II. www.fcc.gov/cgb/cac. If the public has FOR FURTHER INFORMATION CONTACT: any written comments for the FOR FURTHER INFORMATION CONTACT: Scott Marshall, (202) 418–2809 (voice), Committee, please submit them to the Julius Knapp at 202–418–2468, TTY (202) 418–0179 (TTY) or e-mail: Committee’s Designated Federal Officer, 202–418–2989, or e-mail [email protected]. Scott Marshall, Federal [email protected]. SUPPLEMENTARY INFORMATION: This is a Communications Commission, Room 5– Federal Communications Commission. summary of the Commission’s Public A824, 445 12th Street, SW., Marlene H. Dortch, Notice, DA 06–2059, released on Washington, DC 20554. Secretary. October 25, 2006, announcing a change Contact the Commission to request [FR Doc. E6–18065 Filed 10–31–06; 8:45 am] in venue for the meeting of its other reasonable accommodations for BILLING CODE 6712–01–P Consumer Advisory Committee. The people with disabilities as early as original date, time and agenda of the possible. Please include a detailed Committee’s meeting was announced description of any accommodations you FEDERAL COMMUNICATIONS via Public Notice released on October seek and a way in which you can be COMMISSION 12, 2006 (DA 06–1998), as published in contacted in case further information is the Federal Register at 71 FR 61470 needed by sending an e-mail to: Sunshine Act Meeting; Open (October 18, 2006). This change of [email protected] or call the Consumer Commission Meeting Friday, venue was necessary because of and Governmental Affairs Bureau at November 3, 2006 unforeseen circumstances which made (202) 418–0530 (voice), or (202) 418– October 27, 2006. adequate meeting facilities at the 0432 (TTY). Commission’s headquarters building The Federal Communications unavailable. Federal Communications Commission. Commission will hold an Open Meeting A transcript of the meeting and Monica S. Desai, on the subjects listed below on Friday, minutes of the meeting will be available Chief, Consumer and Governmental Affairs November 3, 2006, which is scheduled for public inspection at the Bureau. to commence at 9:30 a.m. in Room TW– Commission’s headquarters building [FR Doc. E6–18287 Filed 10–31–06; 8:45 am] C305, at 445 12th Street, SW., located at Portals II, 445 12th Street, BILLING CODE 6712–01–P Washington, DC.
Item No. Bureau Subject
1 Media ...... Title: Revision of Procedures Governing Amendments to FM Table of Allotments and Changes of Community of License in the Radio Broadcast Services (MB Docket No. 05–210). Summary: The Commission will consider a Report and Order regarding changes to the process for community of license changes and the process for amendments to the FM Table of Allotments. 2 Wireless Telecommunications...... Title: In the Matter of the Effects of Communications Towers on Migratory Birds (WT Docket No. 03–187). Summary: The Commission will consider a Notice of Proposed Rulemaking on whether it should adopt certain measures to mitigate migratory bird collisions with communications towers. 3 Wireline Competition...... Title: United Power Line Council’s Petition for Declaratory Ruling Regarding the Classifica- tion of Broadband over Power Line Internet Access Service as an Information Service (WC Docket No. 06–10). Summary: The Commission will consider a Memorandum Opinion and Order concerning the classification of broadband over power line Internet access service. 4 Wireline Competition...... Title: AT&T Inc. and BellSouth Corporation Application for Transfer of Control (WC Docket No. 06–74).
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Item No. Bureau Subject
Summary: The Commission will consider a Memorandum Opinion and Order regarding the transfer of control application of AT&T and BellSouth.
Open captioning will be provided for 20573, within ten days of the date this Filing Party: Wayne R. Rohde, Esq.; this event. Other reasonable notice appears in the Federal Register. Sher & Blackwell LLP; 1850 M Street, accommodations for people with Copies of agreements are available NW.; Suite 900; Washington, DC 20036. disabilities are available upon request. through the Commission’s Office of Synopsis: The amendment expands Include a description of the Agreements (202–523–5793 or the scope of the agreement to the East accommodation you will need including [email protected]). Coast of the United States, reduces as much detail as you can. Also include Agreement No.: 011284–060. ESL’s allocation of space on the service a way we can contact you if we need Title: Ocean Carrier Equipment presently operated under the agreement, more information. Make your request as Management Association Agreement. and provides ESL with space on Zim’s early as possible; please allow at least 5 Parties: APL Co. Pte. Ltd.; American U.S. East Coast service in the agreement days advance notice. Last minute President Lines, Ltd.; A.P. Moller- trade. requests will be accepted, but may be Maersk A/S; CMA CGM, S.A.; Agreement No.: 011976. impossible to fill. Send an e-mail to: Companhia Libra de Navegacao; Title: CSAV/NYK Chile Space Charter [email protected] or call the Consumer & Compania Sudamericana de Vapores, Agreement. Governmental Affairs Bureau at 202– S.A.; COSCO Containerlines Company Parties: Compania Sud Americana de 418–0530 (voice), 202–418–0432 (tty). Limited; Crowley Maritime Corporation; Vapores S.A. and Nippon Yusen Kaisha. Additional information concerning Evergreen Marine Corp. (Taiwan) Ltd.; Filing Party: Wayne R. Rohde, Esq.; this meeting may be obtained from Hamburg-Su¨ d; Hapag-Lloyd AG; Hapag- Sher & Blackwell LLP; 1850 M Street, Audrey Spivack or David Fiske, Office Lloyd USA LLC; Hanjin Shipping Co., NW., Suite 900; Washington, DC 20036. of Media Relations, (202) 418–0500; Ltd.; Hyundai Merchant Marine Co. Synopsis: The agreement would TTY 1–888–835–5322. Audio/Video Ltd.; Kawasaki Kisen Kaisha, Ltd.; authorize CSAV to charter space to NYK coverage of the meeting will be Mitsui O.S.K. Lines Ltd.; Montemar for the carriage of motor vehicles from broadcast live with open captioning Maritima S.A.; Nippon Yusen Kaisha Baltimore to ports in Chile. Line; Norasia Container Lines Limited; over the Internet from the FCC’s Audio/ Agreement No.: 011977. Orient Overseas Container Line Limited; Video Events Web page at www.fcc.gov/ Title: COSCON/WHL Space Charter and Yang Ming Marine Transport Corp. realaudio. Agreement. Filing Party: Jeffrey F. Lawrence, Esq.; For a fee this meeting can be viewed Parties: COSCO Container Lines and Donald J. Kassilke, Esq.; Sher & live over George Mason University’s Company, Limited and Wan Hai Lines Blackwell LLP; 1850 M Street, NW., Capitol Connection. The Capitol Ltd. Connection also will carry the meeting Suite 900; Washington, DC 20036. Synopsis: The amendment removes Filing Party: Robert B. Yoshitomi, live via the Internet. To purchase these Esq.; Nixon Peabody LLP; 2040 Main services call (703) 993–3100 or go to Australia-New Zealand Direct Line, Contship Containerlines, and CP Ships Street, Suite 850; Irvine, CA 92614. www.capitolconnection.gmu.edu. Synopsis: The agreement authorizes Copies of materials adopted at this (USA) LLC as parties to the agreement; adds Companhia Libra de Navegacao, COSCO to charter space to Wan Hai in meeting can be purchased from the the trade between the U.S. West Coast, FCC’s duplicating contractor, Best Copy Montemar Maritima S.A., and Norasia Container Lines Limited as parties; on the one hand, and China and Japan, and Printing, Inc. (202) 488–5300; Fax on the other. (202) 488–5563; TTY (202) 488–5562. reflects Hapag-Lloyd’s new corporate These copies are available in paper names; and updates addresses for Dated: October 27, 2006. format and alternative media, including Hamburg-Su¨ d and Yang Ming. Bryant L. VanBrakle, large print/type; digital disk; and audio Agreement No.: 011922–001. Secretary. and video tape. Best Copy and Printing, Title: TNWA/GA Cooperative [FR Doc. E6–18386 Filed 10–31–06; 8:45 am] Inc. may be reached by e-mail at Working Agreement. BILLING CODE 6730–01–P [email protected]. Parties: APL Co. Pte. Ltd.; American President Lines, Ltd.; Hyundai Federal Communications Commission. Merchant Marine Co., Ltd.; Mitsui FEDERAL MARITIME COMMISSION Marlene H. Dortch, O.S.K. Lines, Ltd.; Hapag-Lloyd AG; Secretary. Nippon Yusen Kaisha; Orient Overseas Ocean Transportation Intermediary [FR Doc. 06–9023 Filed 10–30–06; 11:57 am] Container Line Limited; Orient Overseas License Revocations BILLING CODE 6712–01–P Container Line Inc.; and Orient Overseas Container Line (Europe) The Federal Maritime Commission Limited. hereby gives notice that the following Ocean Transportation Intermediary FEDERAL MARITIME COMMISSION Filing Party: Wayne R. Rohde, Esq.; Sher & Blackwell LLP; 1850 M Street licenses have been revoked pursuant to Notice of Agreements Filed NW.; Suite 900; Washington, DC 20036. section 19 of the Shipping Act of 1984 Synopsis: The amendment updates (46 U.S.C. chapter 409) and the The Commission hereby gives notice Hapag-Lloyd’s corporate name. regulations of the Commission of the filing of the following agreements Agreement No.: 011959–002. pertaining to the licensing of Ocean under the Shipping Act of 1984. Title: Zim/ESL Agreement. Transportation Intermediaries, 46 CFR Interested parties may submit comments Parties: Zim Integrated Shipping part 515, effective on the corresponding on agreements to the Secretary, Federal Services, Ltd. and Emirates Shipping date shown below: Maritime Commission, Washington, DC Line FZE. License Number: 016835F.
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Name: DCM Logistics, Inc. Date Revoked: October 19, 2006. (Qualifying Individual). Joaquin Roa, Address: 3710 Atlanta Industrial Reason: Failed to maintain a valid Vice President. Parkway, NW., Atlanta, GA 30331. bond. Grove Shipping, 2102 Harrison Avenue, Date Revoked: October 15, 2006. Bronx, NY 10453. Whitfield Nicholas, Reason: Failed to maintain a valid Sandra L. Kusumoto, Sole Proprietor. bond. Director, Bureau of Certification and License Number: 017926F. Licensing. Nick’s International Shipping, Inc., 1841 Name: GQ Logistics, Inc. [FR Doc. E6–18385 Filed 10–31–06; 8:45 am] Carter Avenue, Bronx, NY 10457. Address: 11222 La Cienega Blvd., Ste. BILLING CODE 6730–01–P Officer: Olimpia Sandoval, President 510, Inglewood, CA 90304. (Qualifying Individual). Date Revoked: October 20, 2006. Worldwide Freight Logistics, Inc., 8562 FEDERAL MARITIME COMMISSION Reason: Failed to maintain a valid NW. 70th Street, Miami, FL 33166. bond. Ocean Transportation Intermediary Officers: Heriberto Sanchez, President License Number: 019790N. License Applicants (Qualifying Individual). Roxana Name: K.C. Consulting, Inc. Sanchez, Secretary. Address: 36565 Nathan Hale Drive, Notice is hereby given that the Dated: October 27, 2006. Lake Villa, IL 60046. following applicants have filed with the Date Revoked: October 20, 2006. Federal Maritime Commission an Bryant L. VanBrakle, Reason: Failed to maintain a valid application for license as a Non-Vessel- Secretary. bond. Operating Common Carrier and Ocean [FR Doc. E6–18388 Filed 10–31–06; 8:45 am] License Number: 001229F. Freight Forwarder—Ocean BILLING CODE 6730–01–P Name: M&H Brokerage, Inc. Transportation Intermediary pursuant to Address: 3399 NW. 72nd Avenue, section 19 of the Shipping Act of 1984 Suite 218, Miami, FL 33152. as amended (46 U.S.C. app. 1718 and 46 Date Revoked: October 15, 2006. CFR part 515). FEDERAL RESERVE SYSTEM Reason: Failed to maintain a valid Persons knowing of any reason why bond. the following applicants should not Change in Bank Control Notices; License Number : 018977F. receive a license are requested to Acquisition of Shares of Bank or Bank Name: Alas Cargo LLC. contact the Office of Transportation Holding Companies Address: 548 E. Sepulveda Blvd., Intermediaries, Federal Maritime Suite D, Carson, CA 90745. Commission, Washington, DC 20573. The notificants listed below have applied under the Change in Bank Date Revoked: October 20, 2006. Non-Vessel-Operating Common Carrier Control Act (12 U.S.C. 1817(j)) and Reason: Failed to maintain a valid Ocean Transportation Intermediary bond. Applicants § 225.41 of the Board’s Regulation Y (12 License Number: 015708N. CFR 225.41) to acquire a bank or bank Name: Blue Moon Express Limited. Zenus (USA) Logistics LLC., 231 holding company. The factors that are Address: Rm. 1901, 19/F, C C Wu Blossom Lane, West Palm Beach, FL considered in acting on the notices are Bldg., 302–308, Hennessy Road, 33404. Officer: Warren Jeffery, set forth in paragraph 7 of the Act (12 Wanchai, Hong Kong. Managing Member (Qualifying U.S.C. 1817(j)(7)). Individual). Date Revoked: October 18, 2006. The notices are available for Reason: Failed to maintain a valid Non-Vessel-Operating Common Carrier immediate inspection at the Federal bond. and Ocean Freight Forwarder Reserve Bank indicated. The notices License Number: 015457N. Transportation Intermediary also will be available for inspection at Name: Direct Forwarding Co., Inc. Applicants the office of the Board of Governors. Address: 16905 Keegan Avenue, Gamma International Logistics, Inc., dba Interested persons may express their Carson, CA 90746. Liberty LCL Line, 9700 NW 17th views in writing to the Reserve Bank Date Revoked: October 8, 2006. Street, Miami, FL 33126. Officers: indicated for that notice or to the offices Reason: Failed to maintain a valid Daniel Brian Savage, President of the Board of Governors. Comments bond. (Qualifying Individual). Darryl Von must be received not later than License Number: 003961F. Geusau, Director. November 16, 2006. Name: Ford Freight Forwarders, Inc. Fast Logistics, Inc., 3350 SW 3rd Address: 8081 NW. 67th Street, A. Federal Reserve Bank of Kansas Avenue, Suite 207, Fort Lauderdale, City (Donna J. Ward, Assistant Vice Miami, FL 33166. FL 33315. Officers: Luis Ceballos, Date Revoked: October 15, 2006. President) 925 Grand Avenue, Kansas President. Jose L. Ceballos, Manager City, Missouri 64198-0001: Reason: Failed to maintain a valid (Qualifying Individuals). bond. Talus Logistics LLC., 13101 North Enon 1. John H. Fowler and The Fowler License Number: 014455N. Church Road, Chester, VA 23836. Control Group, which consists of John Name: New World Sea & Air Co., Inc. Officers: Glenn R. Clark, V. P. Sales & H. Fowler, Topeka, Kansas; F. David Address: 615 East Alondra Blvd., Operations (Qualifying Individual). Fowler and Bette J. Fowler, both of Compton, CA 90220. David J. Adams, Chairman. Burlingame, Kansas; F. David Fowler, Date Revoked: October 8, 2006. Jr., Tyler, Texas; and Jean A. Watson, Reason: Failed to maintain a valid Ocean Freight Forwarder-Ocean McPherson, Kansas, to retain voting bond. Transportation Intermediary shares of Burlingame Bankshares, Inc., License Number: 016562F. Applicants and thereby indirectly retain voting Name: U.S. Brokers (BOS) Inc. Far International Corp., 10450 NW 41 shares of The First State Bank of Address: 840 Summer Street, 2nd Street, Miami, FL 33178. Officers: Burlingame, both of Burlingame, Floor, Boston, MA 02127. Maria Estela Roa, President Kansas.
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Board of Governors of the Federal Reserve of Bank of Tacoma (in organization), developing and using resources System, October 27, 2006. Tacoma, Washington. involving health information technology Jennifer J. Johnson, 2. Bank of Montreal, Montreal, (IT) and genetic and molecular Secretary of the Board. Canada, Harris Financial Corp., Chicago, medicine, with specific reference to [FR Doc. E6–18346 Filed 10–31–06; 8:45 am] Illinois, and Harris Bankcorp, Inc., incorporating these capacities in BILLING CODE 6210–01–S Chicago, Illinois; to acquire 100 percent evidence-based clinical practice, health of the voting shares of First National outcomes evaluations, and research. Bank & Trust, Kokomo, Indiana. DATES: Responses should be submitted FEDERAL RESERVE SYSTEM 3. QCR Holdings, Inc., Moline, to the Department of Health and Human Illinois; to acquire 100 percent of the Services on or before 5 p.m., EDT, Formations of, Acquisitions by, and voting shares of Ridgeland Bancorp, January 2, 2007. Mergers of Bank Holding Companies Inc., Tony, Wisconsin, and thereby ADDRESSES: Electronic responses are indirectly acquire voting shares of preferred and may be addressed to The companies listed in this notice Farmers State Bank, Ridgeland, [email protected]. Written responses have applied to the Board for approval, Wisconsin. pursuant to the Bank Holding Company should be addressed to Department of Act of 1956 (12 U.S.C. 1841 et seq.) Board of Governors of the Federal Reserve Health and Human Services, 200 System, October 27, 2006. (BHC Act), Regulation Y (12 CFR Part Independence Avenue, SW., Room 225), and all other applicable statutes Jennifer J. Johnson, 434E, Washington, DC 20201, Attention: and regulations to become a bank Secretary of the Board. Personalized Health Care RFI. holding company and/or to acquire the [FR Doc. E6–18347 Filed 10–31–06; 8:45 am] A copy of this RFI is also available on assets or the ownership of, control of, or BILLING CODE 6210–01–S the HHS Web site at http:// the power to vote shares of a bank or www.aspe.hhs.gov/PHC/rfi. Please bank holding company and all of the follow the instructions for submitting banks and nonbanking companies DEPARTMENT OF HEALTH AND responses. owned by the bank holding company, HUMAN SERVICES The submission of written materials including the companies listed below. in response to the RFI should not The applications listed below, as well Request for Information (RFI): exceed 75 pages, not including as other related filings required by the Improving Health and Accelerating appendices and supplemental Board, are available for immediate Personalized Health Care Through documents. Responders may submit inspection at the Federal Reserve Bank Health Information Technology and other forms of electronic materials to indicated. The application also will be Genomic Information in Population- demonstrate or exhibit key concepts of available for inspection at the offices of and Community-Based Health Care their written responses. the Board of Governors. Interested Delivery Systems Public Access: Responses to this RFI will be available to the public in the persons may express their views in AGENCY: Office of the Secretary, HHS Public Reading Room, 200 writing on the standards enumerated in Department of Health and Human Independence Avenue, SW., the BHC Act (12 U.S.C. 1842(c)). If the Services. Washington, DC 20201. Please call (202) proposal also involves the acquisition of ACTION: Notice. a nonbanking company, the review also 690–7453 between 9 a.m. and 5 p.m. to includes whether the acquisition of the SUMMARY: Advances in medicine, arrange access. The RFI and all nonbanking company complies with the biomedical science, and technology responses will also be made available on standards in section 4 of the BHC Act present opportunities for enabling the HHS Web site at http:// (12 U.S.C. 1843). Unless otherwise health care practices to be increasingly www.aspe.hhs.gov/PHC/rfi. Any noted, nonbanking activities will be patient-specific by taking into account information you submit will be made conducted throughout the United States. individual differences in health states, public. Additional information on all bank disease processes, and outcomes from Do not send proprietary, commercial, holding companies may be obtained interventions. Often referred to as financial, business confidential, trade from the National Information Center personalized health care, the desired secret, or personal information that Web site at http://www.ffiec.gov/nic/. impact of these types of health practices should not be made public. Unless otherwise noted, comments is improved effectiveness and safety of FOR FURTHER INFORMATION CONTACT: Dr. regarding each of these applications medical practices. These health benefits Gregory Downing, Personalized Health must be received at the Reserve Bank may be manifested through new Care Initiative, (202) 260–1911. indicated or the offices of the Board of approaches for predicting disease risk at SUPPLEMENTARY INFORMATION: Advances Governors not later than November 27, an early time point, enabling in medicine, biomedical science, and 2006. preemption of disease processes prior to technology present opportunities for A. Federal Reserve Bank of Chicago full manifestation of symptoms, enabling health care practices to be (Patrick M. Wilder, Assistant Vice analyzing the effectiveness of different increasingly patient-specific by taking President) 230 South LaSalle Street, interventions in specific populations into account individual differences in Chicago, Illinois 60690-1414: based on their genetic makeup, and health states, disease processes, and 1. Capitol Bancorp Ltd., Lansing, preventing the progression of disease outcomes from interventions. Often Michigan; to indirectly acquire 51 and the related complications. referred to as personalized health care, percent of the voting shares of Bank of For the purpose of achieving a the desired impact of these types of Tacoma (in organization), Tacoma, broader understanding of rapid changes health practices is improved Washington. occurring in the health care setting that effectiveness and safety of medical In connection with this Application, may have an impact on the future of practices. These health benefits may be Capitol Development Bancorp Limited personalized health care, the manifested through new approaches for VI, Lansing, Michigan, has applied to Department of Health and Human predicting disease risk at an early time become a bank holding company by Services (HHS) requests input from the point, enabling preemption of disease acquiring 51 percent of the voting shares public and private sectors on plans for processes prior to full manifestation of
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symptoms, analyzing the effectiveness relevant findings from multiple sources, • Anticipated applications of of different interventions in specific could greatly expand our capacity for genomic-based clinical testing in populations, and preventing the personalized health care, providing medical decision-making, safety progression of disease and the related more specific individual information for assessment, and risk management. complications. prevention, diagnosis, and treatment; • Establishment of biospecimen The application of interoperable pointing toward clinically useful resources obtained from clinical electronic information technologies (IT) markers; enabling safer and more medical services for application in in the health care setting provides new effective use of existing therapies; and research, clinical trials, health services opportunities to collect and analyze identifying potential fruitful areas for planning, clinical effectiveness, and information about diagnostic and development of new or refined health outcomes evaluations. therapeutic interventions, as well as therapies. • Organizational or institutional health care outcomes. With many New pathways are emerging for practices to address ethical, legal, and potential applications, integrated data affordable and more effective health social implications regarding the use of analysis of multiple parameters of care practices through personalized patient information, including genetic health care practices has the potential to health care. The ability to integrate new data, to support personalized health support new approaches to evaluating scientific knowledge, especially our care. health outcomes, developing the growing understanding of the human • Examples of utilizing large clinical evidence base for best practices, genome, into the health care setting in data repositories for practical clinical identifying individual differences in an efficient and timely fashion will rely research to discover effective response to therapies, supporting on robust, reliable and secure technologies, therapeutics, diagnostics, research on new interventions, information sources in electronically and prevention strategies for different automating the process of detecting and interoperable systems. Many public and populations. • reporting notifiable disease conditions private organizations are engaged in the Issues and challenges associated and health care-associated infections to planning for future collections and with incorporating genomic information public health surveillance systems, and integration of health data for this as a part of a broad longitudinal data enhancing safety. collection. purpose. This request seeks information • In the past year, the American Health that will facilitate a broader Needs for community-wide Information Community (AHIC), a understanding of directions being taken standards or best practices that will chartered Federal advisory committee, and the productive role that Federal facilitate large-scale data integration and has made recommendations to the health agencies might play in exchange to benefit personalized health Secretary to advance the development of facilitating progress, avoiding care. • Feasibility and potential benefits for electronic health records (EHR). AHIC’s unnecessary barriers, and achieving establishing linkages of institutional or activities and recommendations support optimal benefit from the opportunities organizational data resources with a nationwide approach to developing now before us. digital and interoperable health IT private and publicly available health Information Requested databases. systems that ensure the privacy and • security of patient information. Already For the purpose of achieving a Development of ontologies across underway are efforts to support broader understanding of rapid and different clinical data repositories that consumer empowerment, health safety emerging changes occurring in the will facilitate the utility of the data for and improvement, and public health health care setting that may have an answering clinical research questions. • Models for linking clinical data protection through broadly deployed, impact on the future of personalized repositories across disparate care harmonized information systems. As a health care, HHS requests input from result of the deployment of these providers. interested parties on plans for • Examples of the use of disease capabilities throughout the health care developing and using resources registries to track specific diseases and system, new avenues are emerging to involving health IT and genetic and response to drug therapies across apply information about individual molecular medicine, with specific different subpopulations. health experiences toward improved reference to incorporating these • Models for prioritizing analyses to transparency about the quality and cost capacities in evidence-based clinical fill gaps in evidence of effectiveness of of health care and transformation of practice, health outcomes evaluations, therapeutic interventions for different health care delivery, as well as decision research, and transformation of health populations. support for health practitioners. care delivery. • Strategies for accumulating patient Occurring in parallel with the Input is sought on the interest and data necessary for research that may not advances in health IT are advances in current planning activities of health care be available through EHRs. molecular and genetic medicine. This systems and related organizations on the • Concepts or models on the potential science-based approach to medicine is needs and applications of these use of clinical data and related now in the early stages of entry in transformative aspects of personalized resources for research applications. health care through the introduction of health care. Specific areas for comment • Models of cost-benefit analysis for diagnostics and treatments that target include: integrated data systems, EHR, and specific genetic and molecular features • Concepts on anticipated approaches clinical resources to inform medical of disease processes. Applications of for the use of EHR and population- and decision-making. this science and technology provide community-based health care system • Opportunities and challenges for useful information to aid in patient care databases for longitudinal data the development of electronic tools to through more accurate diagnosis and collection in addressing: aid in the integration and analysis of treatment at an individual level. The —Disease susceptibility. large datasets of clinical parameters to availability of genetic information —Clinical course and outcomes. assist in outcomes evaluations. (especially the availability of this —Treatment response. information as part of the EHR), and the —Evidenced-based clinical decision Potential Responders ability to aggregate these data and support. HHS anticipates responses from a correlate them with outcomes or other —Optimal healthcare delivery systems. broad range of individual organizations
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that have interests in health systems Fishers Lane, rm. 1066, Rockville, MD. II. Scope of the Public Workshop change and personalized health care. The agenda for the meeting will be As part of FDA’s goal to ensure that Some examples of these organizations posted at http://www.fda.gov/cder/drug/ _ all marketed drugs comply with include: unapproved drugs. appropriate FDA requirements to ensure • Submit topics by mail to the Division Community health delivery their safety and efficacy, FDA is holding of Dockets Management (HFA–305), systems. a public workshop to educate • Food and Drug Administration, 5630 Health maintenance organizations. businesses on the drug application and • Fishers Lane, rm. 1061, Rockville, MD University-based health systems. OTC monograph processes and to • 20852. Submit topics electronically to State and local public health discuss issues of interest to participants. http://www.fda.gov/dockets/ecomments. departments. Topics for discussion include the • Submit two paper copies of any mailed Other Federal agencies. following: (1) The various routes for • topics, except that individuals may Advocacy groups and public legal marketing—NDAs, ANDAs, and submit one paper copy. All requests for interest organizations. OTC monographs; (2) application • discussion topics should be identified Consumer and patient interests processes; (3) user fee applicability and with the docket number found in groups. waivers; and (4) market exclusivity for • brackets in the heading of this Health care professional societies. newly-approved drugs. The information • Trade industry organizations. document. • provided during registration will help Purchasers of health care. FOR FURTHER INFORMATION CONTACT: • us determine additional topics for Health information technology Karen Kirchberg, Center for Drug discussion and how to further focus the industry vendors. Evaluation and Research (HFD–330), workshop. Dated: October 26, 2006. Food and Drug Administration, 5600 III. Participation in the Public John O. Agwunobi, Fishers Lane, Rockville, MD 20857, Workshop Assistant Secretary for Health, Office of 301–827–8916, e-mail: Public Health and Science. [email protected]. A. Registration [FR Doc. E6–18371 Filed 10–31–06; 8:45 am] SUPPLEMENTARY INFORMATION: Register via e-mail to BILLING CODE 4150–26–P _ I. Background CDER [email protected] by providing complete contact information In the Federal Register of June 9, 2006 for each attendee (including name, title, DEPARTMENT OF HEALTH AND (71 FR 33466), FDA announced the affiliation, e-mail address, and phone HUMAN SERVICES availability of a guidance entitled number(s)) by November 15, 2006. ‘‘Marketed Unapproved Drugs— Food and Drug Administration Please indicate ‘‘Workshop— Compliance Policy Guide’’ (the Unapproved Products’’ in the ‘‘subject’’ [Docket No. 2003D–0478] Marketed Unapproved Drugs CPG). The line of the e-mail. FDA intends to guidance describes how FDA intends to respond to registration requests by e- Marketed Unapproved Drugs; Public exercise its enforcement discretion with mail after November 15, 2006. There is Workshop regard to drugs marketed in the United no registration fee to attend. Space is States that do not have required FDA limited; therefore, interested parties are AGENCY: Food and Drug Administration, approval for marketing. The guidance HHS. encouraged to register early and FDA explains that FDA intends to continue may need to limit the number of ACTION: Notice of public workshop. to give priority to enforcement actions attendees from each firm or involving unapproved drugs that have SUMMARY: The Food and Drug organization. If you need special potential safety risks, lack evidence of Administration (FDA) is announcing a accommodations due to a disability, effectiveness, and constitute health public workshop on issues related to the please e-mail your request at least 7 fraud, among other categories. The application process for seeking approval days before the meeting. Marketed Unapproved Drugs CPG also for marketed unapproved drugs. This explains how the agency intends to B. Suggested Topics will be a 1-day workshop involving FDA address those situations in which a staff and representatives from If you would like to request company obtains approval to sell a drug businesses currently marketing discussion of a specific topic for the that other companies have sold without unapproved drugs. The purpose of the workshop, submit it to the Division of FDA approval for some time. In the workshop is to provide clarification and Dockets Management (see ADDRESSES) Marketed Unapproved Drugs CPG, FDA direction to businesses on how to seek using the docket number, found in encourages companies to comply with approval to legally market drugs brackets in the heading of this the drug approval requirements of the through the new drug application (NDA) document, by November 15, 2006. We Federal Food, Drug, and Cosmetic Act. and abbreviated new drug application may not be able to include all submitted Following the publication of the topics in the workshop agenda. (ANDA) processes and how to legally Marketed Unapproved Drugs CPG, a market drugs through compliance with number of drug companies have C. Parking, Transportation, and Security the over-the-counter (OTC) monographs. contacted FDA seeking clarification Limited visitor parking is available for DATES: The public workshop will be about how to obtain approval to legally a fee, and the Twinbrook Metro station held on January 9, 2007, from 9 a.m. to market their unapproved drug products is within walking distance. Early arrival 4 p.m. Registration is open until and whether applications for marketing is encouraged, as there will be security November 15, 2006. Submit requests for are subject to user fees, among other screening. Workshop participants will specific discussion topics by November issues. The agency is committed to be asked for government-issued picture 15, 2006. working with companies to facilitate the identification by the security officers. ADDRESSES: The public workshop will process of ensuring that products are be held in the Center for Drug safe and effective and meet appropriate IV. Transcripts Evaluation and Research Advisory standards for manufacturing and Following the workshop, transcripts Committee conference room, 5630 labeling. will be available for review at the
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Division of Dockets Management (see Place: Double Tree Rockville, 1750 (Catalogue of Federal Domestic Assistance ADDRESSES), Monday through Friday Rockville Pike, Rockville, MD 20852. Program Nos. 93.853, Clinical Research between 9 a.m. and 4 p.m. You may also Contact Person: Mark Swieter, PhD, Chief, Related to Neurological Disorders; 93.854, Training and Special Projects Review Branch, Biological Basis Research in the request a copy of the transcript from the Office of Extramural Affairs, National Freedom of Information Office (HFI–35), Neurosciences, National Institutes of Health, Institute on Drug Abuse, NIH, DHHS, 6101 HHS) Food and Drug Administration, 5600 Executive Boulevard, Suite 220, Bethesda, Fishers Lane, rm. 6–30, Rockville, MD MD 20892–8401, (301) 435–1389, Dated: October 25, 2006. 20857, approximately 15 working days [email protected]. Anna Snouffer, after the public workshop at a cost of 10 This notice is being published less than 15 Acting Director, Office of Federal Advisory cents per page. days prior to the meeting due to the timing Committee Policy. limitations imposed by the review and [FR Doc. 06–8985 Filed 10–31–06; 8:45 am] Dated: October 20, 2006. funding cycle. BILLING CODE 4140–01–M Jeffrey Shuren, (Catalogue of Federal Domestic Assistance Assistant Commissioner for Policy. Program Nos. 93.279, Drug Abuse and [FR Doc. E6–17959 Filed 10–31–06; 8:45 am] Addiction Research Programs, National Institutes of Health, HHS) DEPARTMENT OF HEALTH AND BILLING CODE 4160–01–S HUMAN SERVICES Dated: October 25, 2006. Anna Snouffer, National Institutes of Health DEPARTMENT OF HEALTH AND Acting Director, Office of Federal Advisory HUMAN SERVICES Committee Policy. National Institute of Mental Health; [FR Doc. 06–8984 Filed 10–31–06; 8:45 am] Notice of Closed Meeting National Institutes of Health BILLING CODE 4140–01–M Pursuant to section 10(d) of the National Institute on Drug Abuse; Federal Advisory Committee Act, as Notice of Closed Meeting DEPARTMENT OF HEALTH AND amended (5 U.S.C. Appendix 2), notice HUMAN SERVICES is hereby given of the following Pursuant to section 10(d) of the meeting. Federal Advisory Committee Act, as National Institutes of Health amended (5 U.S.C. Appendix 2), notice The meeting will be closed to the is hereby given of the following National Institute of Neurological public in accordance with the meetings. Disorders and Stroke; Notice of Closed provisions set forth in sections Meeting 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., The meetings will be closed to the as amended. The grant applications and public in accordance with the Pursuant to section 10(d) of the the discussions could disclose provisions set forth in sections Federal Advisory Committee Act, as confidential trade secrets or commercial 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., amended (5 U.S.C. Appendix 2), notice property such as patentable material, as amended. The grant applications and is hereby given of the following and personal information concerning the discussions could disclose meeting. individuals associated with the grant confidential trade secrets or commercial The meeting will be closed to the applications, the disclosure of which property such as patentable material, public in accordance with the would constitute a clearly unwarranted and personal information concerning provisions set forth in sections invasion of personal privacy. individuals associated with the grant 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., applications, the disclosure of which as amended. The contract proposals and Name of Committee: National Institute of would constitute a clearly unwarranted Mental Health Special Emphasis Panel, the discussions could disclose Mental Health Services in Non-Specialty invasion of personal privacy. confidential trade secrets or commercial Settings. Name of Committee: National Institute on property such as patentable material, Date: November 7, 2006. Drug Abuse Special Emphasis Panel, NIDA– and personal information concerning Time: 3 p.m. to 5 p.m. K conflicts SEP A. individuals associated with the contract Agenda: To review and evaluate grant Date: November 14, 2006. proposals, the disclosure of which applications. Time: 4 p.m. to 5 p.m. would constitute a clearly unwarranted Place: National Institutes of Health, Agenda: To review and evaluate grant invasion of personal privacy. Neuroscience Center, 6001 Executive applications. Boulevard, Rockville, MD 20852, (Telephone Place: Double Tree Rockville, 1750 Name of Committee: National Institute of Conference Call). Rockville Pike, Rockville, MD 20852. Neurological Disorders and Stroke Special Contact Person: Aileen Schulte, PhD, Contact Person: Mark Swieter, PhD, Chief, Emphasis Panel, Neuro AIDS Imaging II. Scientific Review Administrator, Division of Training and Special Projects Review Branch, Date: November 3, 2006. Extramural Activities, National Institute of Office of Extramural Affairs, National Time: 1 p.m. to 3 p.m. Mental Health, NIH, Neuroscience Center, Agenda: To review and evaluate contract Institute on Drug Abuse, NIH, DHHS, 6101 6001 Executive Blvd, Room 6140, MSC 9608, proposals. Executive Boulevard, Suite 220, Bethesda, Bethesda, MD 20892–9608, 301–443–1225, Place: National Institutes of Health, MD 20892–8401, (301) 435–1389, [email protected]. Neuroscience Center, 6001 Executive [email protected]. This notice is being published less than 15 Boulevard, Rockville, MD 20852, (Telephone This notice is being published less than 15 Conference Call). days prior to the meeting due to the timing days prior to the meeting due to the timing Contact Person: Phillip F. Wiethorn, limitations imposed by the review and limitations imposed by the review and Scientific Review Administrator, DHHS/NIH/ funding cycle. funding cycle. NINDS/DER/SRB, 6001 Executive Boulevard; (Catalogue of Federal Domestic Assistance Name of Committee: National Institute on MSC 9529, Neuroscience Center; Room 3203, Program Nos. 93.242, Mental Health Research Drug Abuse Special Emphasis Panel, NIDA– Bethesda, MD 20892–9529, (301) 496–5388, Grants; 93.281, Scientist Development K conflicts SEP B. [email protected]. Award, Scientist Development Award for Date: November 14, 2006. This notice is being published less than 15 Clinicians, and Research Scientist Award; Time: 5 p.m. to 6 p.m. days prior to the meeting due to the timing 93.282, Mental Health National Research Agenda: To review and evaluate grant limitations imposed by the review and Service Awards for Research Training, applications. funding cycle. National Institutes of Health, HHS)
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Dated: October 24, 2006. DEPARTMENT OF HEALTH AND Contact Person: Robert Wellner, PhD, Anna Snouffer, HUMAN SERVICES Scientific Review Administrator, Review Branch, DEA, NIDDK, National Institutes of Acting Director, Office of Federal Advisory Health, Room 706, 6707 Democracy Committee Policy. National Institutes of Health Boulevard, Bethesda, MD 20892–5452, [FR Doc. 06–8986 Filed 10–31–06; 8:45 am] National Institute of Diabetes and [email protected]. BILLING CODE 4140–01–M Digestive and Kidney Diseases; Notice Name of Committee: National Institute of of Closed Meetings Diabetes and Digestive and Kidney Diseases Special Emphasis Panel, Membrane DEPARTMENT OF HEALTH AND Pursuant to section 10(d) of the Topography of Cell Signaling Complexes. HUMAN SERVICES Federal Advisory Committee Act, as Date: November 21, 2006. amended (5 U.S.C. Appendix 2), notice Time: 1 p.m. to 5 p.m. National Institutes of Health is hereby given of the following Agenda: To review and evaluate grant meetings. applications. National Institute of General Medical Place: National Institutes of Health, Two The meetings will be closed to the Sciences; Notice of Closed Meeting Democracy Plaza, 6707 Democracy public in accordance with the Boulevard, Bethesda, MD 20892 (Telephone Pursuant to section 10(d) of the provisions set forth in sections Conference Call). Federal Advisory Committee Act, as 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Contact Person: Robert Wellner, PhD, amended (5 U.S.C. Appendix 2), notice as amended. The grant applications and Scientific Review Administrator, Review is hereby given of the following the discussions could disclose Branch, DEA, NIDDK, National Institutes of meeting. confidential trade secrets or commercial Health, Room 706, 6707 Democracy The meeting will be closed to the property such as patentable material, Boulevard, Bethesda, MD 20892–5452, public in accordance with the and personal information concerning [email protected]. provisions set forth in sections individuals associated with the grant Name of Committee: National Institute of 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., applications, the disclosure of which Diabetes and Digestive and Kidney Diseases would constitute a clearly unwarranted Special Emphasis Panel, Program to Reduce as amended. The grant applications and Incontinence by Diet and Exercise Ancillary the discussions could disclose invasion of personal privacy. Study. confidential trade secrets or commercial Name of Committee: National Institute of Date: November 28, 2006. property such as patentable material, Diabetes and Digestive and Kidney Diseases Time: 1 p.m. to 4 p.m. and personal information concerning Special Emphasis Panel, GI Training Agenda: To review and evaluate grant individuals associated with the grant Program. applications. applications, the disclosure of which Date: November 17, 2006. Place: National Institutes of Health, Two would constitute a clearly unwarranted Time: 1 p.m. to 2 p.m. Democracy Plaza, 6707 Democracy Agenda: To review and evaluate grant invasion of personal privacy. Boulevard, Bethesda, MD 20892 (Telephone applications. Conference Call). Name of Committee: National Institute of Place: National Institutes of Health, Two Contact Person: Robert Wellner, PhD, General Medical Sciences Special Emphasis Democracy Plaza, 6707 Democracy Scientist Review Administrator, Review Panel, Pharmacology. Boulevard, Bethesda, MD 20892 (Telephone Branch, DEA, NIDDK, National Institutes of Date: November 7, 2006. Conference Call). Health, Room 706, 6707 Democracy Time: 9:30 a.m. to 1 p.m. Contact Person: Michael W. Edwards, PhD, Boulevard, Bethesda, MD 20892–5452, Agenda: To review and evaluate grant Scientific Review Administrator, Review [email protected]. Branch, DEA, NIDDK, National Institutes of applications. Name of Committee: National Institute of Health, Room 750, 6707 Democracy Place: National Institutes of Health, 45 Diabetes and Digestive and Kidney Diseases Center Drive, Room 3AN–18, Bethesda, MD Boulevard, Bethesda, MD 20892–5452. (301) 594–8886; [email protected]. Special Emphasis Panel, Small Clinical 20892 (Telephone Conference Call). Grants in Biliary Disorders. Contact Person: Carole H. Latker, PhD, Name of Committee: National Institute of Date: November 30, 2006. Scientific Review Administrator, Office of Diabetes and Digestive and Kidney Diseases Time: 4 p.m. to 5:15 p.m. Scientific Review, National Institute of Special Emphasis Panel, High-Dose Urso in Agenda: To review and evaluate grant Primary Sclerosing Cholangitis. General Medical Sciences, National Institutes applications. Date: November 17, 2006. of Health, Natcher Building, Room 3AN–18, Place: National Institutes of Health, Two Time: 2:30 p.m. to 5:30 p.m. Bethesda, MD 20892, (301) 594–2848, latkerc Democracy Plaza, 6707 Democracy Agenda: To review and evaluate grant @nigms.nih.gov. Boulevard, Bethesda, MD 20892 (Telephone applications. This notice is being published less than 15 Conference Call). days prior to the meeting due to the timing Place: National Institutes of Health, 6701 Rockledge Drive, Bethesda, MD 20892 Contact Person: Maria E. Davila-Bloom, limitations imposed by the review and PhD, Scientist Review Administrator, Review funding cycle. (Telephone Conference Call). Contact Person: Robert Wellner, PhD, Branch, DEA, NIDDK, National Institutes of (Catalogue of Federal Domestic Assistance Scientific Review Administrator, Review Health, Room 758, 6707 Democracy Program Nos. 93.375, Minority Biomedical Branch, DEA, NIDDK, National Institutes of Boulevard, Bethesda, MD 20892–5452 (301) Research Support; 93.821, Cell Biology and Health, Room 706, 6707 Democracy 594–7637, davila- Biophysics Research; 93.859, Pharmacology, Boulevard, Bethesda, MD 20892–5452, [email protected]. Physiology, and Biological Chemistry [email protected]. Name of Committee: National Institute of Research; 93.862, Genetics and Name of Committee: National Institute of Diabetes and Digestive and Kidney Diseases Developmental Biology Research; 93.88, Special Emphasis Panel, Eliminating Minority Access to Research Careers; 93.96, Diabetes and Digestive and Kidney Diseases Special Emphasis Panel, Digestive and Liver Mechanical Bowel Preparation in Colorectal Special Minority Initiatives, National Diseases Mentoring Program. Surgery. Institutes of Health, HHS) Date: November 20, 2006. Date: December 4, 2006. Dated: October 23, 2006. Time: 1 p.m. to 4 p.m. Time: 2 p.m. to 3 p.m. Anna Snouffer, Agenda: To review and evaluate grant Agenda: To review and evaluate grant applications. applications. Acting Director, Office of Federal Advisory Place: National Institutes of Health, Two Place: National Institutes of Health, Two Committee Policy. Democracy Plaza, 6707 Democracy Democracy Plaza, 6707 Democracy [FR Doc. 06–8988 Filed 10–31–06; 8:45am] Boulevard, Bethesda, MD 20892 (Telephone Boulevard, Bethesda, MD 20892 (Telephone BILLING CODE 4140–01–M Conference Call). Conference Call).
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Contact Person: Dan E. Matsumoto, PhD, and Hematology Research, National Institutes Name of Committee: Center for Scientific Scientist Review Administrator, Review of Health, HHS) Review Special Emphasis Panel, Cardiac Branch, DEA, NIDDK, National Institutes of Repair. Dated: October 23, 2006. Health, Room 749, 6707 Democracy Date: November 20–21, 2006. Boulevard, Bethesda, MD 20892–5452, (301) Anna Snouffer, Time: 9 a.m. to 9 p.m. 594–8894. [email protected]. Acting Director, Office of Federal Advisory Agenda: To review and evaluate grant (Catalogue of Federal Domestic Assistance Committee Policy. applications. Program Nos. 93.847, Diabetes, [FR Doc. 06–8990 Filed 10–31–06; 8:45 am] Place: National Institutes of Health, 6701 Rockledge Drive, Bethesda, MD 20892 Endocrinology and Metabolic Research; BILLING CODE 4140–01–M 93.848, Digestive Diseases and Nutrition (Virtual Meeting). Contact Person: Maqsood A. Wani, PhD, Research; 93.849, Kidney Diseases, Urology DVM, Scientific Review Administrator, and Hematology Research, National Institutes DEPARTMENT OF HEALTH AND Center for Scientific Review, National of Health, HHS) HUMAN SERVICES Institutes of Health, 6701 Rockledge Drive, Dated: October 23, 2006. Room 2114, MSC 7814, Bethesda, MD 20892 Anna Snouffer, National Institutes of Health (301) 435–2770, [email protected]. Name of Committee: Center for Scientific Acting Director, Office of Federal Advisory Center for Scientific Review; Notice of Committee Policy. Review Special Emphasis Panel, Vascular Closed Meetings Bioengineering Partnership. [FR Doc. 06–8989 Filed 10–31–06; 8:45 am] Date: November 30, 2006. BILLING CODE 4140–01–M Pursuant to section 10(d) of the Time: 1 p.m. to 3 p.m. Federal Advisory Committee Act, as Agenda: To review and evaluate grant amended (5 U.S.C. Appendix 2), notice applications. DEPARTMENT OF HEALTH AND is hereby given of the following Place: National Institutes of Health, 6701 HUMAN SERVICES Rockledge Drive, Bethesda, MD 20892 meetings. (Telephone Conference Call). National Institutes of Health The meetings will be closed to the Contact Person: Ai-Ping Zou, PhD, MD, public in accordance with the Scientific Review Administrator, Center for National Institute of Diabetes and provisions set forth in sections Scientific Review, National Institutes of Health, 6701 Rockledge Drive, Room 4118, Digestive and Kidney Diseases; Notice 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., of Closed Meeting MSC 7814, Bethesda, MD 20892 (301) 435– as amended. The grant applications and 1777, [email protected]. the discussions could disclose (Catalogue of Federal Domestic Assistance Pursuant to section 10(d) of the confidential trade secrets or commercial Federal Advisory Committee Act, as Program Nos. 93.306, Comparative Medicine; property such as patentable material, 93.333, Clinical Research; 93.306, 93.333, amended (5 U.S.C. Appendix 2), notice and personal information concerning 93.337, 93.393–93.396, 93.837–93.844, is hereby given of the following individuals associated with the grant 93.846–93.878, 93.892, 93.893, National meeting. applications, the disclosure of which Institutes of Health, HHS) The meeting will be closed to the would constitute a clearly unwarranted Dated: October 24, 2006. public in accordance with the invasion of personal privacy. Anna Snouffer, provisions set forth in sections Name of Committee: Center for Scientific Acting Director, Office of Federal Advisory 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Review Special Emphasis Panel, Microscopy Committee Policy. as amended. The grant applications and Probes. [FR Doc. 06–8987 Filed 10–31–06; 8:45 am] the discussions could disclose Date: November 6, 2006. BILLING CODE 4140–01–M confidential trade secrets or commercial Time: 10 a.m. to 11 a.m. property such as patentable material, Agenda: To review and evaluate grant and personal information concerning applications. DEPARTMENT OF HEALTH AND individuals associated with the grant Place: National Institutes of Health, 6701 HUMAN SERVICES applications, the disclosure of which Rockledge Drive, Bethesda, MD 20892 would constitute a clearly unwarranted (Telephone Conference Call). National Institutes of Health Contact Person: Ross D. Shonat, PhD, invasion of personal privacy. Scientific Review Administrator, Center for Translational Research Working Group Name of Committee: National Institute of Scientific Review, National Institutes of Diabetes and Digestive and Kidney Diseases Health, 6701 Rockledge Drive, Room 3022A, Public Comment Period; Correction Special Emphasis Panel, Ancillary Studies MSC 7849, Bethesda, MD 20892, (301) 435– Notice Review. 2786, [email protected]. The National Cancer Institute (NCI) of Date: November 13, 2006. This notice is being published less than 15 the National Institutes of Health Time: 4 p.m. to 5 p.m. days prior to the meeting due to the timing Agenda: To review and evaluate grant limitations imposed by the review and published a notice soliciting public applications. funding cycle. comment on the draft initiatives and Place: National Institutes of Health, 6705 Name of Committee: Center for Scientific implementation concepts proposed by Rockledge Drive, Bethesda, MD 20817 Review Special Emphasis Panel, Immunity the Translational Research Working (Telephone Conference Call). and Pathogenesis in AIDS. Group (TRWG) in the Federal Register Contact Person: Carol J. Goter-Robinson, Date: November 17, 2006. on October 23, 2006, 71 FR 62114– PhD, Scientific Review Administrator, Time: 8:30 a.m. to 5 p.m. 62115. The DATES caption errantly Review Branch, DEA, NIDDK, National Agenda: To review and evaluate grant indicated that comments could be Institutes of Health, Room 748, 6707 applications. submitted through November 22, 2006. Democracy Boulevard, Bethesda, MD 20892– Place: Bethesda Marriott, 5151 Pooks Hill DATES 5452, (301) 594–7791, That date was incorrect. The Road, Bethesda, MD 20814. caption found on page 62115 of the [email protected]. Contact Person: Mary Clare Walker, PhD, DATES: (Catalogue of Federal Domestic Assistance Scientific Review Administrator, Center for notice should have read: ‘‘ Parties Program Nos. 93.847, Diabetes, Scientific Review, National Institutes of interested in submitting comments on Endocrinology and Metabolic Research; Health, 6701 Rockledge Drive, Room 5208, the draft initiatives should submit them 93.848, Digestive Diseases and Nutrition MSC 7852, Bethesda, MD 20892, (301) 435– to http://www.cancer.gov/trwg by Research; 93.849, Kidney Diseases, Urology 1165, [email protected]. November 3, 2006.’’
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Dated: October 26, 2006. Grants; 97.039, Hazard Mitigation Grant The Federal Emergency Management Ernest Hawk, Program.) Agency (FEMA) hereby gives notice that Director, Office of Centers, Training and R. David Paulison, pursuant to the authority vested in the Resources, National Cancer Institute, Under Secretary for Federal Emergency Director, under Executive Order 12148, National Institutes of Health. Management and Director of FEMA. as amended, Peter J. Martinasco, of [FR Doc. E6–18351 Filed 10–31–06; 8:45 am] [FR Doc. E6–18320 Filed 10–31–06; 8:45 am] FEMA is appointed to act as the Federal Coordinating Officer for this declared BILLING CODE 4140–01–P BILLING CODE 9110–10–P disaster. I do hereby determine the following DEPARTMENT OF HOMELAND areas of the State of New York to have DEPARTMENT OF HOMELAND SECURITY been affected adversely by this declared SECURITY major disaster: Federal Emergency Management Erie, Genesee, Niagara, and Orleans Federal Emergency Management Agency Counties for Individual Assistance and Public Assistance. Agency [FEMA–1665–DR] All counties within the State of New York New York; Major Disaster and Related are eligible to apply for assistance under the [FEMA–1664–DR] Hazard Mitigation Grant Program. Determinations (The following Catalog of Federal Domestic Hawaii; Amendment No. 1 to Notice of AGENCY: Federal Emergency Assistance Numbers (CFDA) are to be used a Major Disaster Declaration Management Agency, Department of for reporting and drawing funds: 97.030, Homeland Security. Community Disaster Loans; 97.031, Cora AGENCY: Federal Emergency Brown Fund Program; 97.032, Crisis ACTION: Notice. Management Agency, Department of Counseling; 97.033, Disaster Legal Services Homeland Security. SUMMARY: This is a notice of the Program; 97.034, Disaster Unemployment Presidential declaration of a major Assistance (DUA); 97.046, Fire Management ACTION: Notice. Assistance; 97.048, Individuals and disaster for the State of New York Households Housing; 97.049, Individuals and (FEMA–1665–DR), dated October 24, SUMMARY: This notice amends the notice Households Disaster Housing Operations; 2006, and related determinations. of a major disaster declaration for the 97.050 Individuals and Households Program- State of Hawaii (FEMA–1664–DR), DATES: Effective Date: October 24, 2006. Other Needs, 97.036, Public Assistance FOR FURTHER INFORMATION CONTACT: Grants; 97.039, Hazard Mitigation Grant dated October 17, 2006, and related Program.) determinations. Magda Ruiz, Recovery Division, Federal Emergency Management Agency, R. David Paulison, DATES: Effective Date: October 23, 2006. Washington, DC 20472, (202) 646–2705. Under Secretary for Federal Emergency SUPPLEMENTARY INFORMATION: FOR FURTHER INFORMATION CONTACT: Notice is Management and Director of FEMA. Magda Ruiz, Recovery Division, Federal hereby given that, in a letter dated [FR Doc. E6–18312 Filed 10–31–06; 8:45 am] Emergency Management Agency, October 24, 2006, the President declared BILLING CODE 9110–10–P Washington, DC 20472, (202) 646–2705. a major disaster under the authority of the Robert T. Stafford Disaster Relief SUPPLEMENTARY INFORMATION: The notice and Emergency Assistance Act, 42 DEPARTMENT OF HOMELAND of a major disaster declaration for the U.S.C. 5121–5206 (the Stafford Act), as SECURITY State of Hawaii is hereby amended to follows: Transportation Security Administration include the Individual Assistance I have determined that the damage in program for the following area among certain areas of the State of New York New Emergency Agency Information those areas determined to have been resulting from severe storms and flooding adversely affected by the catastrophe during the period of October 12–13, 2006, Collection Activity Under OMB Review: declared a major disaster by the and continuing, is of sufficient severity and Sensitive Security Information Threat President in his declaration of October magnitude to warrant a major disaster Assessments 17, 2006: declaration under the Robert T. Stafford Disaster Relief and Emergency Assistance AGENCY: Transportation Security Hawaii County for Individual Assistance Act, 42 U.S.C. 5121–5206 (the Stafford Act). Administration, DHS. and Public Assistance [Categories C–G] Therefore, I declare that such a major disaster ACTION: Notice of emergency clearance (already designated for debris removal and exists in the State of New York. request. emergency protective measures [Categories A In order to provide Federal assistance, you and B], including direct Federal assistance, are hereby authorized to allocate from funds SUMMARY: This Notice announces that available for these purposes such amounts as under the Public Assistance program.) the Transportation Security you find necessary for Federal disaster (The following Catalog of Federal Domestic Administration (TSA) has forwarded the assistance and administrative expenses. new Information Collection Request Assistance Numbers (CFDA) are to be used You are authorized to provide Individual for reporting and drawing funds: 97.030, Assistance and Public Assistance in the (ICR) abstracted below to the Office of Community Disaster Loans; 97.031, Cora designated areas, as well as Hazard Management and Budget (OMB) for Brown Fund Program; 97.032, Crisis Mitigation throughout the State. Consistent emergency processing and approval Counseling; 97.033, Disaster Legal Services with the requirement that Federal assistance under the Paperwork Reduction Act. be supplemental, any Federal funds provided Program; 97.034, Disaster Unemployment The ICR describes the nature of under the Stafford Act for Public Assistance, Assistance (DUA); 97.046, Fire Management information collection and its expected Hazard Mitigation, and Other Needs burden. Assistance; 97.048, Individuals and Assistance will be limited to 75 percent of Households Housing; 97.049, Individuals and the total eligible costs. Further, you are DATES: Send your comments by Households Disaster Housing Operations; authorized to make changes to this December 1, 2006. A comment to OMB 97.050 Individuals and Households Program- declaration to the extent allowable under the is most effective if OMB receives it Other Needs, 97.036, Public Assistance Stafford Act. within 30 days of publication.
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ADDRESSES: Interested persons are information that would be detrimental via secure electronic mail or regular or invited to submit written comments on to transportation security if publicly express mail. These individuals must the proposed information collection to disclosed. TSA’s SSI regulation, 49 CFR also submit fingerprints for purposes of the Office of Information and Regulatory part 1520, establishes certain conducting the CHRC. Affairs, Office of Management and requirements for the recognition, TSA will use the information to Budget. Comments should be addressed identification, handling, and conduct name-based security threat to Nathan Lesser, Desk Officer, dissemination of SSI, including assessments and CHRCs for the purpose Department of Homeland Security/TSA, restrictions on disclosure and civil of identifying actual or potential threats and sent via electronic mail to penalties for violations of those to transportation security and the [email protected] or faxed restrictions. Individuals may only nation. The results of the CHRC and to (202) 395–6974. access SSI if they are a covered person threat assessment will be used to make FOR FURTHER INFORMATION CONTACT: with a need to know as defined by the a final determination on whether the Katrina Kletzly, Attorney-Advisor, regulation. Section 525 of the individual may be granted access to SSI. Office of the Chief Counsel, TSA–2, Department of Homeland Security Number of Respondents: 80. Transportation Security Administration, Appropriations Act of 2007 (DHS Estimated Annual Burden Hours: An 601 South 12th Street, Arlington, VA Appropriations Act) provides that in estimated 80 hours annually. 22202–4220; telephone (571) 227–1995; civil proceedings in the U.S. District Issued in Arlington, Virginia, on October facsimile (571) 227–1381. Courts, where a party seeking access to 27, 2006. SSI demonstrates a substantial need for SUPPLEMENTARY INFORMATION: Peter Pietra, relevant SSI in the preparation of the Director of Privacy Policy and Compliance. Comments Invited party’s case and an undue hardship to obtain equivalent information by other [FR Doc. 06–9011 Filed 10–30–06; 10:48 am] In accordance with the Paperwork means, the party or party’s counsel shall BILLING CODE 9110–05–P Reduction Act of 1995 (44 U.S.C. 3501 be designated as a covered person under et seq.), an agency may not conduct or 49 CFR part 1520.7, provided that the sponsor, and a person is not required to overseeing judge enters an order DEPARTMENT OF THE INTERIOR respond to, a collection of information protecting the SSI from unauthorized unless it displays a valid OMB control disclosure; the individual undergoes a Fish and Wildlife Service number. Therefore, in preparation for criminal history records check (CHRC) Receipt of Applications for Permit OMB review and approval of the and threat assessment; and the following information collection, TSA is provision of access to the specific SSI in AGENCY: Fish and Wildlife Service, soliciting comments to— question in a particular proceeding does Interior. (1) Evaluate whether the proposed not present a risk of harm to the nation. information requirement is necessary for ACTION: Notice of receipt of applications TSA is implementing sec. 525 of the for permit. the proper performance of the functions DHS Appropriations Act by establishing of the agency, including whether the a process whereby a party seeking SUMMARY: The public is invited to information will have practical utility; access to SSI in a civil proceeding in comment on the following applications (2) Evaluate the accuracy of the Federal court that demonstrates a to conduct certain activities with agency’s estimate of the burden; substantial need for relevant SSI in endangered species. (3) Enhance the quality, utility, and preparation of the party’s case may DATES: Written data, comments or clarity of the information to be request that the party, or if represented, requests must be received by December collected; and an attorney, be granted access to the SSI. 1, 2006. (4) Minimize the burden of the In order to determine if the individual ADDRESSES: Documents and other collection of information on those who may be granted access to SSI for this information submitted with these are to respond, including using purpose, TSA will conduct a criminal applications are available for review, appropriate automated, electronic, history records check (CHRC) and subject to the requirements of the mechanical, or other technological security threat assessment. TSA is Privacy Act and Freedom of Information collection techniques or other forms of seeking emergency processing of this Act, by any party who submits a written information technology. information collection request to request for a copy of such documents Information Collection Requirement implement sec. 525 of the DHS Appropriations Act and meet ongoing within 30 days of the date of publication Title: Sensitive Security Information litigation deadlines in pending of this notice to: U.S. Fish and Wildlife Threat Assessments. litigation, including those in In Re: Service, Division of Management Type of Request: Emergency September 11 Litigation, 21 MC 97 &101 Authority, 4401 North Fairfax Drive, processing request of new collection. (S.D.N.Y.). Room 700, Arlington, Virginia 22203; OMB Control Number: Not yet The Aviation and Transportation fax 703/358–2281. assigned. Security Act (ATSA), Pub. L. 107–71, FOR FURTHER INFORMATION CONTACT: Forms(s): Security Threat Assessment sec. 114 (f), authorizes TSA to perform Division of Management Authority, Application. threat assessments. To accomplish this, telephone 703/358–2104. Affected Public: Individuals seeking individuals will be required to submit SUPPLEMENTARY INFORMATION: access to Sensitive Security Information identifying information, information (SSI) for use in civil proceedings in regarding the litigation, an explanation Endangered Species Federal court. supporting the party’s need for the The public is invited to comment on Abstract: Section 114(s) of title 49 of information, information concerning the the following applications for a permit the U.S.C. requires the Transportation individual’s bar membership, if to conduct certain activities with Security Administration (TSA) to applicable, and information concerning endangered species. This notice is promulgate regulations governing the sanctions, if any, issued by a court or provided pursuant to Section 10(c) of protection of Sensitive Security other judicial body to the individual or the Endangered Species Act of 1973, as Information (SSI). SSI includes any of the individual’s clients to TSA amended (16 U.S.C. 1531 et seq.).
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Written data, comments, or requests for pygargus) culled from a captive herd ACTION: Notice of issuance of permits for copies of these complete applications maintained under the management marine mammals. should be submitted to the Director program of the Republic of South Africa, (address above). for the purpose of enhancement of the SUMMARY: The following permits were survival of the species. Applicant: Ralph S. Cunningham, Jr., issued. League City, TX, PRT–134857 Applicant: Harry J. Daily, Jr., ADDRESSES: Documents and other Natchitoches, LA, PRT–134247 The applicant requests a permit to information submitted with these import the sport-hunted trophy of one The applicant requests a permit to applications are available for review, male bontebok (Damaliscus pygargus import the sport-hunted trophy of one subject to the requirements of the pygargus) culled from a captive herd male bontebok (Damaliscus pygargus Privacy Act and Freedom of Information maintained under the management pygargus) culled from a captive herd Act, by any party who submits a written program of the Republic of South Africa, maintained under the management request for a copy of such documents to: for the purpose of enhancement of the program of the Republic of South Africa, U.S. Fish and Wildlife Service, Division survival of the species. for the purpose of enhancement of the of Management Authority, 4401 North survival of the species. Applicant: William Toriello, Midlothian, Fairfax Drive, Room 700, Arlington, VA, PRT–135611 Dated: October 13, 2006. Virginia 22203; fax 703/358–2281. Michael S. Moore, The applicant requests a permit to FOR FURTHER INFORMATION CONTACT: import the sport-hunted trophy of one Senior Permit Biologist, Branch of Permits, Division of Management Authority. Division of Management Authority, male bontebok (Damaliscus pygargus telephone 703/358–2104. pygargus) culled from a captive herd [FR Doc. E6–18366 Filed 10–31–06; 8:45 am] maintained under the management BILLING CODE 4310–55–P SUPPLEMENTARY INFORMATION: Notice is program of the Republic of South Africa, hereby given that on the dates below, as for the purpose of enhancement of the authorized by the provisions of the survival of the species. DEPARTMENT OF THE INTERIOR Marine Mammal Protection Act of 1972, Applicant: John J. Wolfe, Savannah, TN, Fish and Wildlife Service as amended (16 U.S.C. 1361 et seq.,) the PRT–135139 Fish and Wildlife Service issued the Issuance of Permits requested permits subject to certain The applicant requests a permit to conditions set forth therein. import the sport-hunted trophy of one AGENCY: Fish and Wildlife Service, male bontebok (Damaliscus pygargus Interior. Marine Mammals
Permit issuance Permit No. Applicant Receipt of application Federal Register notice date
127272 ...... Kerry Clary ...... 71 FR 48938; August 22, 2006 ...... October 12, 2006. 127336 ...... Paul Hostetler ...... 71 FR 48938; August 22, 2006 ...... October 12, 2006. 127255 ...... John H. Babin ...... 71 FR 48938; August 22, 2006 ...... October 12, 2006.
Dated: October 13, 2006. Copies of the proposed collection of 2. The accuracy of the bureau’s Michael S. Moore, information and related forms may be estimate of the burden of the collection Senior Permit Biologist, Branch of Permits, obtained by contacting the Bureau’s of information, including the validity of Division of Management Authority. clearance office at the phone number the methodology and assumptions used: [FR Doc. E6–18365 Filed 10–31–06; 8:45 am] listed below. OMB has up to 60 days to 3. The quality, utility, and clarity of BILLING CODE 4310–55–P approve or disapprove the information the information to be collected; and collection, but may respond after 30 4. How to minimize the burden of the days; therefore public comments should collection of information on those who DEPARTMENT OF THE INTERIOR be submitted to OMB within 30 days in are to respond, including the use of appropriate automated, electronic, Geological Survey order to assure maximum consideration. Comments and suggestions on the mechanical, or other forms of Annual National Earthquake Hazards proposal should be made directly to the information technology. Reduction Program Announcement Desk Office for the Interior Department, Title: Annual National Earthquake OMB–OIRA, via e-mail to Hazards Reduction Program AGENCY: U.S. Geological Survey, [email protected] or via Announcement. Interior. facsimile to (202) 395–6566, and to the OMB approval number: 1028–0051. ACTION: Request for public comments on Bureau clearance officer, U.S. Abstract: Respondents submit proposed information collection Geological Survey, 807 National Center, proposals to support research in submitted to the Office of Management 12201 Sunrise Valley Drive, Reston, earthquake hazard assessments and and Budget for review under the Virginia, 20192. earthquake occurrence. This Paperwork Reduction Act. information will be used as the basis for Specific public comments are selection and award of projects meeting requested as to: SUMMARY: The proposal to extend the the program objectives. Final reports of collection of information described 1. Whether the collection of research findings are required on each below will be submitted to the Office of information is necessary for the proper selected performances. Management and Budget for approval performance of the functions of the Bureau form number: None. under the provisions of the Paperwork bureau, including whether the Frequency: Annual proposals, final Reduction Act (44 U.S.C. Chapter 35). information will have practical utility; reports.
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Description of respondents: (b) Preparing a probate package for individual non-Indians, individual Educational institutions, profit and non- review; tribal member-owned businesses, non- profit organizations, individuals, and (c) Filing claims; Indian owned businesses, tribal agencies of local or State governments. (d) Disbursing assets; and governments, and land owners who are Annual responses: 300. (e) Filing appeals for adverse seeking a benefit. Annual burden hours: 12,000 hours. decisions. Number of Respondents: 37,477 Bureau clearance officer: Fred Request for Comments annually. Travnicek, 703–648–7231. Annual hours: 179,868. FOR FURTHER INFORMATION CONTACT: The BIA requests your comments on Estimated Time per Response: 5 Elizabeth Lemersal, U.S. Geological this collection concerning: hours. Survey, MS905 National Center, Reston, (a) The necessity of this information Frequency of Response: As required. collection for the proper performance of Virginia 20192, (703) 648–6717. Dated: October 27, 2006. the functions of the agency, including Michael D. Olsen, Dated: October 26, 2006. whether the information will have John Haines, practical utility; Principal Deputy Assistant Secretary—Indian Affairs. Acting, Associate Director for Geology, U.S. (b) The accuracy of the agency’s Geological Survey. estimate of the burden (hours and cost) [FR Doc. E6–18399 Filed 10–31–06; 8:45 am] [FR Doc. 06–8996 Filed 10–31–06; 8:45 am] of the collection of information, BILLING CODE 4310–W7–P BILLING CODE 4310–Y7–M including the validity of the methodology and assumptions used; (c) Ways we could enhance the DEPARTMENT OF THE INTERIOR DEPARTMENT OF THE INTERIOR quality, utility and clarity of the National Park Service information to be collected; and Bureau of Indian Affairs (d) Ways we could minimize the Notice of Availability of a Record of burden of the collection of the Proposed Information Collection Under Decision for the Fort King Special information on the respondents, such as Resource Study the Paperwork Reduction Act; facilitating use of automation for Comment Request collection techniques or other forms of SUMMARY: Congress, in the Interior AGENCY: Bureau of Indian Affairs, information technology. Appropriations Act of 2000, authorized Interior. Please note that an agency may not the Fort King Special Resource Study and Final Environmental Impact ACTION: Notice of proposed collection. sponsor or request and an individual need not respond to, a collection of Statement (‘‘Study’’). The legislation SUMMARY: As required by the Paperwork information unless it has a valid OMB directed the National Park Service (NPS) Reduction Act of 1995, we are renewing Control Number. to determine whether Fort King is the information collection found in the It is our policy to make all comments nationally significant and, if so, whether general Probate of Indian Decedents’ available to the public for review at the it is suitable and feasible as a new unit Estates, Except for Members of the Five location listed in the ADDRESSES section, of the National Park System. Civilized Tribes regulations. The 10th Floor, during the hours of 8:30 a.m. Acknowledging the site’s National purpose of this data collection is to to 5 p.m. MST, Monday through Friday Historic Landmark (NHL) status, the ensure that Probate regulations are except for legal holidays. If you wish to Study determined that Fort King is administered for the benefit of have your name and/or address nationally significant. In addition, the individual Indians and any persons withheld, you must state this Study determined that Fort King is having claims against an Indian prominently at the beginning of your suitable and feasible for inclusion in the decedent’s estate. comments. We will honor your request National Park System because its DATES: Comments on this proposed according to the requirements of the interpretive themes are information collection must be received law. All comments from organizations underrepresented in the current system by January 2, 2007. or representatives will be available for and the property is of sufficient size and review. We may withhold comments shape to protect resources and ADDRESSES: Send comments to William from review for other reasons. accommodate public use. The study Titchywy, Bureau of Indian Affairs, OMB Control Number: 1076–0156. does not, however, propose an active Office of Trust Services, Special Projects Type of Review: Renewal. NPS management role at the site. Office, 10th Floor, P.O. Box 10, Phoenix, Title: Probate of Indian Estates, Except Rather, existing programs such as Save AZ 85001–0010. Comments may also be for Members of the Five Civilized America’s Treasures and Preserve telefaxed to (602) 379–4005. We cannot Tribes, 25 CFR 15. America are used to exemplify the types accept E-mail comments at this time. Brief Description of collection: of NPS assistance available to future FOR FURTHER INFORMATION CONTACT: Information is collected through the non-Federal managers of the Fort King William Titchywy, 602–379–4002. probate process when the BIA learns of property. SUPPLEMENTARY INFORMATION: The a decedent’s death from a family The Final Study was distributed for information provided through collection member, neighbor, friend or any other public review in August 2006. The NPS requirements is used by the Department person or agency. The information, has prepared a Record of Decision of the Interior, Bureau of Indian Affairs together with specific documents, is (ROD) on the Study to document the (BIA), to determine heirs and divide any used to determine if the decedent decision made, the background of the funds held by the BIA for an Indian owned a trust estate, to prepare a project, other alternatives considered, decedent and to divide the decedent’s probate package and to distribute estate the basis for the decision, the trust and restricted real property. The assets. Respondents must inform the environmentally preferable alternative, information is specifically used by the BIA if any of the required information and the public involvement in the BIA in: or documents are not available. decision-making process. (a) Instructing an individual in Respondents: Possible respondents The 1998 Omnibus Parks starting the probate process; include: Individual tribal members, Management Act (Pub. L. 105–391
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§ 303) mandates that each Special ADDRESSES: Tim Bemisderfer, Planning consideration, the deadline for Resources Study (SRS) identify the and Compliance Division, Southeast responses is December 21, 2006. alternative or combination of Region, National Park Service, 100 Comments on the adequacy of responses alternatives which would, in the Alabama Street SW., 1924 Building, may be filed with the Commission by professional judgment of the Director of Atlanta, Georgia 30303. An electronic January 16, 2007. For further the NPS, be ‘‘most effective and efficient copy of the Final EIS and ROD are information concerning the conduct of in protecting significant resources and available on the internet at http:// these reviews and rules of general providing for public enjoyment.’’ The parkplanning.nps.gov. application, consult the Commission’s Study identifies Alternative B in the FOR FURTHER INFORMATION CONTACT: Tim Rules of Practice and Procedure, part Study as the environmentally preferred Bemisderfer, 404–562–3124, extension 201, subparts A through E (19 CFR part alternative and most effective and 693. 201), and part 207, subparts A, D, E, and efficient alternative because it preserves F (19 CFR part 207). SUPPLEMENTARY INFORMATION: A copy of more of the site’s archeological EFFECTIVE DATE: November 1, 2006. resources in an undisturbed condition the ROD can be obtained via the Internet FOR FURTHER INFORMATION CONTACT: and minimizes capital expenditures and by visiting the NPS Planning Environmental and Public Comment Mary Messer (202–205–3193), Office of long-term operating costs. Investigations, U.S. International Trade Under Alternative B, the historic System Web site at http:// Commission, 500 E Street SW., significance of Fort King would be parkplanning.nps.gov or by calling 404– Washington, DC 20436. Hearing- communicated to visitors primarily 562–3124, extension 693. impaired persons can obtain through self-guided interpretive trails, The responsible official for the FEIS is information on this matter by contacting wayside exhibits, and brochures. The Patricia A. Hooks, Regional Director, the Commission’s TDD terminal on 202– park would not have a permanent on- Southeast Region, National Park 205–1810. Persons with mobility site staff. Guided tours and live Service, 100 Alabama Street SW., 1924 impairments who will need special interpretation programs for school Building, Atlanta, Georgia 30303. assistance in gaining access to the groups and special events would be Dated: September 29, 2006. Commission should contact the Office provided by volunteers on a case by Patricia A. Hooks, of the Secretary at 202–205–2000. case basis. The site’s existing wooded Regional Director, Southeast Region. General information concerning the landscape would remain predominantly [FR Doc. 06–9002 Filed 10–31–06; 8:45 am] Commission may also be obtained by unchanged. Pedestrian trails would be BILLING CODE 4310–70–M accessing its internet server (http:// cleared by vegetation and lightly graded. www.usitc.gov). The public record for Trees and other woody vegetation these reviews may be viewed on the immediately surrounding the fort Commission’s electronic docket (EDIS) location would be thinned or removed INTERNATIONAL TRADE at http://edis.usitc.gov. for interpretive purposes. COMMISSION The Federal government would not SUPPLEMENTARY INFORMATION: [Investigation Nos. 701–TA–402 and 731– Background. On December 10, 2001, the assume ownership of land, impose TA–892 and 893 (Review)] zoning or land use controls, or take Department of Commerce issued a responsibility for permanent funding. Honey From Argentina and China countervailing duty order on imports of Likewise, there would be no direct NPS honey from Argentina (66 FR 63673) ownership or management of resources. AGENCY: United States International and antidumping duty orders on As with other National Historic Trade Commission. imports of honey from Argentina and Landmarks, the NPS could provide ACTION: Institution of five-year reviews China (66 FR 63672, 63670). The technical assistance for general concerning the countervailing duty Commission is conducting reviews to planning, resource management, and order on honey from Argentina and the determine whether revocation of the interpretation. However, overall antidumping duty orders on honey from orders would be likely to lead to management of the Fort King site would Argentina and China. continuation or recurrence of material be administered by one or more local injury to the domestic industry within SUMMARY: entities. The Commission hereby gives a reasonably foreseeable time. It will The Study also presented in detail a notice that it has instituted reviews assess the adequacy of interested party No Action and two Action Alternatives pursuant to section 751(c) of the Tariff responses to this notice of institution to that describe different ways of Act of 1930 (19 U.S.C. 1675(c)) (the Act) determine whether to conduct full commemorating, interpreting, and to determine whether revocation of the reviews or expedited reviews. The preserving resources associated with countervailing duty order on honey Commission’s determinations in any Fort King. All alternatives are described from Argentina and the antidumping expedited reviews will be based on the in detail in the Study. duty orders on honey from Argentina facts available, which may include Alternative B provides a broad range and China would be likely to lead to information provided in response to this of public benefits such as improved continuation or recurrence of material notice. public access, long-term preservation of injury. Pursuant to section 751(c)(2) of Definitions. The following definitions archeological resources, and increased the Act, interested parties are requested apply to these reviews: visitor awareness of the site’s national to respond to this notice by submitting (1) Subject Merchandise is the class or significance while minimizing capital the information specified below to the kind of merchandise that is within the 1 expenditures and long-term operating Commission; to be assured of scope of the five-year reviews, as costs. defined by the Department of 1 1 No response to this request for information is Commerce. DATES: On September 14, 2006, the required if a currently valid Office of Management Regional Director, Southeast Region, and Budget (OMB) number is not displayed; the OMB number is 3117–0016/USITC No. 07–5–162, regarding the accuracy of this burden estimate to NPS signed the ROD for the SRS and expiration date June 30, 2008. Public reporting the Office of Investigations, U.S. International Trade Environmental Impact Statement (EIS) burden for the request is estimated to average 10 Commission, 500 E Street, SW., Washington, DC for Fort King. hours per response. Please send comments 20436.
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(2) The Subject Countries in these designated agency ethics official has the notice of institution and whether the reviews are Argentina and China. advised that a five-year review is the Commission should conduct expedited (3) The Domestic Like Product is the ‘‘same particular matter’’ as the or full reviews. The deadline for filing domestically produced product or underlying original investigation for such comments is January 16, 2007. All products which are like, or in the purposes of 19 CFR 201.15 and 18 written submissions must conform with absence of like, most similar in U.S.C. 207, the post employment statute the provisions of sections 201.8 and characteristics and uses with, the for Federal employees. Former 207.3 of the Commission’s rules and any Subject Merchandise. In its original employees may seek informal advice submissions that contain BPI must also determinations, the Commission found from Commission ethics officials with conform with the requirements of that there was one Domestic Like respect to this and the related issue of sections 201.6 and 207.7 of the Product consisting of all honey, whether the employee’s participation Commission’s rules. The Commission’s consistent with Commerce’s scope. was ‘‘personal and substantial.’’ rules do not authorize filing of (4) The Domestic Industry is the U.S. However, any informal consultation will submissions with the Secretary by producers as a whole of the Domestic not relieve former employees of the facsimile or electronic means, except to Like Product, or those producers whose obligation to seek approval to appear the extent permitted by section 201.8 of collective output of the Domestic Like from the Commission under its rule the Commission’s rules, as amended, 67 Product constitutes a major proportion 201.15. For ethics advice, contact Carol FR 68036 (November 8, 2002). Also, in of the total domestic production of the McCue Verratti, Deputy Agency Ethics accordance with sections 201.16(c) and product. In its original determinations, Official, at 202–205–3088. 207.3 of the Commission’s rules, each the Commission found a single Limited disclosure of business document filed by a party to the reviews Domestic Industry consisting of the U.S. proprietary information (BPI) under an must be served on all other parties to producers of honey, both raw and administrative protective order (APO) the reviews (as identified by either the processed. The Commission found that and APO service list. Pursuant to public or APO service list as packers, who produce processed honey, section 207.7(a) of the Commission’s appropriate), and a certificate of service as well as beekeepers, who produce raw rules, the Secretary will make BPI must accompany the document (if you honey, should be treated as U.S. submitted in these reviews available to are not a party to the reviews you do not producers. However, the Commission authorized applicants under the APO need to serve your response). excluded two packers and one issued in the reviews, provided that the Inability to provide requested beekeeper/packer from the Domestic application is made no later than 21 information. Pursuant to section Industry pursuant to the related parties days after publication of this notice in 207.61(c) of the Commission’s rules, any provision. the Federal Register. Authorized interested party that cannot furnish the (5) The Order Date is the date that the applicants must represent interested information requested by this notice in countervailing duty and antidumping parties, as defined in 19 U.S.C. 1677(9), the requested form and manner shall duty orders under review became who are parties to the reviews. A notify the Commission at the earliest effective. In these reviews, the Order separate service list will be maintained possible time, provide a full explanation Date is December 10, 2001. by the Secretary for those parties of why it cannot provide the requested (6) An Importer is any person or firm authorized to receive BPI under the information, and indicate alternative engaged, either directly or through a APO. forms in which it can provide parent company or subsidiary, in Certification. Pursuant to section equivalent information. If an interested importing the Subject Merchandise into 207.3 of the Commission’s rules, any party does not provide this notification the United States from a foreign person submitting information to the (or the Commission finds the manufacturer or through its selling Commission in connection with these explanation provided in the notification agent. reviews must certify that the inadequate) and fails to provide a Participation in the reviews and information is accurate and complete to complete response to this notice, the public service list. Persons, including the best of the submitter’s knowledge. In Commission may take an adverse industrial users of the Subject making the certification, the submitter inference against the party pursuant to Merchandise and, if the merchandise is will be deemed to consent, unless section 776(b) of the Act in making its sold at the retail level, representative otherwise specified, for the determinations in the reviews. consumer organizations, wishing to Commission, its employees, and Information to be Provided in participate in the reviews as parties contract personnel to use the Response to this Notice of Institution: If must file an entry of appearance with information provided in any other you are a domestic producer, union/ the Secretary to the Commission, as reviews or investigations of the same or worker group, or trade/business provided in section 201.11(b)(4) of the comparable products which the association; import/export Subject Commission’s rules, no later than 21 Commission conducts under Title VII of Merchandise from more than one days after publication of this notice in the Act, or in internal audits and Subject Country; or produce Subject the Federal Register. The Secretary will investigations relating to the programs Merchandise in more than one Subject maintain a public service list containing and operations of the Commission Country, you may file a single response. the names and addresses of all persons, pursuant to 5 U.S.C. Appendix If you do so, please ensure that your or their representatives, who are parties 3. Written submissions. Pursuant to response to each question includes the to the reviews. section 207.61 of the Commission’s information requested for each pertinent Former Commission employees who rules, each interested party response to Subject Country. As used below, the are seeking to appear in Commission this notice must provide the information term ‘‘firm’’ includes any related firms. five-year reviews are reminded that they specified below. The deadline for filing (1) The name and address of your firm are required, pursuant to 19 CFR 201.15, such responses is December 21, 2006. or entity (including World Wide Web to seek Commission approval if the Pursuant to section 207.62(b) of the address if available) and name, matter in which they are seeking to Commission’s rules, eligible parties (as telephone number, fax number, and e- appear was pending in any manner or specified in Commission rule mail address of the certifying official. form during their Commission 207.62(b)(1)) may also file comments (2) A statement indicating whether employment. The Commission’s concerning the adequacy of responses to your firm/entity is a U.S. producer of
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the Domestic Like Product, a U.S. union transfers of the Domestic Like Product each Subject Country since the Order or worker group, a U.S. importer of the produced in your U.S. plant(s). Date, and significant changes, if any, Subject Merchandise, a foreign producer (8) If you are a U.S. importer or a that are likely to occur within a or exporter of the Subject Merchandise, trade/business association of U.S. reasonably foreseeable time. Supply a U.S. or foreign trade or business importers of the Subject Merchandise conditions to consider include association, or another interested party from the Subject Country(ies), provide technology; production methods; (including an explanation). If you are a the following information on your development efforts; ability to increase union/worker group or trade/business firm’s(s’) operations on that product production (including the shift of association, identify the firms in which during calendar year 2005 (report production facilities used for other your workers are employed or which are quantity data in pounds and value data products and the use, cost, or members of your association. in U.S. dollars). If you are a trade/ availability of major inputs into (3) A statement indicating whether business association, provide the production); and factors related to the your firm/entity is willing to participate information, on an aggregate basis, for ability to shift supply among different in these reviews by providing the firms which are members of your national markets (including barriers to information requested by the association. importation in foreign markets or Commission. (a) The quantity and value (landed, changes in market demand abroad). (4) A statement of the likely effects of duty-paid but not including Demand conditions to consider include the revocation of the countervailing antidumping or countervailing duties) end uses and applications; the existence duty and antidumping duty orders on of U.S. imports and, if known, an and availability of substitute products; the Domestic Industry in general and/or estimate of the percentage of total U.S. and the level of competition among the your firm/entity specifically. In your imports of Subject Merchandise from Domestic Like Product produced in the response, please discuss the various each Subject Country accounted for by United States, Subject Merchandise factors specified in section 752(a) of the your firm’s(s’) imports; produced in each Subject Country, and Act (19 U.S.C. 1675a(a)) including the (b) the quantity and value (f.o.b. U.S. such merchandise from other countries. likely volume of subject imports, likely port, including antidumping and/or (11) (OPTIONAL) A statement of price effects of subject imports, and countervailing duties) of U.S. whether you agree with the above likely impact of imports of Subject commercial shipments of Subject definitions of the Domestic Like Product Merchandise on the Domestic Industry. Merchandise imported from the Subject and Domestic Industry; if you disagree (5) A list of all known and currently Country(ies); and with either or both of these definitions, (c) the quantity and value (f.o.b. U.S. operating U.S. producers of the please explain why and provide port, including antidumping and/or Domestic Like Product. Identify any alternative definitions. known related parties and the nature of countervailing duties) of U.S. internal the relationship as defined in section consumption/company transfers of Authority: These reviews are being 771(4)(B) of the Act (19 U.S.C. Subject Merchandise imported from the conducted under authority of title VII of the Tariff Act of 1930; this notice is published 1677(4)(B)). Subject Country(ies). (9) If you are a producer, an exporter, pursuant to section 207.61 of the (6) A list of all known and currently Commission’s rules. operating U.S. importers of the Subject or a trade/business association of Merchandise and producers of the producers or exporters of the Subject By order of the Commission. Subject Merchandise in each Subject Merchandise in the Subject Issued: October 25, 2006. Country that currently export or have Country(ies), provide the following Marilyn R. Abbott, exported Subject Merchandise to the information on your firm’s(s’) Secretary to the Commission. United States or other countries since operations on that product during [FR Doc. E6–18309 Filed 10–31–06; 8:45 am] the Order Date. calendar year 2005 (report quantity data BILLING CODE 7020–02–P (7) If you are a U.S. producer of the in pounds and value data in U.S. Domestic Like Product, provide the dollars, landed and duty-paid at the following information on your firm’s U.S. port but not including antidumping INTERNATIONAL TRADE operations on that product during or countervailing duties). If you are a COMMISSION calendar year 2005 (report quantity data trade/business association, provide the [Investigation Nos. 731–TA–919 and 920 in pounds and value data in U.S. information, on an aggregate basis, for (Review)] dollars, f.o.b. plant). If you are a union/ the firms which are members of your worker group or trade/business association. Welded Large Diameter Line Pipe From association, provide the information, on (a) Production (quantity) and, if Japan and Mexico an aggregate basis, for the firms in known, an estimate of the percentage of which your workers are employed/ total production of Subject Merchandise AGENCY: United States International which are members of your association. in each Subject Country accounted for Trade Commission. (a) Number of domestic honey- by your firm’s(s’) production; and ACTION: Institution of five-year reviews producing colonies, production and/or (b) the quantity and value of your concerning the antidumping duty orders packing (quantity) and, if known, an firm’s(s’) exports to the United States of on welded large diameter line pipe from estimate of the percentage of total U.S. Subject Merchandise and, if known, an Japan and Mexico. production and/or packing of the estimate of the percentage of total Domestic Like Product accounted for by exports to the United States of Subject SUMMARY: The Commission hereby gives your firm’s(s’) production and/or Merchandise from each Subject Country notice that it has instituted reviews packing; accounted for by your firm’s(s’) exports. pursuant to section 751(c) of the Tariff (b) the quantity and value of U.S. (10) Identify significant changes, if Act of 1930 (19 U.S.C. 1675(c)) (the Act) commercial shipments of the Domestic any, in the supply and demand to determine whether revocation of the Like Product produced in your U.S. conditions or business cycle for the antidumping duty orders on welded plant(s); and Domestic Like Product that have large diameter line pipe from Japan and (c) the quantity and value of U.S. occurred in the United States or in the Mexico would be likely to lead to internal consumption/company market for the Subject Merchandise in continuation or recurrence of material
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injury. Pursuant to section 751(c)(2) of reviews or expedited reviews. The five-year reviews are reminded that they the Act, interested parties are requested Commission’s determinations in any are required, pursuant to 19 CFR 201.15, to respond to this notice by submitting expedited reviews will be based on the to seek Commission approval if the the information specified below to the facts available, which may include matter in which they are seeking to Commission; 1 to be assured of information provided in response to this appear was pending in any manner or consideration, the deadline for notice. form during their Commission responses is December 21, 2006. Definitions. The following definitions employment. The Commission’s Comments on the adequacy of responses apply to these reviews: designated agency ethics official has may be filed with the Commission by (1) Subject Merchandise is the class or advised that a five-year review is the January 16, 2007. For further kind of merchandise that is within the ‘‘same particular matter’’ as the information concerning the conduct of scope of the five-year reviews, as underlying original investigation for these reviews and rules of general defined by the Department of purposes of 19 CFR 201.15 and 18 application, consult the Commission’s Commerce. U.S.C. 207, the post employment statute Rules of Practice and Procedure, part (2) The Subject Countries in these for Federal employees. Former 201, subparts A through E (19 CFR part reviews are Japan and Mexico. employees may seek informal advice 201), and part 207, subparts A, D, E, and (3) The Domestic Like Product is the from Commission ethics officials with F (19 CFR part 207). domestically produced product or respect to this and the related issue of DATES: Effective Date: November 1, products which are like, or in the whether the employee’s participation 2006. absence of like, most similar in was ‘‘personal and substantial.’’ characteristics and uses with, the However, any informal consultation will FOR FURTHER INFORMATION CONTACT: Subject Merchandise. In its original not relieve former employees of the Mary Messer (202–205–3193), Office of determinations, the Commission found obligation to seek approval to appear Investigations, U.S. International Trade a single Domestic Like Product from the Commission under its rule Commission, 500 E Street SW., consisting of certain welded large 201.15. For ethics advice, contact Carol Washington, DC 20436. Hearing- diameter line pipe, coextensive with McCue Verratti, Deputy Agency Ethics impaired persons can obtain Commerce’s scope. Official, at 202–205–3088. information on this matter by contacting (4) The Domestic Industry is the U.S. Limited disclosure of business the Commission’s TDD terminal on 202– producers as a whole of the Domestic proprietary information (BPI) under an 205–1810. Persons with mobility Like Product, or those producers whose administrative protective order (APO) impairments who will need special collective output of the Domestic Like and APO service list. Pursuant to assistance in gaining access to the Product constitutes a major proportion section 207.7(a) of the Commission’s Commission should contact the Office of the total domestic production of the rules, the Secretary will make BPI of the Secretary at 202–205–2000. product. In its original determinations, submitted in these reviews available to General information concerning the the Commission found a single authorized applicants under the APO Commission may also be obtained by Domestic Industry consisting of all issued in the reviews, provided that the accessing its Internet server (http:// domestic producers of certain welded application is made no later than 21 www.usitc.gov). The public record for large diameter line pipe. days after publication of this notice in these reviews may be viewed on the (5) The Order Dates are the dates that the Federal Register. Authorized Commission’s electronic docket (EDIS) the antidumping duty orders under applicants must represent interested at http://edis.usitc.gov. review became effective. In these parties, as defined in 19 U.S.C. 1677(9), SUPPLEMENTARY INFORMATION: reviews, the Order Dates are December who are parties to the reviews. A Background. On December 6, 2001, the 6, 2001 (Japan) and February 27, 2002 separate service list will be maintained Department of Commerce issued an (Mexico). by the Secretary for those parties antidumping duty order on imports of (6) An Importer is any person or firm authorized to receive BPI under the welded large diameter line pipe from engaged, either directly or through a APO. Japan (66 FR 63368). On February 27, parent company or subsidiary, in Certification. Pursuant to section 2002, the Department of Commerce importing the Subject Merchandise into 207.3 of the Commission’s rules, any issued an antidumping duty order on the United States from a foreign person submitting information to the imports of welded large diameter line manufacturer or through its selling Commission in connection with these pipe from Mexico (67 FR 8937). The agent. reviews must certify that the Commission is conducting reviews to Participation in the reviews and information is accurate and complete to determine whether revocation of the public service list. Persons, including the best of the submitter’s knowledge. In orders would be likely to lead to industrial users of the Subject making the certification, the submitter continuation or recurrence of material Merchandise and, if the merchandise is will be deemed to consent, unless injury to the domestic industry within sold at the retail level, representative otherwise specified, for the a reasonably foreseeable time. It will consumer organizations, wishing to Commission, its employees, and assess the adequacy of interested party participate in the reviews as parties contract personnel to use the responses to this notice of institution to must file an entry of appearance with information provided in any other determine whether to conduct full the Secretary to the Commission, as reviews or investigations of the same or provided in section 201.11(b)(4) of the comparable products which the 1 No response to this request for information is Commission’s rules, no later than 21 Commission conducts under Title VII of required if a currently valid Office of Management days after publication of this notice in the Act, or in internal audits and and Budget (OMB) number is not displayed; the OMB number is 3117–0016/USITC No. 07–5–163, the Federal Register. The Secretary will investigations relating to the programs expiration date June 30, 2008. Public reporting maintain a public service list containing and operations of the Commission burden for the request is estimated to average 10 the names and addresses of all persons, pursuant to 5 U.S.C. Appendix 3. hours per response. Please send comments or their representatives, who are parties Written submissions. Pursuant to regarding the accuracy of this burden estimate to the Office of Investigations, U.S. International Trade to the reviews. section 207.61 of the Commission’s Commission, 500 E Street, SW., Washington, DC Former Commission employees who rules, each interested party response to 20436. are seeking to appear in Commission this notice must provide the information
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specified below. The deadline for filing (1) The name and address of your firm Like Product produced in your U.S. such responses is December 21, 2006. or entity (including World Wide Web plant(s); and Pursuant to section 207.62(b) of the address if available) and name, (c) The quantity and value of U.S. Commission’s rules, eligible parties (as telephone number, fax number, and E- internal consumption/company specified in Commission rule mail address of the certifying official. transfers of the Domestic Like Product 207.62(b)(1)) may also file comments (2) A statement indicating whether produced in your U.S. plant(s). concerning the adequacy of responses to your firm/entity is a U.S. producer of (8) If you are a U.S. importer or a the notice of institution and whether the the Domestic Like Product, a U.S. union trade/business association of U.S. Commission should conduct expedited or worker group, a U.S. importer of the importers of the Subject Merchandise or full reviews. The deadline for filing Subject Merchandise, a foreign producer from the Subject Country(ies), provide such comments is January 16, 2007. All or exporter of the Subject Merchandise, the following information on your written submissions must conform with a U.S. or foreign trade or business firm’s(s’) operations on that product the provisions of sections 201.8 and association, or another interested party during calendar year 2005 (report 207.3 of the Commission’s rules and any (including an explanation). If you are a quantity data in short tons and value submissions that contain BPI must also union/worker group or trade/business data in U.S. dollars). If you are a trade/ conform with the requirements of association, identify the firms in which business association, provide the sections 201.6 and 207.7 of the your workers are employed or which are information, on an aggregate basis, for Commission’s rules. The Commission’s members of your association. the firms which are members of your rules do not authorize filing of (3) A statement indicating whether association. submissions with the Secretary by your firm/entity is willing to participate (a) The quantity and value (landed, facsimile or electronic means, except to in these reviews by providing duty-paid but not including the extent permitted by section 201.8 of information requested by the antidumping duties) of U.S. imports the Commission’s rules, as amended, 67 Commission. and, if known, an estimate of the FR 68036 (November 8, 2002). Also, in (4) A statement of the likely effects of percentage of total U.S. imports of accordance with sections 201.16(c) and the revocation of the antidumping duty Subject Merchandise from each Subject 207.3 of the Commission’s rules, each orders on the Domestic Industry in Country accounted for by your firm’s(s’) document filed by a party to the reviews general and/or your firm/entity imports; must be served on all other parties to specifically. In your response, please (b) the quantity and value (f.o.b. U.S. the reviews (as identified by either the discuss the various factors specified in port, including antidumping duties) of public or APO service list as section 752(a) of the Act (19 U.S.C. U.S. commercial shipments of Subject appropriate), and a certificate of service 1675a(a)) including the likely volume of Merchandise imported from each must accompany the document (if you subject imports, likely price effects of Subject Country; and are not a party to the reviews you do not subject imports, and likely impact of (c) the quantity and value (f.o.b. U.S. need to serve your response). imports of Subject Merchandise on the port, including antidumping duties) of Inability to provide requested Domestic Industry. U.S. internal consumption/company information. Pursuant to section (5) A list of all known and currently transfers of Subject Merchandise 207.61(c) of the Commission’s rules, any operating U.S. producers of the imported from each Subject Country. interested party that cannot furnish the Domestic Like Product. Identify any (9) If you are a producer, an exporter, information requested by this notice in known related parties and the nature of or a trade/business association of the requested form and manner shall the relationship as defined in section producers or exporters of the Subject notify the Commission at the earliest 771(4)(B) of the Act (19 U.S.C. Merchandise in the Subject possible time, provide a full explanation 1677(4)(B)). Country(ies), provide the following of why it cannot provide the requested (6) A list of all known and currently information on your firm’s(s’) information, and indicate alternative operating U.S. importers of the Subject operations on that product during forms in which it can provide Merchandise and producers of the calendar year 2005 (report quantity data equivalent information. If an interested Subject Merchandise in each Subject in short tons and value data in U.S. party does not provide this notification Country that currently export or have dollars, landed and duty-paid at the (or the Commission finds the exported Subject Merchandise to the U.S. port but not including antidumping explanation provided in the notification United States or other countries since duties). If you are a trade/business inadequate) and fails to provide a the Order Dates. association, provide the information, on complete response to this notice, the (7) If you are a U.S. producer of the an aggregate basis, for the firms which Commission may take an adverse Domestic Like Product, provide the are members of your association. inference against the party pursuant to following information on your firm’s (a) Production (quantity) and, if section 776(b) of the Act in making its operations on that product during known, an estimate of the percentage of determinations in the reviews. calendar year 2005 (report quantity data total production of Subject Merchandise Information to be Provided in in short tons and value data in U.S. in each Subject Country accounted for Response to this Notice of Institution: If dollars, f.o.b. plant). If you are a union/ by your firm’s(s’) production; and you are a domestic producer, union/ worker group or trade/business (b) the quantity and value of your worker group, or trade/business association, provide the information, on firm’s(s’) exports to the United States of association; import/export Subject an aggregate basis, for the firms in Subject Merchandise and, if known, an Merchandise from more than one which your workers are employed/ estimate of the percentage of total Subject Country; or produce Subject which are members of your association. exports to the United States of Subject Merchandise in more than one Subject (a) Production (quantity) and, if Merchandise from each Subject Country Country, you may file a single response. known, an estimate of the percentage of accounted for by your firm’s(s’) exports. If you do so, please ensure that your total U.S. production of the Domestic (10) Identify significant changes, if response to each question includes the Like Product accounted for by your any, in the supply and demand information requested for each pertinent firm’s(s’) production; conditions or business cycle for the Subject Country. As used below, the (b) The quantity and value of U.S. Domestic Like Product that have term ‘‘firm’’ includes any related firms. commercial shipments of the Domestic occurred in the United States or in the
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market for the Subject Merchandise in Examinations (Advisory Committee) to examination questions is intertwined each Subject Country since the Order assist in its examination duties with the jointly administered Dates, and significant changes, if any, mandated by ERISA. The Joint Board examination program. Under that that are likely to occur within a published a Federal Register notice at program, the participating actuarial reasonably foreseeable time. Supply 71 FR 30649, May 30, 2006, inviting organizations draft questions and conditions to consider include membership on the Advisory submit them to the Advisory Committee technology; production methods; Committee. That notice did not reflect for its consideration. After review of the development efforts; ability to increase the Joint Board’s decision to extend the draft questions, the Advisory Committee production (including the shift of appointment term of current Advisory selects appropriate questions, modifies production facilities used for other Committee members. Therefore, this them as it deems desirable, and then products and the use, cost, or document withdraws the previous prepares one or more drafts of actuarial availability of major inputs into notice and gives new notice inviting examinations to be recommended to the production); and factors related to the membership. In accordance with the Joint Board. (In addition to revisions of ability to shift supply among different Joint Board’s decision, the appointment the draft questions, it may be necessary national markets (including barriers to term of current Advisory Committee for the Advisory Committee to originate importation in foreign markets or members will expire on February 28, questions and include them in what is changes in market demand abroad). 2007. This notice describes the recommended.) Demand conditions to consider include Advisory Committee and invites 4. Membership end uses and applications; the existence applications from those interested in and availability of substitute products; serving on it. The Joint Board will take steps to ensure maximum practicable and the level of competition among the 1. General Domestic Like Product produced in the representation on the Advisory United States, Subject Merchandise To qualify for enrollment to perform Committee of points of view regarding produced in each Subject Country, and actuarial services under ERISA, an the Joint Board’s actuarial examination such merchandise from other countries. applicant must have requisite pension extant in the community at large and (11) (OPTIONAL) A statement of actuarial experience and satisfy from nominees provided by the whether you agree with the above knowledge requirements as provided in actuarial organizations. Since the definitions of the Domestic Like Product the Joint Board’s regulations. The members of the actuarial organizations comprise a large segment of the and Domestic Industry; if you disagree knowledge requirements may be actuarial profession, this appointive with either or both of these definitions, satisfied by successful completion of process ensures expression of a broad please explain why and provide Joint Board examinations in basic spectrum of viewpoints. All members of alternative definitions. actuarial mathematics and methodology and in actuarial mathematics and the Advisory Committee will be Authority: These reviews are being methodology relating to pension plans expected to act in the public interest, conducted under authority of title VII of the that is, to produce examinations that Tariff Act of 1930; this notice is published qualifying under ERISA. The Joint Board, the Society of will help ensure a level of competence pursuant to section 207.61 of the among those who will be accorded Commission’s rules. Actuaries, and the American Society of Pension Professionals & Actuaries enrollment to perform actuarial services By order of the Commission. jointly offer examinations acceptable to under ERISA. Issued: October 25, 2006. the Joint Board for enrollment purposes Membership normally will be limited Marilyn R. Abbott, and acceptable to those actuarial to actuaries previously enrolled by the Secretary to the Commission. organizations as part of their respective Joint Board. However, individuals [FR Doc. E6–18311 Filed 10–31–06; 8:45 am] examination programs. having academic or other special BILLING CODE 7020–02–P qualifications of particular value for the 2. Programs Advisory Committee’s work also will be The Advisory Committee plays an considered for membership. Membership terms are at the sole JOINT BOARD FOR THE integral role in the examination program discretion of the inviting authority and ENROLLMENT OF ACTUARIES by assisting the Joint Board in offering examinations that will enable are not necessarily concurrent with the Advisory Committee on Actuarial examination candidates to demonstrate duration of the Advisory Committee Examinations; Invitation for the knowledge necessary to qualify for charter. The Advisory Committee will Membership on Advisory Committee enrollment. The purpose of the meet about four times a year. Advisory Advisory Committee, as renewed, will Committee members should be prepared AGENCY: Joint Board for the Enrollment remain that of assisting the Joint Board to devote from 125 to 175 hours, of Actuaries. in fulfilling this responsibility. The including meeting time, to the work of ACTION: Withdrawal of notice inviting Advisory Committee will discuss the the Advisory Committee over the course membership on advisory committee; philosophy of such examinations, will of a year. Members will be reimbursed notice inviting membership on advisory review topics appropriately covered in for travel expenses incurred, in committee. them, and will make recommendations accordance with applicable government relative thereto. It also will recommend regulations. SUMMARY: The Joint Board for the to the Joint Board proposed examination Actuaries interested in serving on the Enrollment of Actuaries (Joint Board), questions. The Joint Board will maintain Advisory Committee should express established under the Employee liaison with the Advisory Committee in their interest and fully state their Retirement Income Security Act of 1974 this process to ensure that its views on qualifications in a letter addressed to: (ERISA), is responsible for the examination content are understood. Joint Board for the Enrollment of enrollment of individuals who wish to Actuaries, c/o Internal Revenue Service, perform actuarial services under ERISA. 3. Function Attn: Executive Director SE: OPR, Room The Joint Board has established an The manner in which the Advisory 7238, 1111 Constitution Avenue, NW., Advisory Committee on Actuarial Committee functions in preparing Washington, DC 20224.
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Any questions may be directed to the Deputy Assistant Administrator, Office Dated: October 25, 2006. Joint Board’s Executive Director at 202– of Diversion Control, Drug Enforcement Joseph T. Rannazzisi, 622–8229. Administration, that the requirements Deputy Assistant Administrator, Office of The deadline for accepting for such registration pursuant to 21 Diversion Control, Drug Enforcement applications is December 15, 2006. U.S.C. 958(a), 21 U.S.C. 823(a), and 21 Administration. Dated: October 11, 2006. CFR 1301.34(b), (c), (d), (e), and (f) are [FR Doc. E6–18376 Filed 10–31–06; 8:45 am] Patrick W. McDonough, satisfied. BILLING CODE 4410–09–P Executive Director, Joint Board for the Dated: October 25, 2006. Enrollment of Actuaries. Joseph T. Rannazzisi, DEPARTMENT OF JUSTICE [FR Doc. 06–8992 Filed 10–31–06; 8:45 am] Deputy Assistant Administrator, Office of BILLING CODE 4830–01–P Diversion Control, Drug Enforcement Drug Enforcement Administration Administration. Manufacturer of Controlled DEPARTMENT OF JUSTICE [FR Doc. E6–18431 Filed 10–31–06; 8:45 am] Substances; Notice of Application BILLING CODE 4410–09–P Drug Enforcement Administration Pursuant to § 1301.33(a) of Title 21 of the Code of Federal Regulations (CFR), Importer of Controlled Substances; DEPARTMENT OF JUSTICE this is notice that on August 28, 2006, Notice of Application Cambrex Charles City, Inc., 1205 11th Drug Enforcement Administration Street, Charles City, Iowa 50616, made Prior to issuing a registration under 21 application by letter to the Drug U.S.C. 952(a)(2)(B), and in accordance Importer of Controlled Substances; Enforcement Administration (DEA) to with 21 CFR 1301.34(a), this is notice Notice of Registration be registered as a bulk manufacturer of that on July 25, 2006, Alcan Packaging- Sufentanil (9740), a basic class of Bethlehem, 2400 Baglyos Circle, By notice dated July 25, 2006, and controlled substance listed in schedule Bethlehem, Pennsylvania, 18020, has published in the Federal Register on II. made application to the Drug July 31, 2006, (71 FR 43210), Aptuit, The company plans to manufacture Enforcement Administration (DEA) to 10245 Hickman Mills Drive, Kansas the listed controlled substance in bulk be registered as an importer of Nabilone City, Missouri 64137, made application for distribution to its customers. (7379), a basic class of controlled by letter to the Drug Enforcement Any other such applicant and any substance listed in schedule II. Administration (DEA) to be registered as person who is presently registered with The company plans to import the DEA to manufacture such a substance listed controlled substance for an importer of Marihuana (7360), a basic class of controlled substance listed in may file comments or objections to the packaging and for distribution. issuance of the proposed registration Any manufacturer who is presently, schedule I. pursuant to 21 CFR 1301.33(a). or is applying to be, registered with DEA The company plans to import a Any such written comments or to manufacture such basic class of finished pharmaceutical product objections being sent via regular mail controlled substance may file comments containing cannabis extracts in dosage should be addressed, in quintuplicate, or objections to the issuance of the form for packaging for a clinical trial to the Deputy Assistant Administrator, proposed registration and may, at the study. Office of Diversion Control, Drug same time, file a written request for a No comments or objections have been Enforcement Administration, hearing on such application pursuant to Washington, DC 20537, Attention: DEA 21 CFR 1301.43 and in such form as received. DEA has considered the factors in 21 U.S.C. 823(a) and 952(a) Federal Register Representative/ODL; or prescribed by 21 CFR 1316.47. any being sent via express mail should Any such written comments or and determined that the registration of be sent to DEA Headquarters, Attention: objections being sent via regular mail Aptuit to import the basic class of DEA Federal Register Representative/ should be addressed, in quintuplicate, controlled substance is consistent with ODL, 2401 Jefferson-Davis Highway, to the Deputy Assistant Administrator, the public interest and with United Alexandria, Virginia 22301; and must be Office of Diversion Control, Drug States obligations under international filed no later than January 2, 2007. Enforcement Administration, treaties, conventions, or protocols in Washington, DC 20537, Attention: DEA effect on May 1, 1971, at this time. DEA Dated: October 25, 2006. Federal Register Representative/ODL; or has investigated Aptuit to ensure that Joseph T. Rannazzisi, any being sent via express mail should the company’s registration is consistent Deputy Assistant Administrator, Office of be sent to DEA Headquarters, Attention: with the public interest. The Diversion Control, Drug Enforcement DEA Federal Register Representative/ investigation has included inspection Administration. ODL, 2401 Jefferson-Davis Highway, and testing of the company’s physical [FR Doc. E6–18375 Filed 10–31–06; 8:45 am] Alexandria, Virginia 22301; and must be security systems, verification of the BILLING CODE 4410–09–P filed no later than December 1, 2006. company’s compliance with state and This procedure is to be conducted local laws, and a review of the simultaneously with and independent DEPARTMENT OF JUSTICE company’s background and history. of the procedures described in 21 CFR Therefore, pursuant to 21 U.S.C. 952(a) 1301.34(b), (c), (d), (e), and (f). As noted Drug Enforcement Administration and 958(a), and in accordance with 21 in a previous notice published in the CFR 1301.34, the above named company Importer of Controlled Substances; Federal Register on September 23, 1975, Notice of Registration (40 FR 43745–46), all applicants for is granted registration as an importer of registration to import a basic class of the basic class of controlled substance By notice dated July 26, 2006, and any controlled substance listed in listed published in the Federal Register on schedule I or II are, and will continue August 1, 2006, (71 FR 43526), Kenco to be, required to demonstrate to the VPI, Division of Kenco Group Inc., 350
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Corporate Place, Chattanooga, Tocris Cookson, Inc. to import the basic from is at least fifty years of age. The Tennessee 37419, made application by class of controlled substance is workers in the workers’ firm possess letter to the Drug Enforcement consistent with the public interest and skills that are not easily transferable. Administration (DEA) to be registered as with United States obligations under Competitive conditions within the an importer of Nabilone (7379), a basic international treaties, conventions, or industry are adverse. class of controlled substance listed in protocols in effect on May 1, 1971, at Conclusion schedule II. this time. DEA has investigated Tocris The company plans to import the Cookson, Inc. to ensure that the After careful review of the additional listed controlled substance for company’s registration is consistent facts obtained on reconsideration, I distribution to its customers. with the public interest. The conclude that the requirements of No comments or objections have been investigation has included inspection Section 246 of the Trade Act of 1974, as received. DEA has considered the and testing of the company’s physical amended, have been met for workers at factors in 21 U.S.C. 823(a) and 952(a) security systems, verification of the the subject firm. and determined that the registration of company’s compliance with state and In accordance with the provisions of Kenco VPI to import the basic class of local laws, and a review of the the Act, I make the following controlled substance is consistent with company’s background and history. certification: the public interest and with United Therefore, pursuant to 21 U.S.C. 952(a) All workers of ABB, Inc., Lewisburg, West States obligations under international and 958(a), and in accordance with 21 Virginia, who became totally or partially treaties, conventions, or protocols in CFR 1301.34, the above named company separated from employment on or after effect on May 1, 1971, at this time. DEA is granted registration as an importer of August 28, 2005 through September 28, 2008, has investigated Kenco VPI to ensure the basic class of controlled substance are eligible to apply for adjustment assistance that the company’s registration is listed. under Section 223 of the Trade Act of 1974, consistent with the public interest. The and are also eligible to apply for alternative Dated: October 25, 2006. trade adjustment assistance under Section investigation has included inspection 246 of the Trade Act of 1974. and testing of the company’s physical Joseph T. Rannazzisi, security systems, verification of the Deputy Assistant Administrator, Office of Signed in Washington, DC, this 25th day of company’s compliance with state and Diversion Control, Drug Enforcement October 2006. Administration. local laws, and a review of the Elliott S. Kushner, company’s background and history. [FR Doc. E6–18428 Filed 10–31–06; 8:45 am] Certifying Officer, Division of Trade Therefore, pursuant to 21 U.S.C. 952(a) BILLING CODE 4410–09–P Adjustment Assistance. and 958(a), and in accordance with 21 [FR Doc. E6–18357 Filed 10–31–06; 8:45 am] CFR 1301.34, the above named company BILLING CODE 4510–30–P is granted registration as an importer of DEPARTMENT OF LABOR the basic class of controlled substance Employment and Training listed. DEPARTMENT OF LABOR Administration Dated: October 25, 2006. [TA–W–59,966] Employment and Training Joseph T. Rannazzisi, Administration Deputy Assistant Administrator, Office of ABB, Inc., Lewisburg, WV; Notice of [TA–W–60,167] Diversion Control, Drug Enforcement Revised Determination of Alternative Administration. Trade Adjustment Assistance on Andrew Corporation AFMA; Andrew [FR Doc. E6–18430 Filed 10–31–06; 8:45 am] Reconsideration Facility Massachusetts Division BILLING CODE 4410–09–P Including On-Site Leased Workers of By letter dated October 10, 2006, a Andover Personnel, John Galt representative of the Maintenance Services, MMD Temps, Footbridge DEPARTMENT OF JUSTICE Workers Local Union, No. 1182, Engineering, Sperion, TEK Systems Laborers International Union of North Drug Enforcement Administration and National Engineering Service America (Union), requested Corp, Amesbury, MA; Amended administrative reconsideration Importer of Controlled Substances; Certification Regarding Eligibility To regarding Alternative Trade Adjustment Notice of Registration Apply for Worker Adjustment Assistance (ATAA). The certification for Assistance and Alternative Trade By notice dated July 20, 2006, and Trade Adjustment Assistance was Adjustment Assistance published in the Federal Register on signed on September 28, 2006. The July 28, 2006, (71 FR 42878), Tocris Notice of determination was published In accordance with Section 223 of the Cookson, Inc., 16144 Westwoods in the Federal Register on October 16, Trade Act of 1974 (19 U.S.C. 2273), and Business Park, Ellisville, Missouri 2006 (71 FR 60762). Section 246 of the Trade Act of 1974 (26 63021–4500, made application by The determination stated that a U.S.C. 2813), as amended, the renewal to the Drug Enforcement significant number of workers in the Department of Labor issued a Administration (DEA) to be registered as workers’ firm are not 50 years of age or Certification of Eligibility To Apply for an importer of Tetrahydrocannabinols older. Worker Adjustment Assistance and (7370), a basic class of controlled The Union asserts that a significant Alternative Trade Adjustment substance listed in schedule I. number of workers in the workers’ firm Assistance on October 6, 2006, The company plans to import small are 50 years of age or older and applicable to workers of Andrew quantities of the listed controlled provided a list of workers and their Corporation AFMA, Andrew Facility substance for sale to research facilities. birthdates as support documentation. Massachusetts Division, including on- No comments or objections have been A careful review of the Union’s site leased workers of Andover received. DEA has considered the submissions and previously submitted Personnel, John Galt Services, MMD factors in 21 U.S.C. 823(a) and 952(a) documents reveal that at least five Temps, Footbridge Engineering, and determined that the registration of percent of the workforce at the subject Amesbury, Massachusetts. The notice
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will be published soon in the Federal Section 246 of the Trade Act of 1974 (26 DEPARTMENT OF LABOR Register. U.S.C. 2813), as amended, the At the request of the State agency and Department of Labor issued a Employment and Training the company, the Department reviewed Certification of Eligibility to Apply for Administration the certification for workers of the Worker Adjustment Assistance and subject firm. New information shows Alternative Trade Adjustment [TA–W–59,500] that leased workers of Tek Systems and Assistance on October 13, 2006, Connecticut General Life Insurance National Engineering Service Corp. were applicable to workers of Celestica, employed on-site at the Amesbury, Company (CGLIC), Cigna Healthcare Westminster, Colorado. The notice was Service Operations, Philadelphia, PA; Massachusetts location of Andrew published in the Federal Register on Corporation FMA, Andrew Facility Notice of Negative Determination October 25, 2006 (71 FR 62489). Massachusetts Division. Regarding Application for Based on these findings, the At the request of a company official, Reconsideration Department is amending this the Department reviewed the By application dated August 17, 2006 certification to include leased workers certification for workers of the subject a petitioner requested administrative of Tek Systems and National firm. The workers were engaged in reconsideration of the Department’s Engineering Service Corp. working on- warehousing and distribution negative determination regarding site at Andrew Corporation AFMA, operations. eligibility for workers and former Andrew Facility Massachusetts New information shows that workers workers of the subject firm to apply for Division, Amesbury, Massachusetts. of Securitas Security were employed on- Trade Adjustment Assistance (TAA). The intent of the Department’s The denial notice applicable to workers certification is to include all workers site at the Westminster, Colorado location of Celestica. of Connecticut General Life Insurance employed at Andrew Corporation Company (CGLIC), Cigna Healthcare Based on these findings, the AFMA, Andrew Facility Massachusetts Service Operations, Philadelphia, Department is amending this Division, who were adversely affected Pennsylvania was signed on July 24, by a shift in production to Mexico and certification to include workers of 2006 and published in the Federal China. Securitas Security working on-site at Register on August 14, 2006 (71 FR The amended notice applicable to Celestica, Westminster, Colorado. 46519). TA–W–60,167 is hereby issued as The intent of the Department’s Pursuant to 29 CFR 90.18(c) follows: certification is to include all workers reconsideration may be granted under All workers of Andrew Corporation, employed at Celestica, Westminster, the following circumstances: AFMA, Andrew Facility Massachusetts Colorado who were adversely affected (1) If it appears on the basis of facts Division, including on-site leased workers of Andover Personnel, John Galt Services, MMD by a shift in production to Mexico, not previously considered that the Temps, Footbridge Engineering, Spherion, Canada and Israel. determination complained of was erroneous; Tek Systems and National Engineering The amended notice applicable to Service Corp. who became totally or partially (2) if it appears that the determination TA–W–60,150 is hereby issued as separated from employment on or after complained of was based on a mistake September 26, 2005, through October 6, 2008, follows: in the determination of facts not are eligible to apply for adjustment assistance All workers of Celestica Corporation, previously considered; or under Section 223 of the Trade Act of 1974, including on-site workers of Securitas (3) if in the opinion of the Certifying and are also eligible to apply for alternative Security and on-site leased workers of trade adjustment assistance under Section Officer, a mis-interpretation of facts or 246 of the Trade Act of 1974. Adecco, Westminster, Colorado, who became of the law justified reconsideration of totally or partially separated from the decision. Signed at Washington, DC, this 25th day of employment on or after September 25, 2005, October 2006. The TAA petition filed on behalf of through October 13, 2008, are eligible to workers at Connecticut General Life Richard Church, apply for adjustment assistance under Insurance Company (CGLIC), Cigna Certifying Officer, Division of Trade Section 223 of the Trade Act of 1974, and are Healthcare Service Operations, Adjustment Assistance. also eligible to apply for alternative trade Philadelphia, Pennsylvania engaged in [FR Doc. E6–18359 Filed 10–31–06; 8:45 am] adjustment assistance under Section 246 of computer support for CIGNA’s BILLING CODE 4510–30–P the Trade Act of 1974. Disability Management IT (support, Signed at Washington, DC, this 25th day of basic Application development support, DEPARTMENT OF LABOR October 2006. coding and systems testing, and Richard Church, customer help desk support) was denied because the petitioning workers did not Employment and Training Certifying Officer, Division of Trade Administration Adjustment Assistance. produce an article within the meaning of Section 222 of the Act. [FR Doc. E6–18358 Filed 10–31–06; 8:45 am] [TA–W–60,150] The petitioner contends that the BILLING CODE 4510–30–P Celestica Corporation, Including On- Department erred in its interpretation of Site Workers of Securitas Security, work performed at the subject facility as Including On-Site Leased Workers of providing a service and further conveys Adecco Westminster, Colorado; that workers of the subject firm created Amended Certification Regarding various software for sale or lease to Eligibility To Apply for Worker customers. The petitioner included the Adjustment Assistance and Alternative name of a customer who purchased/ Trade Adjustment Assistance leased Disability Management software from the subject firm, thus concluding In accordance with Section 223 of the that workers of the subject firm were Trade Act of 1974 (19 U.S.C. 2273), and supporting this customer.
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A company official was contacted for article domestically who meet the competitive products with those clarification in regard to the nature of eligibility requirements, or if the group produced at the subject firm. the work performed at the subject of workers are leased workers who The review of the case revealed that facility. The official stated that workers perform their duties at a facility that workers of the subject firm produce of the subject firm were employed by meet the eligibility requirements. printed circuit boards at a plant on Connecticut General Life Insurance The petitioner’s alleges that the work Folsom Street and cable assemblies at a Company (CGLIC) that supports performed by the workers of the subject plant on Pacific Avenue and that CIGNA’s Disability Management firm has been shifted to India. workers are separately identifiable by Business at Intracorp, CIGNA disability The company official stated that product line and location. management company. The official developments for the Audit Plus bill Upon further contact with the subject clarified that Intracorp is not in the review system enhancements or fixes firm’s company official, it was revealed business of manufacturing Disability are currently performed on-site and that the subject firm decreased domestic Management software for sale to third have not been moved abroad. The production of printed circuit boards, parties. Workers of the subject firm official also stated that there are while increasing its reliance on imports provided system support for Intracorp, currently no firm target dates to move of printed circuit boards from 2004 to which sells case management services to this work offshore. 2005 and from January through May of workers’ compensation insurers, 2006 when compared with the same Conclusion employers who self fund workers’ period in 2005. compensation and disability benefits, After review of the application and The investigation also revealed that and third party administrator. All investigative findings, I conclude that workers of LeeMAH Electronics, Inc., software developed by workers of the there has been no error or San Francisco, California, may be subject firm is used to support this misinterpretation of the law or of the eligible for TAA on the basis of a service business. In addition to case facts which would justify secondary upstream supplier impact. management, Intracorp developed its reconsideration of the Department of The Department conducted an own automated medical bill review Labor’s prior decision. Accordingly, the investigation of subject firm workers on service and this software program is also application is denied. the basis of secondary impact. It was used externally by the subject firm for Signed at Washington, DC, this 25th day of revealed that LeeMAH Electronics, Inc., its business. The official further October, 2006. San Francisco, California supplied cable clarified that there is only one instance Elliott S. Kushner, assemblies for production of test, when a customer temporarily leases Certifying Officer, Division of Trade measurement and radio equipment, and software developed by Intracorp to Adjustment Assistance. at least 20 percent of its production or perform its own bill review services. [FR Doc. E6–18353 Filed 10–31–06; 8:45 am] sales is supplied to a manufacturer This customer did not purchase this BILLING CODE 4510–30–P whose workers were certified eligible to software. When the software was leased apply for adjustment assistance. to this customer, some modifications In accordance with Section 246 of the were done to existing Audit Plus DEPARTMENT OF LABOR Trade Act of 1974 (26 U.S.C. 2813), as software, however these enhancements amended, the Department of Labor are not a new ‘‘product’’ but rather are Employment and Training herein presents the results of its enhancements to an existing system. Administration investigation regarding certification of The sophistication of the work eligibility to apply for alternative trade [TA–W–59,520] involved is not an issue in ascertaining adjustment assistance (ATAA) for older whether the petitioning workers are LeeMAH Electronics, Inc., San workers. eligible for trade adjustment assistance, Francisco, CA; Notice of Revised In order for the Department to issue but whether they produce an article Determination on Reconsideration a certification of eligibility to apply for within the meaning of section 222 of the ATAA, the group eligibility Trade Act of 1974. By letter dated August 23, 2006, a requirements of Section 246 of the Research, development and technical petitioner requested administrative Trade Act must be met. The Department support of the existing software is not reconsideration regarding the has determined in this case that the considered production of an article Department’s Negative Determination requirements of Section 246 have been within the meaning of Section 222 of Regarding Eligibility to Apply for met. the Trade Act. Further, while the Worker Adjustment Assistance, A significant number of workers at the provision of services may result in applicable to the workers of the subject firm are age 50 or over and possess creation of software, as outlined by the firm. skills that are not easily transferable. petitioner, it is incidental to the The initial investigation resulted in a Competitive conditions within the provision of services. The Department negative determination signed on July industry are adverse. has consistently determined that those 20, 2006 was based on the finding that Conclusion items which are created incidental to there were no increased imports of the provision of services are not printed circuit boards and cable After careful review of the additional considered articles for purposes of the assemblies and there was no shift of facts obtained on reconsideration, I Trade Act. production to a foreign source during conclude that increased imports of The investigation on reconsideration the relevant period. The workers were articles like or directly competitive with supported the findings of the primary separately identifiable by product. The circuit boards produced at LeeMAH investigation that the petitioning group denial notice was published in the Electronics, Inc., San Francisco, of workers does not produce an article. Federal Register on August 4, 2006 (71 California, contributed importantly to Service workers can be certified only FR 44320). the declines in sales or production and if worker separations are caused by a To support the request for to the total or partial separation of reduced demand for their services from reconsideration, the petitioner supplied workers at the subject firm. Also, after a parent or controlling firm or additional information regarding careful review of the facts obtained in subdivision whose workers produce an company imports of like or directly the investigation, I determine that
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workers of Electronics, Inc., San DEPARTMENT OF LABOR threatened to begin and the subdivision Francisco, California engaged the of the firm involved. production of cable assemblies qualify Employment and Training The petitioners or any other persons as adversely affected secondary workers Administration showing a substantial interest in the under Section 222 of the Trade Act of subject matter of the investigations may 1974, as amended. In accordance with Investigations Regarding Certifications request a public hearing, provided such the provisions of the Act, I make the of Eligibility To Apply For Worker request is filed in writing with the following certification: Adjustment Assistance And Director, Division of Trade Adjustment Alternative Trade Adjustment Assistance, at the address shown below, All workers of LeeMAH Electronics, Inc., Assistance not later than November 13, 2006. San Francisco, California, who became Interested persons are invited to submit totally or partially separated from Petitions have been filed with the employment on or after June 2, 2005 through written comments regarding the subject Secretary of Labor under Section 221(a) matter of the investigations to the two years from the date of this certification, of the Trade Act of 1974 (‘‘the Act’’) and are eligible to apply for adjustment assistance Director, Division of Trade Adjustment are identified in the Appendix to this under Section 223 of the Trade Act of 1974, Assistance, at the address shown below, notice. Upon receipt of these petitions, and are eligible to apply for alternative trade not later than November 13, 2006. adjustment assistance under Section 246 of the Director of the Division of Trade The petitions filed in this case are the Trade Act of 1974. Adjustment Assistance, Employment available for inspection at the Office of and Training Administration, has the Director, Division of Trade Signed in Washington, DC, this 25th day of instituted investigations pursuant to Adjustment Assistance, Employment October 2006. Section 221(a) of the Act. and Training Administration, U.S. Elliott S. Kushner, The purpose of each of the Department of Labor, Room C–5311, 200 Certifying Officer, Division of Trade investigations is to determine whether Constitution Avenue, NW., Washington, Adjustment Assistance. the workers are eligible to apply for DC 20210. [FR Doc. E6–18354 Filed 10–31–06; 8:45 am] adjustment assistance under Title II, Signed at Washington, DC, this 26th day of BILLING CODE 4510–30–P Chapter 2, of the Act. The investigations October 2006. will further relate, as appropriate, to the Richard Church, determination of the date on which total Certifying Officer, Division of Trade or partial separations began or Adjustment Assistance.
APPENDIX—30 TAA [Petitions Instituted Between 10/16/06 and 10/20/06]
Subject firm Date of Date of TA–W (petitioners) Location institution petition
60245 ...... R.L. Stowe Mills, Inc. (Comp)...... Belmont, NC ...... 10/16/06 10/12/06 60246 ...... Weyerhaeuser Cosmopolis Pulp Mill (Union)...... Cosmopolis, WA ...... 10/16/06 10/12/06 60247 ...... Advanced Technology Services (Wkrs)...... Vinita, OK ...... 10/16/06 10/13/06 60248 ...... Werner Co. (Comp)...... Franklin Park, IL ...... 10/16/06 10/13/06 60249 ...... ADVO (Comp)...... Pittsburgh, PA ...... 10/16/06 10/16/06 60250 ...... Senco Products (Wkrs)...... Cincinnati, OH ...... 10/17/06 09/21/06 60251 ...... Canvas Products (Union)...... Detroit, MI ...... 10/17/06 10/16/06 60252 ...... Shogren Hosiery Mfg. Co., Inc. (Comp)...... Concord, NC ...... 10/17/06 10/17/06 60253 ...... Metaldyne (Comp)...... St. Marys, PA ...... 10/18/06 10/12/06 60254 ...... Consolidated Metco, Inc. (IAM)...... Clackamas, OR ...... 10/18/06 10/17/06 60255 ...... Textron Fastening Systems (Wkrs)...... Wytheville, VA ...... 10/18/06 10/16/06 60256 ...... Eaton Corporation (Wkrs)...... Auburn, IN ...... 10/18/06 10/16/06 60257 ...... Benchmark Electronics (Wkrs)...... Hudson, NH ...... 10/18/06 10/16/06 60258 ...... Woodbridge Corporation (Wkrs)...... Lithonia, GA ...... 10/18/06 10/18/06 60259 ...... Burris Manufacturing, Inc. (Comp)...... Albemarle, NC ...... 10/18/06 10/18/06 60260 ...... Georgia Pacific Corp. (State)...... Crossett, AR ...... 10/18/06 10/17/06 60261 ...... Clout Financial Services, Inc. (Wkrs)...... Bloomington, IN ...... 10/18/06 10/18/06 60262 ...... Paramount Cards, Inc. (State)...... Pawtucket, RI ...... 10/19/06 10/18/06 60263 ...... Freedom Industries (Comp)...... Liberty, MS ...... 10/19/06 10/18/06 60264 ...... Ibase (Comp)...... Austin, TX ...... 10/19/06 10/10/06 60265 ...... Physical Rehab Works (State)...... Herrin, IL ...... 10/19/06 10/18/06 60266 ...... Hanesbrands, Inc. (Comp)...... Winston-Salem, NC ..... 10/19/06 10/13/06 60267 ...... Guide Corp. (State)...... Monroe, LA ...... 10/20/06 10/19/06 60268 ...... Harte Hanks Marketing Intelligence (Wkrs)...... Troy, MI ...... 10/20/06 09/22/06 60269 ...... AAR Cargo Systems (Comp)...... Livonia, MI ...... 10/20/06 10/17/06 60270 ...... Beard Hosiery Co., Inc. (Comp)...... Lenoir, NC ...... 10/20/06 10/19/06 60271 ...... Town of Hartland (Comp)...... Hartland, ME ...... 10/20/06 10/18/06 60272 ...... Elder Manufacturing, Inc. (Wkrs)...... St. Louis, MO ...... 10/20/06 10/19/06 60273 ...... Micro Motion, Inc. (State)...... Boulder, CO ...... 10/20/06 10/19/06 60274 ...... Southern Glove Manufacturing Co., Inc. (Comp)...... Conover, NC ...... 10/20/06 10/20/06
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[FR Doc. E6–18352 Filed 10–31–06; 8:45 am] (‘‘RIAA’’) requested that the Board refer the Register of Copyrights (‘‘Register’’). BILLING CODE 4510–30–P a question to the Register of Copyrights Specifically, the Board requested a regarding the eligibility of ringtones decision by the Register as to the (i.e., short digital sound recording file following: LIBRARY OF CONGRESS distributed for use in a cellular telephone or similar device) for 1. Does a ringtone, made available for Copyright Office statutory licensing under Section115 of use on a cellular telephone or similar the Copyright Act. An opposition to the device, constitute delivery of a digital [Docket No. RF 2006–1] phonorecord that is subject to statutory RIAA‘s referral motion was submitted, licensing under 17 U.S.C. § 115, Mechanical and Digital Phonorecord collectively, by the National Music irrespective of whether the ringtone is Delivery Rate Adjustment Proceeding Publishers Association, Inc., the monophonic (having only a single Songwriters Guild of America, and the melodic line), polyphonic (having both AGENCY: Copyright Office, Library of Nashville Songwriters Association melody and harmony), or a mastertone (a Congress. International (‘‘Copyright Owners’’). digital sound recording or excerpt ACTION: Final Order. After considering the arguments of the thereof)? parties, the Board agreed that the SUMMARY: The Copyright Royalty Board, matters raised by the RIAA motion did 2. If so, what are the legal conditions acting pursuant to statute, referred two and/or limitations on such statutory present novel questions of law and licensing?2 novel questions of law to the Register of agreed to submit the questions to the Copyrights. Specifically, the Copyright Register. Accordingly, on September 14, Royalty Board requested a decision by In sum, and as stated more fully 2006, the Board transmitted to the below, we believe that ringtones the Register of Copyrights regarding Register: (1) an Order, dated August 18, whether ringtones are subject to the (including monophonic and polyphonic 2006, referring two novel questions of ringtones, as well as mastertones) statutory license for making and law; and (2) the Initial and Reply Briefs distributing phonorecords under the qualify as digital phonorecord deliveries filed with the Board by RIAA and the (‘‘DPDs’’) as defined in 17 U.S.C. § 15. Copyright Act, and if so, what legal Copyright Owners. The Board‘s conditions and/or limitations would Apart from meeting the formal transmittal triggered the 30–day requirements of Section 115 (e.g., apply. The Register of Copyrights, in a decision period prescribed in Section timely fashion, transmitted a service of a notice of intention to obtain 802 of the Copyright Act. This statutory a compulsory license under Section Memorandum Opinion to the Copyright provision states that the Register ‘‘shall Royalty Board stating, with certain 115(b)(1), submission of statements of transmit his or her decision to the account and royalty payments, etc.), caveats, that the statutory license Copyright Royalty Judges within 30 applies to ringtones. whether a particular ringtone falls days after the Register of Copyrights within the scope of the statutory license DATES: Effective Date: October 16, 2006. receives all of the briefs or comments of will depend primarily upon whether FOR FURTHER INFORMATION CONTACT: Ben the participants.’’ See17 U.S.C. what is performed is simply the original Golant, Senior Attorney, and Tanya M. 802(f)(1)(B)(i). On October 16, 2006, the musical work (or a portion thereof), or Sandros, Associate General Counsel, Register transmitted a Memorandum a derivative work (i.e., a musical work Copyright GC/I&R, P.O. Box 70400, Opinion to the Board that answered the based on the original musical work but Southwest Station, Washington, DC novel questions of law. To provide the which is recast, transformed, or adapted 20024. Telephone: (202) 707–8380. public with notice of the decision in such a way that it becomes an Telefax: (202) 707–8366. rendered by the Register, the original work of authorship and would SUPPLEMENTARY INFORMATION: In the Memorandum Opinion is reproduced in be entitled to copyright protection as a Copyright Royalty and Distribution its entirety, below. derivative work). Reform Act of 2004, Congress amended Dated: October 26, 2006 Procedural Background. On August 1, Title 17 to replace the copyright Marybeth Peters, 2006, the RIAA requested that the arbitration royalty panel with the Register of Copyrights. Copyright Royalty Board refer a Copyright Royalty Board (‘‘Board’’). One question to the Register of Copyrights of the functions of the new Board is to Before the regarding the eligibility of a mastertone, make determinations and adjustments of U.S. Copyright Office a short digital sound recording file reasonable terms and rates of royalty Library of Congress distributed for use in a cellular payments as provided in sections Washington, D.C. 20559 telephone or similar device, for 112(e), 114, 115, 116, 118, 119 and 1004 statutory licensing under 17 U.S.C. Docket No. RF 2006–1 of the Copyright Act. In any case in 3 In the Matter of § 115. An opposition to the RIAA‘s which a novel question of law Mechanical and Digital Phonorecord concerning an interpretation of a Delivery Rate Adjustment Proceeding determinations, and rulings described in Section provision of the Copyright Act is 803(a) of the Copyright Act. See 17 U.S.C. presented in a ratesetting proceeding, § 802(f)(1)(B)(ii). MEMORANDUM OPINION 2 See Mechanical and Digital Phonorecord the Board has the authority to request a Delivery Rate Adjustment Proceeding, Order decision of the Register of Copyrights I. Introduction Granting in Part the Request for Referral of a Novel (‘‘Register’’), in writing, to resolve such On September 14, 2006, the Copyright Question of Law, Docket No. 2006–3 CRB DPRA questions. See 17 U.S.C. 802(f)(1)(B)(i). (Aug. 18, 2006) (‘‘Order’’). Royalty Board (‘‘Board’’), acting on a 3 The Copyright Royalty Board is currently For this purpose, a ‘‘novel question of request by the Recording Industry conducting a proceeding to determine the law’’ is a question of law that has not Association of America, Inc. (‘‘RIAA’’), reasonable rates and terms for the making and been determined in prior decisions, and pursuant to 17 U.S.C. § 802(f)(1)(B), distribution of phonorecords under the Section 115 determinations, and rulings described in 1 license. See Adjustments or Determination of referred two novel questions of law to Compulsory License Rates for Making and Section 803(a) of the Copyright Act. Distributing Phonorecords, 71 Fed Reg 1454 (Jan. 9, On August 1, 2006, the Recording 1 A ‘‘novel question of law’’ is a question of law 2006). The answers to the two questions referred to Industry Association of America that has not been determined in prior decisions, Continued
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referral motion was submitted, derivative works, RIAA argues that Moreover, we decide that a ringtone is collectively, by the National Music Section 115(a)(2), the arrangement made and distributed for private use Publishers Association, Inc., the privilege, expressly authorizes their even though some consumers may Songwriters Guild of America, and the creation. In any event, RIAA argues that purchase them for the purpose of Nashville Songwriters Association once the copyright owner of a musical identifying themselves in public. We International (‘‘Copyright Owners’’). work distributes a new ringtone to the also conclude that if a newly created After considering the arguments of the public, anyone can obtain a statutory ringtone is considered a derivative parties, the Board agreed that the license to use the musical work in that work, and the work has been first matters raised by the RIAA motion did ringtone. RIAA concludes that the distributed with the authorization of the present novel questions of law and Register should find that ringtones are copyright owner, then any person may agreed to submit the questions to the subject to statutory licensing under use the statutory license to make and Register. Section 115 of the Copyright Act, and distribute the musical work in the Accordingly, on September 14, 2006, all of the conditions under the provision ringtone. For those ringtones that are the Board transmitted to the Register of should apply. covered by Section 115 of the Copyright Copyrights the following: (1) the Order, Copyright Owners assert that all Act, all of the rights, conditions, and dated August 18, 2006, referring two ringtones are excluded from the Section requirements in the Act would apply. novel questions of law; and (2) the 115 statutory license. They argue that For those ringtones that fall outside the Initial and Reply Briefs filed with the the statutory license for making and scope of Section 115, the rights at issue Board by RIAA and the Copyright distributing phonorecords of musical must be acquired through voluntary Owners. The Board‘s transmittal works is narrow in scope and does not licenses. While the Copyright Royalty triggered the 30–day decision period encompass ringtones. They argue that Judges need not know which specific prescribed in Section 802(f)(1)(B) of the ringtones are not covered by Section 115 ringtones fall within/outside the scope Copyright Act. This statutory provision because they involve only a portion of of the license for the purpose of setting states that the Register of Copyrights the underlying composition, not the rates, and the parties have not asked the ‘‘shall transmit his or her decision to the entire musical work. Copyright Owners Register to undertake such a granular Copyright Royalty Judges within 30 argue that ringtones are derivative analysis here, we nevertheless offer days after the Register of Copyrights works and thus fall outside the express some guidance on the legal matters receives all of the briefs or comments of language of the statute. As for Section raised in this proceeding. the participants.’’4 115(a)(2), they argue that ringtones In addition to reviewing the Initial cannot be considered ‘‘arrangements’’ as II. Section 115 of the Copyright Act Briefs and Reply Briefs filed in this that term is understood in the music proceeding, the Office concluded that it industry, and in any event, ringtones Almost a century ago, Congress added would be helpful to conduct oral change the basic melody and to the Copyright Act the right for argument relating to the novel questions fundamental character of the musical copyright owners to make and of law.5 On October 4, 2006, the work. Copyright Owners also argue that distribute, or authorize others to make Copyright Office convened a hearing ringtones fail to satisfy Section 115’s and distribute, mechanical and questioned counsel on matters requirement that the phonorecords be reproductions (known today as raised in the briefs filed by RIAA and distributed for private use. Copyright phonorecords) of their musical Copyright Owners.6 Owners conclude that although compositions. Due to its concern about Summary of Arguments. RIAA argues variations exist among ringtones, none potential monopolistic behavior, that ringtones are digital phonorecord of them fit within the Section 115 Congress also created a statutory deliveries as that term is defined in the licensing scheme. license, Section 115 of the Act, to allow Copyright Act and are subject to Summary of Decision. We find that anyone to make and distribute a statutory licensing under the plain ringtones (including monophonic and mechanical reproduction of a musical language of Section 115, without polyphonic ringtones, as well as composition without the consent of the limitation. It argues that ringtones in mastertones) are phonorecords and the copyright owner provided that the general and mastertones,7 in particular, delivery of such by wire or wireless person adhered to the provisions of the contain no new original material, are technology meets the definition of DPD license, most notably paying a not protectable as derivative works, and set forth in the Copyright Act. However, statutorily established royalty to the therefore cannot infringe on the there are a variety of different types of copyright owner. Although originally derivative work rights of the Copyright ringtones ranging from those that are enacted to address the reproduction of Owners. Moreover, even if they were simple excerpts taken from a larger musical compositions on perforated musical work to ones that include player piano rolls, the statutory license the Register will help determine the scope of the additional material and may be has for most of the past century been ratesetting proceeding before the Board. considered original musical works in used primarily for the making and 4 17 U.S.C. § 802(f)(1)(B). and of themselves. Ringtones that are distribution of phonorecords and, more 5 See In the Matter of Mechanical and Digital merely excerpts of a preexisting sound Phonorecord Delivery Rate Adjustment Proceeding, recently, for the digital delivery of 9 Notice of Oral Argument, Docket No. RF 2006–1 recording fall squarely within the scope music online. (Sept. 28, 2006). of the statutory license, whereas those 6 We note that for demonstration purposes at the that contain additional material may discussion in this proceeding, when we refer to oral argument, RIAA and Copyright Owners have actually be considered original derivative works not covered by Section 115, we created CDs containing many examples of ringtones mean those types of works that exhibit a degree of as well as full length versions of some of the derivative works and therefore outside ‘‘originality’’ as that term is defined in court 8 musical works from which the ringtones were the scope of the Section 115 license. precedent. The addition of original material would based. Copyright Owners‘ CD also contains not only take a ringtone outside the scope of the ringtones downloaded from specific mobile phone 8 We note that Section 115 permits the creation privilege of making arrangements, it would also operators. These CDs are now part of the record in of derivative works, but this privilege under the take the ringtone outside the Section 115 license this proceeding as is the oral testimony of the statutory license is limited to making musical altogether. parties. arrangements necessary to conform it to the style or 9 Statement of Marybeth Peters, Register of 7 These types of ringtones are described in more manner of interpretation of the performance Copyrights, Before the Subcommittee on detail below. involved. 17 U.S.C. § 115(a)(2). For purposes of our Intellectual Property: Music Licensing Reform, U.S.
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In 1995, Congress recognized that single melodic line) and ‘‘polyphonic’’ including mastertones, involves ‘‘digital transmission of sound ringtones (having both melody and ‘‘substantial’’ creativity and recordings [was] likely to become a very harmony). RIAA explains that typical ‘‘significant’’ changes to the underlying important outlet for the performance of commercial monophonic and work. They state, for example, that recorded music.’’10 Moreover, it realized polyphonic ringtones consist of a making a ringtone requires creative that ‘‘[t]hese new technologies also may segment of the musical work determinations as to which portions of lead to new systems for the electronic representing its ‘‘hook,’’ or most the work should be selected to best distribution of phonorecords with the memorable portion of the melody, with capture the ‘‘hook’’ of the full length 16 authorization of the affected copyright little or no revision. recording and also to be most appealing 11 RIAA states that advances in owners.’’ For these reasons, Congress as ringtones. They further state that made changes to Section 115 to meet the technology now allow mobile devices to many mastertones are designed to be challenges of providing music in a play digital copies of commercial sound digital format when it enacted the recordings. As a result, mobile phone looped, repeating the selected portions Digital Performance Right in Sound manufacturers are incorporating the of the song multiple times until the 22 Recordings Act of 1995 (‘‘DPRA’’)12 functionality of stand–alone portable phone or mobile device is answered. which also granted copyright owners of digital music players, thus permitting Some songs have multiple hooks, each sound recordings an exclusive right to consumers to download sound of which can be made into a separate perform their works publicly by means recordings via the Internet or a ringtone. Other ringtones, they assert, of a digital audio transmission subject to computer connected to the Internet. include new content not present in the certain limitations.13 Specifically, RIAA states that, in addition to full song underlying work.23 Congress wanted to reaffirm the downloads of commercial recordings to Analysis. While RIAA and the mechanical rights of songwriters and such phones, there is consumer demand Copyright Owners may disagree as to music publishers in the new world of for downloads of shorter (partial–copy) the amount of creativity it takes to excerpts of sound recordings for use as digital technology. The changes to create a ringtone, they do agree that, in ringtones. These ringtones are Section 115 were also designed to general, ringtones are a unique category minimize the burden on transmission commonly referred to as ‘‘mastertones.’’17 RIAA asserts that of sound recordings that are used to services by placing record companies in announce an incoming call. The most the position to license not only their mastertones are displacing monophonic rudimentary ringtone, in musical terms, own rights, but also, if they chose to do and polyphonic ringtones as the is the monophonic ringtone that only so, the rights of writers and music ringtone of choice amongst publishers to authorize digital consumers.18 RIAA acknowledges that contains a musical work‘s melody (or a phonorecord delivery.14 It is the DPRA record companies and ringtone vendors portion of the melody). One level up the amendments to Section 115 that are of must obtain licenses to reproduce and musical hierarchy is the polyphonic particular interest here. distribute the relevant musical works in ringtone that contains a work‘s melody ringtones and that Section 115 exists to and harmony (or a portion thereof). The III. Ringtone Types enable use of musical works when most musically complex ringtones are Before addressing the questions raised licenses are not otherwise available.19 mastertones. A mastertone is a portion by the Copyright Royalty Judges, we Copyright Owners describe ringtones of a pre–existing full length musical must first determine the scope of the as ten–to–thirty–second ‘‘snippets’’ of work that may play sequentially or is subject matter in this proceeding. full–length musical works that are looped in a sequence. A mastertone According to RIAA, a ringtone is a created to serve as ringers on cell could also contain a portion of a 20 digital file, generally no more that 30 phones and other mobile devices. musical work combined with a message seconds in length, played by a cellular Copyright Owners alternatively describe from the recording artist designed a ringtone as a ten–to–thirty–second phone or other mobile device to alert specifically for the ringtone user. It is derivation of a musical work, sometimes the user of an incoming call or important to note that there are also 15 repeated in a ‘‘looping’’ sequence and message. RIAA states that, initially, non–musical ringtones that are mobile carriers and other ringtone sometimes not.21 Copyright Owners assert that the creation of ringtones, becoming increasingly popular with vendors distributed synthesized consumers.24 As discussed below, ringtones that embodied versions of 16 different types of ringtones may be musical works, but not recorded RIAA Initial Brief at 3-4; see also Neil J. Rosini and Michael I. Rudell, Ring Tone Revenues Foster treated differently for Section 115 performances by featured recording Copyright Detente, 234 N.Y.L.J. 3, col. 1 (2005) purposes. artists. It states that these earlier forms (‘‘Originally, musical ring tones were only available of ringtones are commonly known as in ‘monophonic’ form: a simple series of tones–each ‘‘monophonic’’ ringtones (having only a a single note–that might remind one of several bars 22 RIAA states that ringtone producers do not from a favorite CD as performed by a very simple intentionally create looping sequences; instead, computer. Technology then advanced to the looping is the product of cellphones that do not House of Representatives, 109th Cong., 1st Sess. at ‘polyphonic’ level, which are like monophonic ring have adequate storage capacity (memory). Oral 20 (June 21, 2005). tones with multiple notes played at the same time, Argument Transcript at 13-14. 10 S. Rep. No. 104-128, 104th Cong., 1st Sess. at creating harmonies. They sound closer to that 23 Copyright Owners Reply Brief at 5, 7. 14 (1995). favorite CD, but without original instrumentation or 24 11 Id. vocals.’’)(Hereinafter ‘‘Rosini and Rudell’’). See Rosini and Rudell (‘‘[C]onsumers aren‘t 12 Pub. L. No. 104-39, 109 Stat. 336 (1995). 17 RIAA explains that record companies hire settling merely for musical ringtones and ringbacks. 13 See 17 U.S.C. § 114. contractors to select hooks from popular sound Audio clips from films and television programs; comic routines from Comedy Central; pithy 14 S. Rep. No. 104-128, at 37 (1995). recordings and then create ringtones including these hooks. Oral Argument Transcript at 10. observations by Donald Trump; and announcement 15 Cellular phones typically have the ability to 18 of baseball plays are also available as ring tones.’’); accept downloads of ringtones, usually directly See Rosini and Rudell (Mastertones ‘‘not only over the cellular telephone network. Over the last sound like a favorite CD but are that favorite CD.’’). see also http://cyberextazy.wordpress.com/2006/ decade, a new consumer market has developed for 19 RIAA Initial Brief at 4-5. 09/01/ringtones-in-mtvs-video-music-awards/, musical ringtones. According to RIAA, the vast 20 Copyright Owners Initial Brief at 1–2. Ringtones in MTV‘s Video Music Awards(Sept. 1, majority of ringtones (99 percent) now in the 21 Id. at 9. We note that looping involves a portion 2006) (stating that ringtones are evolving into marketplace consist of excerpts from sound of a musical performance that is then sequenced in watchtones, which are ringtones combined with recordings. Oral Argument Transcript at 7, 10. a repetitive manner. video clips).
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IV. The Applicability of Section 115 to songwriters and music publishers as Owners argue that the statutory license Ringtones new technologies permit phonorecords for making and distributing Statutory Language. Section 115 of to be delivered by wire or over the phonorecords or musical works is the Copyright Act provides a airwaves rather than by the traditional narrow in scope and does not ‘‘compulsory license to make and making and distribution of records, encompass uses such as ringtones. They 30 distribute phonorecords’’ of any musical cassettes, and CDs.’’ The question assert that the inclusion of ringtones work previously recorded once a presented here is whether ringtones within the statutory license would phonorecord of a nondramatic musical qualify as digital phonorecord deliveries contravene Congress‘ intent that Section 31 work has been ‘‘distributed to the public within the scope of Section 115. 115 be a narrowly construed exception in the United States under authority of RIAA argues that, under the plain to certain exclusive rights of the musical the copyright owner.’’25 Such a license language of the Copyright Act, a work copyright owner. Copyright ‘‘includes the right of the compulsory distribution of a ringtone is a DPD Owners state that, as a ‘‘limited licensee to distribute or authorize the subject to statutory licensing under the exception’’ to certain exclusive rights distribution of a phonorecord of a Copyright Act. RIAA asserts that a granted to copyright owners, courts nondramatic musical work by means of ringtone results from the fixation of a consistently have held that the statutory a digital transmission which constitutes series of musical, spoken, or other license ‘‘be construed narrowly, lest the a digital phonorecord delivery.’’26 The sounds and therefore meets the exception destroy, rather than prove, the term ‘‘digital phonorecord delivery’’ or definition of a ‘‘sound recording’’ in rule.’’36 ‘‘DPD’’ is defined, in part, as ‘‘each Section 101 of the Copyright Act; its With regard to the DPRA of 1995, individual delivery of a phonorecord by fixation in a material object is a Copyright Owners assert that Congress‘ digital transmission of a sound ‘‘phonorecord.’’ According to RIAA, it is clarification that Section 115 covered recording which results in a specifically a phonorecord of the relevant musical not only ‘‘brick and mortar’’ sales did identifiable reproduction by or for any work as well. In the case of a not extend the license to cover any and transmission recipient of a phonorecord mastertone, the sound recording is a all digital uses. They state that the of that sound recording.’’27 clip of the commercially distributed existing limitations on the scope of the Congress created the statutory recording. In the case of monophonic license did not change and that use of mechanical license, as part of the and polyphonic ringtones, the fixed a work prior to publication, the creation Copyright Act of 1909, to prevent sounds are rendered by a synthesizer in of derivative works, and the monopolistic control over musical the telephone and so do not represent synchronization of a musical work, are 32 works while ensuring that music ambient sound in a recording studio. uses that remain outside of the license, publishers and songwriters receive an RIAA asserts that downloads of whether in digital or physical form.37 appropriate royalty.28 Congress revisited ringtones are DPDs because, when a Copyright Owners assert that RIAA‘s the issue of statutory licensing in 1976 ringtone is downloaded, there is a interpretation of Section 115 would and 1995 and has reaffirmed these same digital transmission of the sound ‘‘potentially open the door’’ to licensing purposes.29 Congress added the DPD recording that results in a specifically of snippets of musical works used to provisions to Section 115, as part of the identifiable reproduction for the enhance all sorts of other consumer DPRA of 1995, with support of the transmission recipient. RIAA argues that products and devices, such as musical music publishers, noting: ‘‘The the statutory license under Section 115 car alarms or doorbells. They state that intention in extending the mechanical includes the right of the licensee to the licensing of musical works for compulsory license to digital distribute ringtones just as it includes functional uses in consumer products is the right of the licensee to make and not what Congress intended when it phonorecord deliveries is to maintain 33 and reaffirm the mechanical rights of authorize other kinds of downloads. enacted Section 115.38 RIAA asserts that statutory licensing of RIAA, in its Reply, asserts that the 25 17 U.S.C. § 115(a)(1). ringtones is consistent with statutory mechanical license has been a 26 17 U.S.C. § 115(c)(3)(A). Congressional intent, as they are just the fixture of U.S. copyright law for nearly 27 17 U.S.C. § 115(d). The legislative history type of new technology contemplated by a century and argues that it should be accompanying this provision states, inter alia, that: Congress to be included within the construed in accordance with its terms. (1) the phrase ‘‘specifically identifiable scope of the DPRA.34 RIAA contests Copyright Owners‘ view reproduction’’ should be understood to mean a Copyright Owners do not argue that reproduction specifically identifiable to the that Section 115 should be construed transmission service; and (2) a transmission by a ringtones are not DPDs, stating instead narrowly, noting that the legislative noninteractive subscription transmission service that since ringtones are not covered by history accompanying the 1976 that transmits in real time a continuous program of Section 115, there is no need to address Copyright Act states: ‘‘The fundamental music selections chosen by the transmitting entity, the question.35 Rather, Copyright for which the consumer pays a monthly fee would question of whether to retain the generally not be considered a DPD. compulsory license or do away with it 30 28 SeeH. R. Rep. No. 60–2222, at 7 (1909) (‘‘The See S. Rep. No. 104–128, at 37 (1995). altogether was a major issue during 31 We note that the Harry Fox Agency, Inc., a main object to be desired in expanding copyright earlier stages of the program for general protection accorded to music has been to give to the subsidiary of the National Music Publishers composer an adequate return for the value of his Association and the leading musical work licensing revision of the copyright law. At the composition, and it has been a serious and difficult agency, released a notice in 2004 informing all hearings it was apparent that the task to combine the protection of the composer with licensees of its stated position that Section 115 does not cover ringtones or mastertones. See Mario F. argument on this point had shifted, and the protection of the public, and to so frame an act the real issue was not whether to retain that it would accomplish the double purpose of Gonzales, Are Musical Compositions Subject to securing to the composer an adequate return for all Compulsory Licensing for Ringtones?, 12 UCLA Ent. use made of his composition and at the same time L. Rev. 11, 11–12 (2004). RIAA asserts that its 36 Copyright Owners Initial Brief at 5, citing Fame prevent the formation of oppressive monopolies, dispute with the Harry Fox Agency over the Publishing Co. v. Alabama Custom Tape, Inc., 507 which might be founded upon the very rights interpretation of Section 115 remains unresolved F. 2d 667, 670 (5th Cir. 1975)(noting that the granted to the composer for the purpose of and ‘‘has cast a pall of legal uncertainty over the compulsory license provision of the 1909 Copyright protecting his interests.)’’ ringtone market.’’ RIAA Initial Brief at 6. Act is a limited exception to the copyright holder‘s 32 29 See H. R. Rep. No. 94–1476, at 107 (1976) (‘‘[A] Id. at 6–7. exclusive right to decide who shall make use of his compulsory licensing system is still warranted as a 33 Id. at 8. composition). condition for the rights of reproducing and 34 Id. at 21, 23. 37 Copyright Owners Initial Brief at 7–8. distributing phonorecords of copyrighted music.’’). 35 Oral Argument Transcript at 55. 38 Copyright Owners Reply Brief at 14–15.
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the compulsory license but how much phone‘s removable memory storage ‘‘opens the door’’ to licensing of the royalty rate under it should be . disk.44 When downloaded through the snippets of musical works to be used in .≥.≥. The Committee‘s conclusion on Internet or by wireless transmission, a car alarms or doorbells is a question that this point remains the same as in 1967: ringtone is part of a ‘‘digital is outside the scope of this proceeding. ‘that a compulsory license system is still phonorecord delivery’’ and a digital Works or Portions of Works. warranted as a condition for the rights transmission of a sound recording According to Copyright Owners, Section of reproducing and distributing which results in a ‘‘specifically 115 is expressly limited to the making phonorecords of copyrighted music.‘’’39 identifiable reproduction’’ by or for any and distributing of phonorecords of RIAA adds that Congress did not narrow transmission recipient of a phonorecord ‘‘works,’’ not portions of works such as the license through adoption of the of that sound recording.45 We also ringtones. Copyright Owners argue that DPRA in 1995, but rather stated that it believe that our statutory analysis because a ringtone is not a reproduction was ‘‘extending the mechanical comports with Congressional intent. of the entire musical work, it is not compulsory license to digital Ringtones are delivered by means of the subject to the statutory license. They phonorecord deliveries’’ and that its type of ‘‘new technologies’’ Congress argue that Section 115 throughout its purpose was to ‘‘maintain and reaffirm’’ intended to be included when it enacted provisions makes clear that a ‘‘work,’’ that the Section 115 license would the DPRA in 1995.46 and not a ‘‘portion’’ of a work, is its apply to ‘‘new technologies.’’40 RIAA We disagree with Copyright Owners subject. Copyright Owners state that this concludes that although some details of that Congress did not intend for result was not an accident of drafting the Section 115 license have changed ringtones to be the kind of use of nor is it an unintended source of over the years, nothing in these musical works contemplated for statutory ambiguity. They state that enactments or the legislative history inclusion under the Section 115 Congress had no difficulty using the thereof suggests that Congress intended license.47 While we adhere to the term ‘‘portions’’ where in fact that a narrow reading of the statute. general proposition that statutory concept was intended, such as in Analysis. We find that ringtones meet licenses are to be construed narrowly,48 Sections 108(h)(1) and 110(2) of the the definition of DPDs. The issue we find that Section 115, as amended by Copyright Act.50 Copyright Owners presented is one of pure statutory the DPRA, purposefully broadened the assert that this interpretation is construction and there is no actual scope of the statutory license to cover confirmed by Section 115’s legislative dispute on this point.41 Based on the DPDs, and ringtones appear to fit history which mentions ‘‘cover records’’ language of the statute, ringtones easily comfortably within the definition of as well as cassettes and CDs.51 meet the requisite definitions under the DPDs. On this note, we recognize that Copyright Owners remark that it is Copyright Act to be included in the Copyright Owners have cited Fame obvious that the Section 115 license Section 115 licensing scheme. First, we Publishing Co. v. Alabama Custom applies only to physical or digital hold that a ringtone meets the definition Tape, Inc., 507 F. 2d at 670, to support phonorecords of complete works since of ‘‘sound recording’’ under Section 101 their narrow construction argument. industry practices have developed on of the Act as a work that results from However, we find this citation is inapt the basis of this interpretation of Section ‘‘the fixation of a series of musical, because the case arose out of a dispute 115. They state, for example, that partial spoken, or other sounds,’’42 and that the concerning statutory language found in uses of compositions, such as medleys sound recording is fixed in the form of the 1909 Act that is not present in the and samples, are licensed in market a ‘‘phonorecord,’’ defined in the statute current version of Section 115. In any transactions. They further state that as a ‘‘material object in which sounds event, the legislative history of the legal commentators have recognized are fixed by any method now known or Copyright Act of 1909 states that from that the Section 115 license does not later developed.’’43 The phonorecord its inception, this compulsory license apply to digital sampling and that it here is the actual sound recording file was intended to include all ‘‘mechanical would have to be modified in order to stored as a ‘‘download’’ on either the reproductions’’ and that one of its include sampling within its scope.52 cell phone‘s hard drive or on a cell purposes was ‘‘to secure to the composer an adequate return for all use 50 Section 108(h)(1) states in part ‘‘a library or 39 RIAA Reply Brief at 3, citing H.R. Rep. No. 94– made of his composition[.]’’49 (emphasis archives. . .may reproduce, distribute, display, or 1476, at 107 (1976). added). While the concept of the perform in facsimile or digital form a copy or 40 Id. at 4, citing S.Rep. No. 104–128, at 37 (1995). cellular phone ringtone undoubtedly phonorecord of such work, or portions thereof, for 41 Id. at 2, citing Doyle v. Huntress, Inc., 419 F.3d purposes of preservation, scholarship, or research.’’ 3, 7–8 (1st Cir. 2005) (‘‘A question of statutory would have astonished the members of Section 110(2) refers to ‘‘the performance of a construction presents a purely legal question.’’); the 1909 Congress, the license they nondramatic literary or musical work or reasonable Blackman v. District of Columbia, 2006 WL devised was broad enough to include and limited portions of any other work, or display 2034355, *6 (DC Cir. 2006) (statutory construction ringtones. Whether our interpretation of a work in an amount comparable to that which begins with ‘‘the language itself, the specific context is typically displayed in the course of a live in which that language is used, and the broader classroom session, by or in the course of a context of the statute as a whole[.]’’). 44 See S. Rep. No. 104–128, at 39 (1995) (stating transmission.’’ 42 17 U.S.C. § 101 (‘‘‘Sound recordings’ are works that storage of data in a ‘‘computer memory’’ is 51 Copyright Owners Initial Brief at 9–11, citing that result from the fixation of a series of musical, ‘‘technically the making of a phonorecord.’’). Supplementary Register‘s Report on the General spoken, or other sounds, but not including the 45 17 U.S.C. § 115(d). Revision of the U.S. Copyright Law: 1965 Revision sounds accompanying a motion picture or other 46 See S. Rep. No. 104–128, at 37 (1995) Bill, House Comm. on the Judiciary, 89th Cong., audiovisual work, regardless of the nature of the 47 We are not saying that Congress specifically Copyright Law Revision Part 6, at 54 (Comm. Print material objects, such as disks, tapes, or other contemplated ringtones and their inclusion in the 1965) (discussing ‘‘cover’’ records); H.R. Rep. No. phonorecords, in which they are embodied.’’). Section 115 license. Rather, ringtones generally fall 90–83, at 67 (1967) (referring to ‘‘disks and audio 43 17 U.S.C. § 101 (‘‘‘Phonorecords‘ are material into the class of ‘‘new technologies’’ that Congress tapes’’); S. Rep. No. 104–128, at 37 (1995) objects in which sounds, other than those concluded should be included within the expanded (‘‘extending the mechanical compulsory licenses. . accompanying a motion picture or other statutory license. .as new technologies permit phonorecord to be audiovisual work, are fixed by any method now 48 See Public Performance of Sound Recordings: delivered by wire or over airwaves rather than by known or later developed, and from which the Definition of a Service, Docket No. RM 2000–B, 65 traditional making and distributing of record, sounds can be perceived, reproduced, or otherwise FR 77,292, 77,297 (Dec. 11, 2000) (noting that the cassettes and CDs’’). communicated, either directly or with the aid of a Copyright Office has historically construed 52 Id. at 11, citing Jennifer R.R. Mueller, Note: All machine or device. The term ‘phonorecords‘ limitations on copyright narrowly, especially those Mixed Up: Bridgeport Music v. Dimension Films includes the material object in which the sounds constrained by a compulsory license.). and De Minimis Digital Sampling, 81 IND. L.J. 435, are first fixed.’’). 49 See H. R. Rep. No. 60–2222, at 7 (1909). 461 (Winter 2006).
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RIAA asserts that Section 115 applies that ringtones are excerpts that are taken undermined if Copyright Owners‘ to whole musical works as well as from musical works and distributed as interpretation were correct. Under this portions of musical works, and that any such; samples, however, are short provision, licensing agreements and other reading would be inconsistent excerpts that are blended into what are related fees negotiated between with other provisions of the Copyright clearly new creative works. RIAA noncommercial broadcasting entities Act.53 RIAA states that if the Copyright asserts that the fact that the latter are and copyright owners of published Owners are correct that the Copyright licensed apart from Section 115 does nondramatic musical works are subject Act distinguishes between ‘‘works’’ and not imply that the former should be.58 to ratesetting by the Copyright Royalty ‘‘portions of works,’’ then reproduction Analysis. The Section 115 license is Board.62 While Section 118 expressly and distribution of ringtones would be not limited to the reproduction and refers to ‘‘works,’’ it has been permissible without a license as the distribution of phonorecords of the understood to include portions of works provisions under Section 106 granting entire musical work, and an excerpt as well. For example, under 37 CFR the exclusive rights to reproduction and may qualify for the statutory license if § 253.7(b)(3), which implements the distribution only refer to ‘‘works,’’ not all other requirements are met. We rates set for the Section 118 statutory ‘‘portions of works.’’ RIAA remarks that believe that the Copyright Act‘s license, ‘‘a ‘Concert Feature‘ shall be the Copyright Owners do not intend that language and purpose are broad and that deemed to be the nondramatic interpretation nor is it a correct one. ‘‘portions of works’’ should be treated presentation in a program of all or part RIAA adds that Copyright Owners‘ the same as any other type of work of a symphony, concerto, or other approach to what constitutes a ‘‘work’’ under Section 115. This provision of the serious work originally written for would make other phrases in the statute Act does not expressly exclude concert performance or the nondramatic superfluous. It notes, for example, that ‘‘portions of works’’ from its scope and presentation in a program of portions of one of the factors used in determining we cannot assume that such treatment a serious work written for opera whether a use of a work is a fair use was intended in the absence of clear performances.’’63(emphasis added). If 59 under Section 107(3) is the ‘‘amount statutory language to that effect. we were to accept Copyright Owners‘ and substantiality of the portion used in Contrary to Copyright Owners‘ argument that the Act covers only full relation to the copyrighted work as a assertion, we cannot find support for musical works, and not portions of whole.’’ The phrase ‘‘as a whole’’ would such a limited and narrow reading of musical works, then the Board could be superfluous if a ‘‘work’’ in the Act the Act in the legislative history they never set such rates pursuant to Section 60 must always be the whole work and not cite. 253.7. This result, we believe, was not a portion thereof.54 RIAA asserts that Moreover, we believe that Copyright intended by Congress. although unstated, Copyright Owners Owners‘ citations to Sections 108 and We also believe that Copyright apparently are relying on the canon of 110 are inapt as these provisions were Owners analogy to sampling is inapt. not enacted contemporaneously with statutory construction expressio unius Sampling generally refers to the Section 115 and cannot be read to est exclusio alterius, which provides a appropriation of sounds from an provide any guidance as to general inference that omissions in existing sound recording for Congressional intent or the purpose of statutory text are intentional.55 RIAA transformative use along with other the statutory license. We note, in notes, however, that this maxim sounds in a new work. A mastertone, in particular, that their interpretation of ‘‘requires great caution in its contrast, is taken from a single work, in Section 110(2) defies legislative intent application’’ and should be disregarded the form of an excerpt. as well as common sense.61 Under where ‘‘its application would thwart the Marketplace Developments. Copyright Owners‘ interpretation, legislative intent made apparent by the According to Copyright Owners, the educators using the distance education entire act.’’56 It states that such caution statutory license was instituted to exemption could transmit limited ensure a market where none existed, but should be exercised here because, portions of works other than unlike most of the relevant language in there is an active market for freely nondramatic literary or musical works, negotiated licenses already in place. Section 115, the references to but if they transmit a performance of a ‘‘portions’’ of works that Copyright They assert that the Register of nondramatic literary or musical work, Copyrights has stated that ringtones are Owners cite did not appear in the 1976 they would have to transmit the entire a subject more appropriately left to Act and were only added years later. work as a transmission of a portion of market forces than government RIAA asserts that there is no indication the work would not be permitted. regulation and that ‘‘there is no need for that either amendment was intended to Congress certainly did not intend this affect the interpretation of the Government to legislate what the parties result. 64 provisions of the Copyright Act enacted We also find that Copyright Owners‘ can negotiate themselves.’’ They state more that twenty years before. RIAA reading of the Copyright Act, if adopted, that Copyright Owners and record concludes that two isolated references would render certain provisions of the labels, recognizing that ringtones are not in the Copyright Act to ‘‘portions of statute superfluous. For example, well– DPDs subject to the statutory license, works’’ cannot imply that the hundreds settled interpretation of and practice 62 of unadorned references to ‘‘works’’ under Section 118 of the Act would be See 17 U.S.C. § 118. Section 118(d) gives public 57 broadcasters permission to engage in certain apply only to works in their entirety. ‘‘activities with respect to published nondramatic RIAA notes that Copyright Owners‘ 58 Id. at n.8. musical works and published pictorial, graphic, and argument that ringtones are analogous to 59 We agree with RIAA that Section 115 makes no sculptural works . . .’’ Under Section 118(d)(1), one sampling is equally misplaced. It states distinction between downloads of song excerpts of the activities is ‘‘the performance or display of and full songs delivered by online music services a work.’’ 17 U.S.C. § 118(d)(1). such as Apple‘s iTunes Music Store and Verizon 63 See37 CFR § 253.7(b)(3). 53 RIAA Reply Brief at 7. Wireless‘ V Cast Music Store. See RIAA Initial Brief 64 Copyright Owners Initial Brief at 8, citing 54 Id. at 9, citing 17 U.S.C. § 107(3) at 1. Copyright Office Views on Music Licensing Reform. 55 Id. at 8, citing 2A Sutherland, Statutes and 60 See n. 51, supra Hearings Before the Subcomm. on Courts, the Statutory Construction, § 47:25 (Norman Singer ed., 61 See 17 U.S.C. § 110(2) (discussing works Internet, and Intellectual Property. House Comm. 6th ed. 2005). ‘‘produced or marketed primarily for performance on the Judiciary, 109th Cong., at 20 (2005) 56 Id. or display as part of mediated instructional (Statement of Marybeth Peters, Register of 57 Id. at 7, 9. activities transmitted via digital networks . . .’’). Copyrights)
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have entered into voluntary license some mastertone agreements are no legislative history, Section 115 exists to agreements granting the labels the right substitute for the Section 115 license.69 permit artists and record companies to to create ringtones at specified In Reply, Copyright Owners reiterate create sound recordings, which are a mutually–negotiated royalty rates.65 that the market for ringtones is thriving type of derivative work.73 Copyright Owners assert that these and no compulsory license is needed to Copyright Owners generally assert voluntary licenses provide further ensure its continued growth. The that ringtones fall outside the ambit of support that ringtones are outside the suggestion by RIAA that, absent the statutory license because they are narrow scope of Section 115. They compulsory licensing, music publishers derivative works. They argue that conclude that there exists a vibrant and will ‘‘prevent the commercialization’’ of ringtones exceed the scope of the growing market for ringtones, which ringtones is belied by the years of Section 115 license by infringing the makes it unnecessary and inappropriate voluntary licensing of compositions by copyright owners‘ exclusive right to 70 to include ringtones within Section music publishers for such uses. prepare derivative works. They assert 115.66 Analysis. The general success, or lack that Section 115 subjects only the rights thereof, of the marketplace for ringtones to reproduce and distribute According to RIAA, Copyright is not dispositive, or even necessarily phonorecords of works to the statutory Owners mischaracterize current relevant, in this analysis. Commercial license, leaving derivative works marketplace conditions and the negotiations involving the use of outside its scope. Copyright Owners Register‘s prior testimony, which, in any copyrighted works cannot annul the argue that ringtones fit squarely within instance, are both irrelevant. RIAA force and effect of existing law, unless the derivative work definition because asserts that the Register‘s testimony was Congress explicitly so states. We in fact they are based on pre–existing works, in the context of an express legislative note that, despite the existence of the and typically reduce a three–to–five invitation to explore revision of the Section 115 license, the vast majority of minute work to an abridged ten–to– statute. The reform proposal presented sound recordings are made pursuant to thirty second work.74 by the Register, if adopted by Congress, direct licenses from music publishers or RIAA asserts that the legal tests for would have repealed the statutory the Harry Fox Agency rather than under protection of derivative works and license and omitted from a successor the provisions of the statute. These infringement of the derivative work licensing system the statutory treatment commercial agreements, however, do right are identical and, in any event, of ‘‘ringtunes’’ and certain other types of not negate the existence of the statutory require originality.75 It states that ‘‘[F]or works. RIAA notes that the Register‘s license. Moreover, reliance on the the derivative work right to be infringed, reform proposal is not law, but Section statements made by the Register of the defendant must have created a 115 is.67 Copyrights is both inappropriate and derivative work, and for the derivative inapt. These statements were proposals work to have been created, the Act RIAA disputes Copyright Owners‘ requires the contribution of expressive claims that the purpose of the statutory for revising the law, not interpretations of the existing regulatory regime. content capable of standing on its own license was to ensure a market where as a copyrightable work.’’76 RIAA cites none existed and that the ringtone V. Derivative Works a string of precedent to support its market is thriving. As to the former Section 115 and Derivative Works. position that derivative works must be point, RIAA asserts that Section 115 was Section 101 of the Copyright Act defines original to be afforded copyright enacted to protect the market from a a derivative work as a ‘‘work based ‘‘great music monopoly,’’ not to create a upon one or more preexisting works, employed in the work, and does not imply any 68 market. With regard to the latter point, such as a translation, musical exclusive right in the preexisting material.’’ 17 RIAA asserts that although the U.S. has U.S.C. § 103(b). Section 106 states that ‘‘[s]ubject to arrangement, dramatization, sections 107 through 122, the owner of copyright the world‘s largest music market, the fictionalization, motion picture version, under this title has the exclusive rights to do and U.S. ringtone market represents only a sound recording, art reproduction, to authorize any of the following. . . (2) prepare fraction of worldwide sales, with the abridgement, condensation, or any other derivative works based upon the copyrighted work. bulk of the market in Europe and Asia. . .’’ 17 U.S.C. § 106(2). form in which a work may be recast, 73 See H. R. Rep. No. 94–1476, at 108–09 (1976) Moreover, aside from the EMI agreement transformed, or adapted. A work (noting that a Section 115 license permits either the cited by Copyright Owners, there are no consisting of editorial revisions, creation of a new sound recording or a duplication other major ringtone licensing annotations, elaborations, or other of an existing one with the consent of the sound agreements of importance. RIAA states recording copyright owner). modifications, which as a whole, 74 Copyright Owners Initial Brief at 12–13. that with tens of thousands of music represent an original work of Copyright Owners note that the Copyright Board of publishers, the need to clear all these authorship, is a derivative work.’’71 Canada recently observed in a proceeding to set the rights through negotiation is a burden rates for ringtones that ‘‘mastertones are created by Congress used one defined term, taking an actual segment of a sound recording after on the market and it is not surprising ‘‘derivative work,’’ to specify both that determining which number of seconds out of a that the U.S. offerings lag behind other derivative works are protectable under work will be most appropriate for the market.’’ Id., parts of the world. RIAA concludes that Section 103 of the Copyright Act and citing Copyright Board of Canada, Collective Administration of Performing Rights and of that the copyright owner has the Communications Rights, Statement of Royalties to 65 For example, Copyright Owners cite the exclusive right to prepare derivative be Collected by SOCAN for the Communication to November 1, 2004 Sony BMG/EMI Music works under Section 106(2) of the the Public by Telecommunication, In Canada, of Publishing Agreement that granted the former the Copyright Act.72 According to the Act‘s Musical or Dramatico-Musical Works, Tariff No. 24– right to create ringtones embodying EMI Ringtones (2003–2005) (Aug. 18, 2006) at 13. In compositions response, RIAA notes that this statement by the 66 Copyright Owners Initial Brief at 4. 69 Id. at 6–7. Copyright Board confirms its supposition that the 67 RIAA Reply Brief at 4, citing Music Licensing 70 Copyright Owners Reply Brief at 15–16, citing selection of a mastertone from the underlying Reform. Subcomm. on Intellectual Property, Senate Rudell and Rosini, (noting that U.S. ringtone sales musical work is a ‘‘trivial omission.’’ RIAA Reply Comm. on the Judiciary, 109th Cong. (July 12, 2005) in 2005 was approximately $500 million). Brief at n. 10. (Statement of Marybeth Peters, Register of 71 17 U.S.C. § 101. 75 RIAA Initial Brief at 11, citing Feist Publ’ns, Copyrights). 72 Section 103 states that ‘‘the copyright in a Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 346 (1991) 68 RIAA Reply Brief at 5, citing Melville B. compilation or derivative work extends only to the (‘‘Originality is a constitutional requirement.’’). Nimmer & David Nimmer, Nimmer on Copyright material contributed by the author of such work, as 76 Id. at 11–12, citing 2 Paul Goldstein, Copyright § 8.04[A] (2004). distinguished from the preexisting material § 7.3 (3d ed. 2005).
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protection.77 RIAA states that for With regard to the appropriate legal test of different copyrighted works mastertones, the trivial action of regarding copyrightability, we believe constitute derivative works under the copying a clip from an existing sound that Feistis controlling precedent here.81 Copyright Act. They note, for example, recording does not stand on its own as In Feist, the Supreme Court observed that courts have found that clips from meriting copyright protection.78 RIAA that ‘‘as a constitutional matter, full–length copyrighted works, such as also asserts that there is no precedent in copyright protects only those movie trailers, constitute derivative copyright law for the proposition that constituent elements of a work that works.85 every partial reproduction of a work possess more than a de minimis RIAA cites cases contrary to constitutes a separate derivative work. quantum of creativity,’’ and that there Copyright Owners‘ position. For RIAA concludes that ringtones are can be no copyright in work in which example, it cites precedent holding that nothing more than partial copies that ‘‘the creative spark is utterly lacking or the use of copyrighted music excerpts in lack sufficient originality to be protected so trivial as to be virtually the background of a television show did as derivative works or to infringe the nonexistent.’’82 As illustrated below, not infringe the derivative work right derivative works right.79 RIAA there are ringtones that may be because the inclusion of the music did concludes that because ringtones do not considered derivative works because not create a new derivative work that fit under the definition of derivative they exhibit a degree of originality and warrants copyright protection.86 It also works in Section 101 of the Act, the creativity. However, there are many refers to another case where the district making of a ringtone cannot be excluded other ringtones that would not be court denied a claim that adding local under Section 115 on this basis. considered derivative works because commercials to rental videos was an Analysis. As an initial matter, we they exhibit only trivial changes from infringement of the derivative work agree with Copyright Owners‘ assertion the underlying work. Those ringtones right because there was no evidence that that Section 115, by its terms, concerns would not be considered derivative ‘‘the mere addition of a commercial to only the rights to reproduce and works and would be within the scope of the front of a videocassette recasts, distribute phonorecords of works, the statutory license. transforms, or adapts the motion picture leaving derivative works outside its Court Precedent. Copyright Owners in what could represent an original confines. Thus, consideration of the argue that caselaw compels a conclusion work of authorship.’’87 Relying on the derivative work right is important only that ringtones are derivative works. district court‘s determination in Agee to the extent that a ringtone which is They argue that ringtones satisfy any that copying an excerpt of a musical adjudged to be a derivative work cannot creativity requirement for the work does not infringe the derivative be licensed under Section 115. To be copyrightability of a derivative work.83 work right, RIAA argues that the considered a derivative work, a ringtone They additionally argue that the creation of a ringtone does not infringe must exhibit a degree of originality selection process involved in the the exclusive right to prepare derivative sufficient enough to be copyrightable.80 creation of ringtones meets the works of the underlying musical work.88 creativity standard for copyrightability RIAA argues that the cases involving 77 See id. at 12-14, 20, citing Woods v. Bourne Co., under settled law.84 Copyright Owners the creation of unauthorized trailers 60 F.3d 978, 989 (2d Cir. 1995)(holding that a also assert that the courts have routinely through editing and condensing of musical work must have ‘‘substance added making the piece to some extent a new work’’ and that only held that shortened versions of a variety motion pictures are inapt. According to the ‘‘addition of such new material would entitle RIAA, such cases involve claims of the creator to a copyright on the new material.’’); 81 Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 unauthorized reproduction, and that is Lee v. Deck the Walls, Inc., 925 F. Supp. 576 (N.D. U.S. 340 (1991). Original, as the term is used in a sufficient basis on which to decide Ill 1996), aff’d on other grounds sub nom., Lee v. copyright, means that: (1) the work was A.R.T. Co., 125 F.3d 580 (7th Cir. 1997)(holding that independently created by the author (as opposed to notecard art image deposited on tile and covered copied from other works); and (2) it possesses at 85 Copyright Owners Initial Brief at 13, citing with epoxy is not copyrightable because the work least some minimal degree of creativity. Id. at 345. Video Pipeline, Inc. v. Buena Vista Home Entm’t, does not contain any original artistic expression); When we refer to ‘‘originality’’ in this Inc., 192 F. Supp. 2d 321, 330 (D.N.J. 2002),aff’don Peker v. Masters Collection, 96 F. Supp. 2d 216 Memorandum Opinion, we are referring not to other grounds, 342 F.3d 191, 197 (3rd Cir. 2003); (E.D.N.Y. 2000) (holding that an oil painting independent creation, but to creativity. John Lamb d/b/a Alpha Production v. Michael reproduction, made by transfer of a copy of a 82 Id. at 359, 363; see also Woods v. Bourne Co., Starks 3D TV Corp., 949 F. Supp. 753, 755–56 (N.D. copyrighted painting from a poster to a canvas with 841 F. Supp. 118, 122 (S.D.N.Y. 1994) (quoting Fred Cal. 1996)(finding that use of a portion of a full the addition of resin to create a brushed-on look of Fisher, Inc. v. Dillingham, 298 F. 145, 148 (S.D.N.Y. length movie to create a trailer, without permission, the original was not a derivative work because there 1924) (holding that a derivative work must be was infringing and not fair use). was no originality that would be considered ‘‘substantially a new and original work, not a copy 86 See RIAA Initial Brief at 15, citing Agee v. copyrightable); Precious Moments, Inc. v. La of a piece already produced, with additions and Paramount Commc’ns, Inc, 853 F. Supp. 778 Infantil, Inc., 971 F. Supp. 66, 67 (D. Puerto Rico, variations, which a writer of music with experience (S.D.N.Y. 1994), aff’d in part rev’d in part on other 1997) (stating that originality is required for a and skill might readily make’’). grounds, 59 F.3d 317 (2d Cir. 1995) (holding that derivative work to be copyrightable). 83 Copyright Owners Reply Brief at 8, citing Video ‘‘copying a sound recording for use in a broadcast 78 Id. at 2. Pipeline, Inc. v Buena Vista Home Entm’t, Inc. 192 television program does not create a derivative 79 Id. at 10, citing Nimmer on Copyright § 8.09[A] F. Supp. 2d 321 (D.N.J. 2002), aff’d on other work which warrants protection under the (noting that no reported case finds the holder of a grounds, 342 F.3d 191 (3d Cir. 2003); Yurman Copyright Act of 1976’’). The Second Circuit found reproduction license barred from making trivial Design, Inc. v. PAJ, Inc., 262 F.3d 101, 109 (2d Cir. it unnecessary to reach the derivative works changes to a work even without a separate license 2001) (stating that ‘‘Under the Constitution and by question. See id. at 324 (stating that ‘‘Although the to make derivative works). statute, copyright validity depends upon interspersing and abridgement of a sound recording 80 We recognize that in one sense, every ringtone originality’’), citing Feist Publ’ns, Inc. v. Rural Tel. may not, strictly speaking, involve sampling or will be a derivative work, in that every sound Serv. Co., 499 U.S. 340, 345 (1991). amount to the traditional creation of a derivative recording of music is a derivative work; the 84 Id., citing U.S. Payphone, Inc. v. Executives work, such use of a recording appears to fall within underlying work is the musical composition itself. Unlimited of Durham, Inc., 18 U.S.P.Q. 2d 2049, at the language of section 114(b), perhaps constituting See H. R. Rep. No. 94–1476, at 108–109 (1976) The *8 (4th Cir. 1991) (finding that a section of a a rearrangement or alteration in sequence. We need issue before us is not whether a ringtone is a reference guidebook was a protectable compilation not determine the extent to which the recording derivative work; by definition it is. Rather, the because the author collapsed voluminous tariff was altered, however, because the finding that question is whether a musical composition as information into an easily usable guidebook); Caffey Paramount created a derivative work is unnecessary recorded in a ringtone infringes the derivative work v. Cook, 409 F. Supp. 2d 484, 497 (S.D.N.Y. 2006) to a finding of infringement in light of Paramount’s right in the original musical composition. When we (finding a protectable compilation in the selection reproduction of Agee’s recording.’’). refer to ringtones as ‘‘derivative works’’ in this and ordering, for a musical show, of thirty two 87 See id. at 14, citing Paramount Pictures Corp. Memorandum Opinion, we are referring not to the songs from a universe of possible musical v. Video Broad. Sys., Inc., 724 F. Supp. 808, 821 (D. sound recording, but to the musical composition compositions based on the compiler’s sense of Kan. 1989). recorded in the ringtone. See also, n. 8, supra. musicality). 88 Id. at 8, 15.
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them. Moreover, in the few instances Analysis. Given the wide range of Woods v. Bourne is guiding precedent where those cases address the derivative ringtones available in the marketplace, for determining the derivative work work right, they point in conflicting and understanding that a derivative right in musical compositions.95 Under directions depending on whether or not work analysis is factually intensive, our Woods, an excerpt of a musical work the court follows Ninth Circuit task here is not to provide a made into a ringtone without original precedent.89 RIAA argues that the comprehensive analysis of the caselaw. embellishments likely would not be Register should decline to follow the However, we do need to address considered a derivative work because Ninth Circuit‘s holding that the whether a musical excerpt, in the form nothing of substance has been added derivative work right may be infringed of a ringtone, is a derivative work and the ringtone is merely a copy of a without a finding of originality. RIAA because it is a central issue in this work (albeit a portion) already explains that in the Ninth Circuit, all proceeding. First, consideration of the produced, without additions or one must show to prove infringement of derivative work right issue is important variations. Fifth, as for those the derivative work right is substantial to the extent that a ringtone which is mastertones that contain new words in similarity between the derivative work adjudged to be a derivative work cannot the lyrics not found in the underlying and the underlying work and that, be licensed under Section 115. Second, musical works, we draw no conclusions under this reasoning, there is no legal we agree with RIAA that the Ninth based on precedent because they distinction between infringing the Circuit‘s more lenient test for involve factual issues and potentially reproduction right and infringing the infringement of derivative works, which close questions that need not be derivative work right.90 RIAA submits seemingly ignores the originality resolved here. A court of competent that such an interpretation is wrong requirement, appears to be in error as it jurisdiction would be the appropriate because it is contrary to the plain runs contrary to all other Circuit Court forum to make the necessary language of the statute and contrary to precedent.93 Third, we agree with RIAA determinations. the weight of authority.91 RIAA states that reliance on derivative works Copyright Office Precedent. The that, in any event, the trailer cases are precedent involving movie trailers, such Copyright Office has made certain of marginal relevance here because they as Video Pipeline, Inc., is inapt because pronouncements as to the registrability involve a greater degree of editorial the creating and editing process of derivative works in sound recordings judgment than copying a single clip for involved in making those trailers and other works in various publications. distribution as a mastertone or other required much more originality than For example, Section 408.07 of typical commercial ringtone. simply shortening an existing musical Compendium II of Copyright Office Copyright Owners assert that to the work to create a ringtone.94 Fourth, Practices states that ‘‘An abridgement of extent there is a dispute among the a musical work may be registrable circuits as to whether creativity 93 We note that there is widespread disapproval provided that there is a substantial sufficient for copyright protection is of the Ninth Circuit’s approach to derivative works. amount of selectivity, for example, more required for a work to be a derivative See, e.g., Lee v. A.R.T, 125 F.3d 580, 582 (7th Cir. 1997) (noting that if the Ninth Circuit is ‘‘right than merely omitting a section from the work for purposes of infringement, that about what counts as a derivative work, then the beginning or end.’’ Copyright Office dispute is not appropriate for resolution United States has established through the back door Circular No. 14 (2006), Copyright by the Register and is, in any event, an extraordinarily broad version of the authors’ Registration for Derivative Works, states irrelevant to the Register‘s analysis here moral rights.’’); Precious Moments, Inc. v. La Infantil, Inc., 971 F. Supp. 66, 69 (D. Puerto Rico that ‘‘When the collecting of preexisting since ringtones satisfy the test for 1997) (agreeing with the Seventh Circuit that material that makes up the compilation creativity in any circuit.92 Mirage and its progeny read the originality is a purely mechanical task with no requirement out of the definition of derivative element of editorial selection or when works and ‘‘open[s] the door for the most trivial 89 Id. at 15, comparing Clean Flicks of Colo. v. modifications to generate an infringing derivative only a few minor deletions constitute an Soderbergh, 433 F. Supp. 2d 1236, 1242 (D. Colo. work.’’); Goldstein § 5.3 at 5:81–82; Nimmer on abridgment, copyright protection for the 2006) (holding that ‘‘family friendly’’ edited Copyright § 3.03. Although Copyright Owners assert versions of movies ‘‘are not derivative works and compilation or abridgment as a new that ‘‘to the extent that there is a dispute among the do not violate § 106(2)’’) with Video Pipeline, Inc. version is not available.’’ Copyright circuits as to whether creativity sufficient for v. Buena Vista Home Entm’t, Inc., 192 F. Supp. 2d copyright protection is required for a work to be a Office Circular No. 56 (2006), Copyright 321, 330 (D.N.J. 2002),aff’d on other grounds, 342 derivative work for purposes of infringement, that Registrations for Sound Recordings, F.3d 191 (3d Cir. 2003). dispute is not appropriate for resolution by the 90 RIAA cites Mirage Editions, Inc. v. states, in part that ‘‘[I]f only a few slight Register,’’ the positions taken by the parties on this variations or purely mechanical changes Albuquerque A.R.T. Co., 856 F. 2d 1341 (9th Cir. issue require the resolution of that issue. Having 1988) where the Ninth Circuit affirmed a district concluded that many ringtones do not exhibit (such as declicking or remastering) [of a court finding that mounting legally purchased sufficient creativity to qualify for copyright work] have been made, registration is copies of copyrighted artworks on ceramic tiles protection as derivative works, it is necessary to infringed the right to prepare derivative works. The not possible.’’ determine whether the derivative work right RIAA argues that mastertones and court found that appellant ‘‘made another version’’ nevertheless could be infringed by making and of the artwork that amounted to the preparation of distributing such ringtones. other typical commercial ringtones do a derivative work because it ‘‘ recast or transformed 94 There are marked differences between the not stand on their own as separately the individual images by incorporating them into its making of ringtones and the making of movie copyrightable works under the tile–preparing process.’’ This decision has been trailers in the cited cases. For example, the trailers Copyright Office‘s interpretations. RIAA followed in subsequent cases within the Ninth at issue in Video Pipeline were 120 seconds in Circuit. See, e.g., Micro Star v. Formgen, Inc., 154 length and included the display of the movie cites Section 408.07 of the Compendium F.3d 1107, 1112 (9th Cir. 1998); Sobhani v. Radical studio’s trademark, title of the motion picture, and II of Copyright Office Practices as Media, Inc., 257 F. Supp. 2d 1234 (C.D. Cal. 2003). two or more scenes from the film. See 342 F.3d at support for its argument.96 RIAA argues See id. at 16-17. 195. In any event, the Third Circuit found that the that a partial copy of a commercial 91 Id.at 16. In its Reply Brief, RIAA again argues trailers at issue were essentially copies of the that mastertones and other typical commercial original work that lacked ‘‘any significant sound recording distributed as a ringtones are not derivative works. It states that the transformative quality’’ and any ‘‘creative mastertone or a partial copy of a musical cases cited by Copyright Owners all rely on Ninth ingenuity.’’ Id. at 199–200. The trailer at issue in work distributed as a monophonic or Circuit precedent, and given that it is the lone John Lamb, another case cited by Copyright polyphonic ringtone is not separately Federal circuit in holding that there is a more Owners, was 2 minutes and 40 seconds in length lenient test for infringement of derivative works, and included individual images and scenes, among that approach should be rejected. RIAA Reply Brief other things. Further, the original trailer was 95 See n. 77, 82, supra. at 11. transformed into a 3–D format for use with specially 96 Compendium II of Copyright Office Practices, 92 Copyright Owners Reply Brief at n. 13. engineered eyeglasses. See 949 F. Supp. at 755. § 408.07 (1984).
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protectable as a derivative work under to function as a ringer, with the result answer the phone. Copyright Owners Copyright Office standards.97 To the that a musical phrase is repeated in a also note that some songs result in extent that it may be desirable to make sequence unintended by the author of multiple ringtones, each focusing on technical adjustments to the commercial the work. They add that other different elements of the same sound recording to improve playability mastertones involve the addition of new underlying composition. They state, for on phones, RIAA asserts that process is lyrics, spoken–word interludes, and example, that the Bubba Sparxx/Ying in the nature of remastering and would other material designed to enhance Yang Twins hit, ‘‘Ms. New Booty,’’ has not affect the underlying musical sales. Copyright Owners conclude that, spawned two ringtones–one featuring work.98 As for RIAA‘s reliance on for a derivative work to be copyrightable the lyric ‘‘I found you’’and the other Copyright Office precedent, Copyright under the copyright laws, the ‘‘requisite emphasizing the lyric ‘‘get it right.’’101 Owners refer to Copyright Office level of creativity is extremely low’’ and They also assert that other ringtones Circular No. 14 which states that ‘‘a few the alterations of ringtones in the include new content not present in the minor deletions’’ to a work will not manner described meet this test.99 underlying work. Copyright Owners suffice for a work to be protectable as a RIAA disagrees and asserts that note, for example, that the Pussycat derivative work. Copyright Owners ringtones are nothing more than partial Dolls‘ mastertone derived from the best– respond that ringtones do not involve copies that lack sufficient originality to selling song ‘‘Don‘t Cha’’ features the the mere omission of portions of a work, be protected as derivative works or to lyrics, ‘‘Don‘t cha wish your girlfriend but involve the creative selection of infringe the derivative works right. It was hot like me. Don‘t cha wish your portions of a work and often more. They states that copying a clip to distribute as girlfriend was a freak like me,’’ which assert that the process used to construct a ringtone does not involve the addition are part of, but not all of the lyrics of a thirty second ringtone from a three– of any new material. RIAA argues that the song. This ringtone, which is eleven to–five minute work involves the because the definition of the term seconds, as compared to the four and a ‘‘substantial amount of selectivity’’ ‘‘derivative work’’ applies to both half minute full length work, also acknowledged by the Copyright Office protection and infringement, and includes new material different from to suffice for the creation of a because the definition requires those of the underlying work: ‘‘Come on protectable work. originality in both contexts, copying a boy, don‘t cha wanna pick up? We‘re Analysis. The Copyright Office single short clip from a sound recording ready for ya.’’ These additional words documents, noted above, are instructive. and/or musical work to distribute as a are spoken, not sung, and are not We note that the Circulars are designed mastertone or other ringtone does not accompanied by music. Likewise, to inform members of the public about meet the requirements for copyright Copyright Owners note that in how to register works with the protection as a derivative work or Beyonce‘s mastertone ‘‘Let Me Cater 2 Copyright Office offering guidelines for infringement as a derivative work.100 You,’’ the ringtone contains a portion of instructional purposes. The RIAA has submitted, into the record, a the song, with an extra line added at the Compendium, generally used by the CD with relevant examples of end: ‘‘What‘s up, this is Beyonce from Copyright Office staff, serves as an mastertones, that are simply partial Destiny‘s Child and this call is for you.’’ internal manual detailing what works copies of the underlying musical work. Again, the additional words are spoken, are copyrightable, and therefore In their Reply Brief, Copyright unaccompanied by music. Copyright registrable. Here, the cited materials are Owners reiterate that the creation of Owners have submitted a CD, included based on, and to a large extent, mirror ringtones involves substantial creativity in the record, that contains many more judicial precedent on the subject of and that ringtones do not only feature examples of ringtones that they assert derivative works. Essentially, making the hook of a particular musical work. support their case. ‘‘minor deletions’’ or ‘‘slight variations’’ Moreover, they assert, there is no such Analysis. The ringtone samples to an original work will not result in the thing as a ‘‘typical commercial provided by the parties are instructive. creation of a derivative work because ringtone,’’ as RIAA seems to suggest. The record evidence demonstrates that there is no originality involved in the Rather, they vary in kind and length. not all ringtones are the same. While we new work. Using the cited materials as They note the following examples: (1) need not decide whether all of the references, then, the Copyright Office the ringtone for Leonard Cohen‘s ringtones presented to us are within the would refuse registration of a ‘‘Everybody Knows’’ recording scope of Section 115, we observe that mastertone that is merely an excerpt of comprises nine seconds of the some undoubtedly are not. For example, a full musical work because the new approximately five and a half minute the 16 second mastertone, Grind With work lacks the requisite originality. full length work and the ringtone Me, by performing artist, Pretty Rickey, Examples in the Record. Copyright commences seven seconds into the was created solely for ringtone use and Owners state that creating ringtones song; (2) Britney Spears ‘‘ . . . Baby One the lyrics used therein are not found in involves making alterations to the More Time’’ ringtone consists of a the 4:02 minute full length version of underlying work that require skill, fifteen–second snippet of the recording the work. This ringtone is likely judgment, and creativity. According to that begins two and half minutes into copyrightable as a derivative work Copyright Owners, all ringtones require the three and a half minute song; and (3) because it is original and demonstrates a ‘‘creative spark.’’ In any event, there the exercise of creative judgment in the mastertone for Jay Z‘s ‘‘Change are likely to be many ringtones, such as determining the points in the Clothes,’’ consists of excerpts of two the mastertone that uses a portion of composition where the ringtone should separate hooks repeated twice (even Otis Redding‘s classic ‘‘Sittin‘ On the begin and end so as to maximize appeal though these hooks are separated in the Dock of the Bay,’’ that simply copy a to consumers. They state that the full–length song by other musical portion of the underlying musical work decision as to what portion of a work to content), and then these two snippets and cannot be considered derivative use in the ringtone is not trivial; shorter are further repeated if the caller fails to ringtones are sometimes designed to works because such excerpts do not contain any originality and are created ‘‘loop’’ to achieve the appropriate length 99 Copyright Owners Initial Brief at 14-15, citing Yurman Design, Inc. v. PAJ, Inc., 262 F.3d 101, 109 with rote editing. There are also 97 RIAA Reply Brief at 13. (2d Cir. 2001) (quoting Feist, 499 U.S. at 345). 98 RIAA Initial Brief at 21. 100 RIAA Initial Brief at 19-20. 101 Copyright Owners Reply Brief at 5–6.
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ringtones that contain a portion of the Arrangements. RIAA argues that ringtone is no more of an arrangement full length musical work and additional ringtones are authorized by the of a song than the selection of four notes spoken material such as the Pussycat arrangement privilege set forth in out of all the others is an arrangement Dolls example, above. The Section 115. RIAA argues that even if of a song.108 determination of whether such a the Register were to determine that the RIAA asserts that the definitions of ringtone, or one that includes the creation of mastertones or other ‘‘arrangement’’ that Copyright Owners addition of some new lyrics, results in ringtones necessarily involves provide are unconvincing. It states that a copyrightable derivative work is a preparation of a derivative work, the only definition that even remotely mixed question of fact and law that is Congress specifically authorized the suggests that an arrangement must beyond the scope of this proceeding. creation of certain derivative works always embody the full work and never In sum, there is a broad spectrum of under the express terms of the a partial copy of that work is the ringtones, and whether one would be Copyright Act. RIAA asserts that definition from answers.com, but even considered a derivative work depends creating arrangements by changing the that definition is not particularly upon the nature of the ringtone. At one length of musical works has been an instructive.109 RIAA also argues that end of the spectrum are those ringtones accepted part of industry practice since there is nothing in the Copyright Act, its that are simple excerpts of larger before creation of the mechanical legislative history, or the common usage musical works. This type of ringtone is license. It states that shortening a of these terms to suggest that, by not a derivative work. At the other end musical work is necessary to conform employing the phrase ‘‘musical of the spectrum are ringtones that the song to the style or manner of the arrangements’’ in either Section 101 or contain additional original authorship. performance involved because ringtones Section 115(a)(2), Congress was These would be considered derivative necessitate brevity.104 distinguishing between ‘‘musical works if there was a sufficient amount Copyright Owners take issue with arrangements’’ as a class and musical of creative authorship in the new RIAA‘s stance. They state that RIAA‘s arrangements that happen to shorten material. In between are ringtones that argument rests on a false premise–that versions of the underlying work. RIAA may include some new material (spoken changing the length of a musical work asserts that there are innumerable words or music) in addition to the necessarily results in an arrangement. arrangements of a particular work and a excerpt. Those ringtones cannot be They assert that arrangements are shorter version of such a work is still properly analyzed in a factual vacuum adaptations of whole works and involve referred to as an arrangement.110 and their status as derivative works changes to the style and interpretation Analysis. For purposes of our need not be determined in this of the underlying work. They conclude discussion here, ‘‘arrangement’’ pertains proceeding, but are more appropriately that a portion of a musical work for to the musical aspect of the work, and determined on a case–by–case basis by inclusion in a ringtone is not an not to changes in lyrics. Even so, the courts. arrangement of the underlying work.105 defining the parameters of Section 115(a)(2) is difficult because there is no VI. The ‘‘Arrangement Privilege’’ Copyright Owners strongly assert that a ringtone is not a musical arrangement precedent and there is no common Section 115(a)(2) of the Copyright Act as that term is understood in the music ground among the parties regarding the states that the ‘‘compulsory license business. They state that it is well appropriate definition of includes the privilege of making a settled in the music industry that ‘‘arrangement’’for Section 115 purposes. musical arrangement of the work to the arrangements, intended to permit Here, the parties have used various extent necessary to conform it to the alterations solely in interpretation and dictionaries and web sites to support style or manner of interpretation of the style, are adaptions of entire works.106 their definitional argument, but there is performance involved, but the They note that an arrangement, as no consensus on what sources are valid arrangement shall not change the basic defined by the American Federation of and reliable. While Copyright Owners‘ melody or fundamental character of the Musicians, is ‘‘the art of preparing and definition is appropriate to use in this work, and shall not be subject to adapting an already written composition context, we believe that the definition protection as a derivative work under for presentation in other than its found in the New Encyclopedia of Music this title, except with express consent of original form. An arrangement may and Musicians (‘‘NEMM’’) is as reliable, the copyright owner.’’102 (Emphasis include reharmonization, paraphrasing, if not more comprehensive.111 NEMM added) According to the Act‘s legislative and/or development of a composition, history, the purpose of the limitations in so that it fully represents the melodic, 108 Id. at 15–16. 109 Section 115(a)(2) was to prevent the 107 RIAA Reply Brief at 15, and n. 11, citing harmonic, and rhythmic structure.’’ www.answers.com/topic/arrangement (stating that musical composition from being They assert that, by definition, there an arrangement ‘‘fully represents the melodic, 103 ‘‘perverted, distorted, or travestied.’’ cannot be a ten–second arrangement of harmonic, and rhythmic structure’’ of the work,’’ a three minute composition and a but also stating that an arrangement ‘‘may specify 102 17 U.S.C. § 115(a)(2). or vary some or all of . . . [the] sequence, including 103 H. R. Rep. 94–1476 at 62 (1976) (‘‘The second the order and number of repeats of sections such respect for the integrity of a musical composition clause of subsection (a) is intended to recognize the as verses and choruses. . .introduction, coda, evinces Congressional regard for the moral rights of practical need for a limited privilege to make modulations, and other variations.’’ composers [.]’’). arrangements of music being used under a 110 Id. at 16. 104 compulsory license, but without allowing the music RIAA Initial Brief at 23-25. 111 We note that when examining musical works to be perverted, distorted, or travestied. Clause (2) 105 Copyright Owners Reply Brief at 12. for the purpose of copyright registration, the permits arrangements of a work ‘‘to the extent 106 Id. at 3. Performing Arts Section of the Copyright Office necessary to conform it to the style or manner of 107 Copyright Owners Initial Brief at 16, citing defines ‘‘arrangement’’ as ‘‘harmony added to an interpretation of the performance involved,’’ so long http://www.answers.com/topic/arrangement. They existing melody, or a transcription, such as a band as it does not ‘‘change the basic melody or also cite the Oxford English Dictionary (an arrangement of a piano piece.’’ Copyright Office fundamental character of the work.’’ The provision arrangement is ‘‘[t]he adaptation of a composition examiners also rely on the definition of also prohibits the compulsory licensee from for voices or instrument for which it was not ‘‘arrangement’’ in Section 408.01 of Compendium II claiming an independent copyright in his originally written.’’) and the Cambridge Advanced of Copyright Office Practices which states that: ‘‘A arrangement as a ‘‘derivative work’’ without the Learner’s Dictionary (an arrangement is ‘‘[a] piece musical arrangement is a work that results from the express consent of the copyright owner.’’); see also, of music that has been changed so that it can be addition of new harmony to a preexisting work. The Nimmer on Copyright 17 U.S.C. § 115(a)(2). 8.04[F] played in a different way, especially by a different standard of originality for arrangements takes into (noting in reference to Section 115(a)(2) that ‘‘Such instrument’’). Continued
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defines an arrangement as ‘‘The process analyzed and discussed in detail in the contravention of Congressional intent. or result of readjusting a work for derivative work section above. Our RIAA asserts that since Copyright performance by different artistic means conclusion here is bolstered by the fact Owners frequently license large parts of from that originally intended. Also, a that the term abridgement does not their catalogs for use as ringtones, that relatively close or literal rendering of appear in Section 115(a)(2), but it does use cannot be said to be to the material the substance and form of a work with appear in the definition of derivative detriment of the work.120 RIAA only those modifications demanded by works in Section 101 of the Copyright concludes that creating a partial copy of the limitations or peculiarities of the Act. the work does not constitute a radical medium in view.’’112 We can make three Fundamental Character of the Work. alteration, and if it did, mastertones general observations based on the Copyright Owners state that even would not be commercially successful. definitions and the law. First, the user‘s assuming, for argument‘s sake, that Analysis. Before discussing the right to make a melodic arrangement ringtones qualify as musical ‘‘fundamental character’’ issue, we must should be limited so that the basic arrangements, Section 115 is note that the arrangement privilege does character of the musical work is inapplicable because the basic melody not represent the outer limit of what preserved.113 Second, a mastertone that and fundamental character of the other kinds of changes (apart from what merely shortens the full length work to underlying work has been changed. is conventionally understood as an conform it to the physical limitations of They assert that ringtones delete large arrangement) may be made to a musical the cellphone does not affect the portions of the underlying works work within the scope of the Section musical work‘s arrangement. Finally, a including much of the melody, verses, 115 statutory license. In this sense, an ringtone that makes minor changes to bridges, codas, and instrumental analysis of the arrangement privilege as lyrics of the underlying musical work interludes. They conclude that the it applies to mastertones is irrelevant generally does not affect its reduction of a work to a short refrain except to the extent that some of these arrangement.114 There may be other excludes all of the other elements that types of ringtones may actually tinker ringtones that are substantially different make up the overall character of the with the style and interpretation of the from the underlying musical work, but work.117 underlying work. Mastertones are taken whether such changes impinge upon the Copyright Owners assert that from commercially released sound arrangement of the work is a factual ringtones change the character of the recordings which may involve question, which goes beyond the scope underlying work in other ways as well. arrangements, but for purposes of this of this proceeding. They assert that ringtones transform proceeding, we assume that the Copyright Owners assert that artistic works into utilitarian substitutes commercially released sound recording ringtones are actually abridgements, not for the ring of the telephone; the was licensed (either by means of a arrangements, of a musical work, and character of a musical work voluntary license or the statutory therefore they fall outside the Section fundamentally changes when the license), and that the arrangement in the 115 license.115 While Copyright Owners ‘‘original artistic vision expressed by the sound recording was within the scope of do not fully state what constitutes an work in the form of a full–length song the license. In such cases, which we abridgement for the purposes of Section is superseded by a new purpose of will assume to be the norm, the use of 115(a)(2), RIAA takes issue with this serving as a thirty second mobile phone the same arrangement in the mastertone conclusion and cites a litany of ringer.’’ Copyright Owners argue that would not be in contravention of the definitions, references, and examples to the use of a musical work as a ringtone limitations of Section 115(a)(2). Given support its case.116 In this context, and departs from the integrity of the original this conclusion, we need not without adequate explanation from the composition, ‘‘a result that Congress specifically address whether Copyright Owners, we surmise that the properly avoided’’ by excluding such mastertones change the fundamental gist of their argument is that a ringtone uses from the Section 115 scheme.118 character of the work, but a statutory abridges a full length musical work, and RIAA asserts that typical commercial analysis is still necessary to determine as such, should be considered a ringtones do not change the basic the legal status of monophonic and derivative work. If that is the case, we melody of a musical work; to the polyphonic ringtones under Section need not re–examine the matter as it is contrary, ringtones by their very nature 115. seek to accurately reproduce the basic As stated above, Section 115(a)(2) of consideration the fact that a melody carries with it melody with little or no alteration. the Copyright Act permits statutory a certain amount of implied harmony.’’ RIAA asserts that the limitations in Compendium II of Copyright Office Practices, licensees to make a musical § 408.07 (1984). Section 115(a)(2) to prevent changes to arrangement of the work ‘‘to the extent 112 See Waldo Selden Pratt, The New the ‘‘basic melody and fundamental necessary to conform it to the style or Encyclopedia of Music and Musicians, Macmillan character of the work’’ were added manner of interpretation of the (1929). specifically to address the objections of performance involved,’’ but the 113 See Preliminary Draft for Revised U.S. the copyright owners that the Copyright Law and Discussion and Comments on arrangement shall not ‘‘change the basic the Draft. House Comm. on the Judiciary, 88th arrangement privilege would otherwise melody or fundamental character of the Cong., Copyright Revision Part 3, at 444 (1964). allow ‘‘radical alterations’’ to the work.’’121 The Act‘s legislative history 114 See Shapiro, Bernstein& Co., Inc. v. Jerry Vogel ‘‘material detriment of the work.’’119 states that the provision was enacted to Music Co., Inc. (S.D.N.Y. 1947) (holding that a new RIAA states that in the case of prevent the music from being version of copyrighted song ‘‘Melancholy’’ under 122 the title ‘‘My Melancholy Baby’’ with an additional mastertones, the melody is exactly the ‘‘perverted, distorted, or travestied.’’ chorus in march time, but using identical lyrics same as in the commercial sound except for a slight variation in the base of the recording release and distributing a clip 120 RIAA Initial Brief at 26. accompaniment, did not constitute a copyrightable does not radically alter, pervert, distort, 121 17 U.S.C. § 115(a)(2). new work). or travesty the musical work in 122 See H. R. Rep. No. 94-1476, at 109 (1976). 115 Copyright Owners Initial Brief at n. 6. Congress did not define the terms ‘‘perverted,’’ 116 RIAA Reply Brief at 15. For example, referring ‘‘distorted,’’ or ‘‘travestied.’’ However, the America to Cambridge Advanced Learner’s Dictionary, RIAA 117 Copyright Owners Initial Brief at 16–17. Heritage Dictionary defines ‘‘perverted’’ as states that an abridgment is ‘‘to make a book, play 118 Id. at 17. ‘‘Deviating from what is considered right and or piece of writing shorter by removing details and 119 RIAA Reply Brief at 14, citing Goldstein, correct.’’ It defines ‘‘distorted’’ as ‘‘to give a false unimportant information.’’ § 7.4.2, n. 7. or misleading account of.’’ And, it defines
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The language of the statute was meant creator to a copyright on the new Copyright Owners assert that to avoid the desecration of the material.’’125 ringtones fail to satisfy Section 115’s underlying musical work.123 Under the requirement that the phonorecords be statute, it is reasonable to conclude that Under Woods, a typical monophonic distributed for private use. They argue a portion of a pre–existing musical work or a polyphonic ringtone would be that the ‘‘private use’’ limitation truncated to ringtone length does not considered a mere ‘‘stylized version’’ of contemplated by Congress includes only change the basic melody and the original musical work with no ordinary listening use for private changes to the melody, but perhaps fundamental character of the work. enjoyment of music. To bolster their some changes to the tempo. In such Certainly, this conclusion applies to argument that a ringtone serves only cases, an electronic synthesizer may mastertones, and it would almost public functions, Copyright Owners generate a monophonic or polyphonic always apply to monophonic or assert that a ringtone: (1) is no substitute adaptation of the underlying musical polyphonic ringtones that preserve the for enjoyment of the full length musical work for play on a cellphone, and the basic melody of the underlying musical work; (2) provides the notification ringtone may have been conformed to fit work. As such, we cannot conclude that functions of a phone ring; and (3) is within the parameters of its intended the musical work customized for marketed as a lifestyle accessory. They use. However, where the ringtone has ringtone purposes has been perverted, conclude that ringtones provide mobile distorted, or travestied, as those terms added non–trivial ‘‘new material,’’ such that it would be considered a derivative phone users a means to publicly are commonly defined, as no changes identify and express themselves to their have been made to the melody of the work, the Section 115 license may not be available because the ringtone was friends, colleagues and the public at original work.124 In sum, we do not large.129 believe, as Copyright Owners argue, that not changed simply to conform it for use in a cellphone.126 RIAA asserts that ringtones are the reduction of a work to a short distributed to individual consumers for excerpt fundamentally changes the VII. Private Use private use. It states Copyright Owners‘ overall character of the work or impugns Section 115 states that ‘‘a person may arguments ignore common sense, the the integrity of the work. obtain a compulsory license only if his relevant statutory language, and the In the absence of a case directly or her primary purpose in making legislative history of the Copyright Act. addressing the scope of Section phonorecords is to distribute them to RIAA states that although ringtones do 115(a)(2), it is useful to examine the public for private use including by provide users a means to identify and precedent involving the derivative work means of a digital phonorecord express themselves, that is true for any rights in a musical composition. For delivery.’’127 According to the Act‘s phonorecord. RIAA asserts that all kinds example, in Woods v. Bourne, the legislative history, the ‘‘private use’’ of phonorecords distributed and sold to Second Circuit discussed the factors limitation was added to Section 115 to private customers are sometimes used in upon which a derivative musical work clarify that manufacturers of specialty public, yet no one argues that such uses may be considered an original work for recordings for use in jukeboxes and make the Section 115 license copyrightability purposes: business music services could not rely inapplicable. It argues that uses of CDs in public places, for example, do not ‘‘something of substance added making on the mechanical license in their use the piece to some extent a new work of musical works.128 make the Section 115 license with the old song embedded in it but unavailable to distributors for the from which the new has developed. It is 125 Woods, 60 F.3d at 991 (quoting Woods v. simple reason that it is the primary not merely a stylized version of the Bourne Co., 841 F. Supp. 118, 121 (S.D.N.Y. 1994)). purpose of the distributor, not the use original song where the major artist may In Woods, the District Court decided the novel issue by the consumer, that is relevant. of whether any musical additions or variations to take liberties with the lyrics or the According to RIAA, the phrase ‘‘private tempo, the listener hearing basically the the preexisting melody and lyrics of a song resulted in a derivative work that was entitled to copyright use’’ is not the opposite of ‘‘public original tune. It is, in short, the addition protection. In order to qualify as a derivative performance,’’ but means ‘‘personal’’ or of such new material as would entitle the musical work, the court found that ‘‘there must be ‘‘noncommercial use.’’ RIAA asserts that present more than mere cocktail pianist variations ‘‘travestied’’ as ‘‘An exaggerated or grotesque of the piece that are standard fare in the music trade ringtones satisfy the private use imitation, such as a parody of a literary work.’’ See by any competent musician. . . . [There must be] requirement because the primary http://dictionary.reference.com for these something of substance added making the piece to definitions. some extent a new work with the old song example, to reproduction in a motion picture sound 123 See Preliminary Draft for Revised U.S. embedded in it but from which the new has track or recording primarily for use in broadcasts, Copyright Law and Discussion and Comments on developed. . . . It is, in short, the addition of such wired music transmissions, or jukeboxes.’’). See the Draft. House Comm. on the Judiciary, 88th new materials as would entitle the creator to a also H. R. Rep. No. 94–1476, at 108 (1976) (‘‘The Cong., Copyright Law Revision Part 3, at 444 (1964) copyright in the new material.’’ See Agee v. second sentence of clause (1), which has been the (noting the concern of composers: ‘‘We have had Paramount Commc’ns, Inc, 853 F. Supp. 778, 788 subject of some debate, provides that ‘a person may numerous instances where a record manufacturer (S.D.N.Y. 1994), aff’d in part, rev’d in part on other obtain a compulsory license only if his or her has taken a sacred or serious composition and grounds, 59 F.3d 17 (2d Cir. 1995);see also, Shapiro, primary purpose in making phonorecords is to without authority changed it into a Rock and Roll Bernstein & Co. v. Jerry Vogel Music Co., 73 F. distribute them to the public for private use.’’’ This or jazz arrangement in such a manner as to Supp. 165, 167 (S.D.N.Y. 1947) (finding changes in provision was criticized as being discriminatory constitute a desecration. We have also had the rhythm and accompaniment, without changes against background music systems, since it would instances of unauthorized adaptations which are in the tune or lyrics, were not protectable as a prevent a background music producer from making beyond the limits of reason and good taste; the derivative work). recordings without the express consent of the writing and recording of lyrics to instrumental 126 See Gilliam v. American Broadcasting Comp., copyright owner; it was argued that this could put compositions; the making and recording of Inc., 583 F. 2d 14, 20–21 (2d Cir. 1976) (holding the producer at a great competitive disadvantage burlesque versions and the recording of salacious that a licensee infringes a copyright where it with performing rights societies, allow versions.’’) publishes the protected work after making discrimination, and destroy or prevent entry of 124 The legislative history notes that the statutory extensive, unauthorized changes which impair the businesses. The committee concluded, however, licensee should have some latitude, but not integrity of the original work). that the purpose of the compulsory license does not complete freedom, to alter the character of the 127 17 U.S.C. § 115(a)(1). extend to manufacturers of phonorecords that are work. See Further Discussions and Comments on 128 See Supplementary Register’s Report on the intended primarily for commercial use, including the Preliminary Draft for Revised U.S. Copyright General Revision of the U.S. Copyright Law: 1965 not only broadcasters and jukebox operators but Law. House Comm. on the Judiciary, 88th Cong., Revision Bill, House Comm. on the Judiciary, 89th also background music services.’’). Copyright Law Revision Part 4, at 430 (Comm. Print Cong., Copyright Law Revision Part 6, at 55 (Comm. 129 Copyright Owners Initial Brief at 17-19, citing 1964). Print 1965) (‘‘[T]he provision would not apply, for H.R. Rep. No. 90–83, at 68 (1967).
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purpose of the distributor is to authority of the copyright owner.’’ ringtone, released with the permission distribute them to individual consumers According to the Act‘s legislative of the copyright owner of the underlying for their own personal use and history, once a musical work has been musical work, does constitute a enjoyment, on those consumers‘ cell recorded and ‘‘distributed to the derivative work, then once that phones, in whatever manner the public,’’ any person may obtain a derivative work has been distributed consumer sees fit, not to distribute them compulsory license by complying with under the authority of the copyright for commercial use such as public the provisions of Section 115.133 owner, anyone else may, by complying broadcasting, in motion pictures, RIAA argues that a ringtone would be with the formal requirements of Section business music services or jukeboxes.130 subject to statutory licensing after first 115, obtain a compulsory license to Analysis. We believe that Copyright use even if it were not otherwise make and distribute copies of that Owners‘ arguments are inconsistent covered by Section 115(a)(2). RIAA derivative work. with the law and ignore common uses explains that even if certain musical of music by individuals. The controlling works may be outside the scope of the IX. Conditions and Limitations language here is ‘‘for private use.’’ It is statute in the first instance, Section 115 As noted above, the Copyright Royalty undisputed that the term is directed at nonetheless would apply to the new Board asked the Register to address the individual consumers who use music musical work once that version was first legal conditions and/or limitations that for personal enjoyment. However, distributed under the authority of the would apply to ringtones if such works Copyright Owners seem to suggest that copyright owner. RIAA states that were found to DPDs under Section 115 once an individual takes the music out assuming for the sake of argument that of the Act. of the home, the statutory provision a ringtone–length version of a musical RIAA asserts that the same conditions becomes null and void.131 This cannot work is a derivative work outside the and limitations that apply to other be what Congress intended. Here, we scope of the Section 115 license, the phonorecords apply to ringtones. It note that traditional phonorecords are music publisher would have the right to posits that first use of the song under used in public (e.g., in boom boxes in prevent distribution of that ringtone– the authority of the copyright owner, public parks, in a car stereo while the length work. However, once the notice, and payment of royalties, would automobile is driving down the street, publisher allowed one record company be among the statutory conditions that etc.), but that does not disqualify them or ringtone distributor to distribute would apply to the licensing of from the statutory license by violating phonorecords of that ringtone–length ringtones.136 their primary purpose of being for work, the ordinary operation of Section Copyright Owners assert that there is private use. While it may be true that 115 would then allow any person to no need for any limitations or some mobile phone users purchase obtain a statutory license with respect to conditions on the licensing of ringtones ringtones to identify themselves in the ‘‘new’’ringtone version in under Section 115, as all ringtones are public, this use most likely would not question.134 excluded from the reach of the statute be considered a public use as Congress Copyright Owners disagree that as a matter of law. They note, however, intended that term to be understood in ringtones are subject to Section 115 after that if the Register were to conclude that the Section 115 context, and in any the public distribution by the copyright some ringtones are subject to statutory event, there is no basis to conclude that owner. They state that RIAA‘s argument licensing, the appropriate scope of such the primary purpose of the ringtone is ‘‘premised on the inaccurate licensing would involve factual issues. distributor is to distribute the ringtone assumption that Section 115 applies to Copyright Owners state that in this case, for ‘‘public’’use. The legislative history every digital transmission of a the Copyright Royalty Boards‘ August accompanying Section 115(a)(1) does copyrighted phonorecord.’’ They 18, 2006 Order prohibited the not contradict this conclusion. In fact, it reiterate that ringtones are not subject to submission of factual material that is clarifies that ‘‘the purpose of the Section 115 because they are not required to make a reasoned compulsory license does not extend to complete musical works as required by determination of conditions on the manufacturers of phonorecords that are Section 115, and in any event, the licensing of ringtones within Section intended primarily for commercial use, license is narrow and does not apply to 115. They assert that the Copyright including not only broadcasters and works that are not distributed for private Royalty Boards‘ decision not to permit jukebox operators but also background use.135 the submission of factual materials music services.’’132 Section 115 does Analysis. We find that RIAA‘s reading makes it ‘‘impossible to delineate’’ any not, however, impose any limitations on of the statute is a reasonable one. The informed conditions or limitations on the use of a phonorecord once it is issue arises only if a particular ringtone the statutory licensing of ringtones.137 purchased by the consumer. As such, qualifies as a derivative work due to the Analysis. We believe that Section Section 115(a)(1) is not a bar to the presence of copyrightable derivative 115’s general requirements are inclusion of ringtones under the work authorship in the ringtone. If, as applicable to all types of ringtones statutory license. we expect will usually be the case, the (monophonic, polyphonic, or ringtone is not a derivative work, there mastertone). This applies to mastertones VIII. First Use will be no reason to reach this issue; the that are simple excerpts of the The Section 115 license is available ringtone will be within the scope of the underlying musical work, ringtones ‘‘[w]hen phonorecords of a nondramatic Section 115 license for the reasons (monophonic, polyphonic, and musical work have been distributed to stated above. However, if a particular mastertones) that are not adjudged to be the public in the United States under derivative works, and those ringtones 133 17 U.S.C.§ 115(a)(1). Mirroring the statutory that do not change the basic melody or 130 RIAA Reply Brief at 17. language, the provision’s legislative history states fundamental character of the work. For 131 See Copyright Owners Initial Brief at 19 (‘‘In that the Section 115 license is ‘‘available to anyone newly created ringtones that have not sum, far from being used for private musical as soon as ‘phonorecords of a nondramatic musical entertainment in one’s home, ringtones provide work have been distributed to the public in the been distributed to the public, and that mobile phone users a means to identify themselves United States under the authority of the copyright to their friends, colleagues and the public at owner.’’’ See H. R. Rep. No. 94 § 1476 (1976). 136 RIAA Reply Brief at 19, citing 17 U.S.C. large.’’). 134 RIAA Initial Brief at 26–27. §§115(a)(1), 115(b), and 115(c)(2). 132 See n.128, supra. 135 Copyright Owners Reply Brief at 17–18. 137 Copyright Owners Reply Brief at 20 and n. 7.
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fall outside the scope of the statute SUPPLEMENTARY INFORMATION: Section Stat. 2341 (2004). See 69 FR 5695 because they are derivative works or for 106(6) of the Copyright Act, title 17 of (February 6, 2004). any other reason outlined above, the the United States Code, gives the This Act, which the President signed Section 115 provisions do not apply. A copyright owner of a sound recording into law on November 30, 2004, and commercial license is required to make the right to perform a sound recording which became effective on May 31, and distribute those types of ringtones. publicly by means of a digital audio 2005, amends the Copyright Act, title 17 There will, of course, be some instances transmission, subject to certain of the United States Code, by phasing where the status of a ringtone limitations. Among these limitations are out the CARP system and replacing it (monophonic, polyphonic, and certain exemptions and a statutory with three permanent Copyright Royalty mastertones) for Section 115 purposes is license which allows for the public Judges (‘‘CRJs’’). Consequently, the CRJs unclear. A judicial determination would performance of sound recordings as part will carry out the functions heretofore be required where such mixed question of ‘‘eligible nonsubscription performed by the CARPs, including the of fact and law are present. transmissions’’ and digital adjustment of rates and terms for certain While we cannot delineate a litmus transmissions made by ‘‘new statutory licenses such as the section test that will in every case determine subscription services.’’ 17 U.S.C. 114. 114 and 112 licenses. However, section specifically whether a particular The Copyright Act, title 17 of the United 6(b)(3) of the Act states in pertinent ringtone is or is not within the scope of States Code, defines these terms as part: the statutory license, the guidance follows: offered above is sufficient for purposes [t]he rates and terms in effect under of this proceeding. In general, a ringtone An ‘‘eligible nonsubscription section 114(f)(2) or 112(e) . . . on will fall within the scope of the transmission’’ is a noninteractive digital December 30, 2004, for new subscription services [and] eligible nonsubscription compulsory license unless it has so audio transmission which, as the name implies, does not require a subscription services . . . shall remain in effect until altered the musical composition as to for receiving the transmission. The the later of the first applicable effective constitute a derivative work. Simply transmission must also be made as a part date for successor terms and rates . . . or excerpting a single portion of a licensed of a service that provides audio such later date as the parties may agree sound recording of a musical programming consisting in whole or in or the Copyright Royalty Judges may composition will not constitute the part of performances of sound recordings establish. making of a derivative work. It is clear the primary purpose of which is to that many, but not all, ringtones will fall provide audio or entertainment Successor rates and terms for these within the scope of the Section 115 programming, but not to sell, advertise, licenses have not yet been established. license. Therefore, it is appropriate for or promote particular goods or services. Accordingly, the terms of the section 114 and 112 licenses, as currently the Copyright Royalty Judges to See 17 U.S.C. 114(j)(6). determine royalties to be payable for the constituted, are still in effect. making and distribution of ringtones A ‘‘new subscription service’’ is ‘‘a One of the current terms, set forth in under the compulsory license. service that performs sound recordings § 262.6 of title 37 of the Code of Federal Dated: October 16, 2006 by means of noninteractive subscription Regulations, states that SoundExchange, digital audio transmissions and that is as the Designated Agent, may conduct a Marybeth Peters, not a preexisting subscription or a single audit of a Licensee for the Register of Copyrights. preexisting satellite digital audio radio purpose of verifying their royalty service.’’ payments. As a preliminary matter, the [FR Doc. E6–18426 Filed 10–31–06; 8:45 am] Designated Agent is required to submit BILLING CODE 1410–30–S 17 U.S.C. 114(j)(8). a notice of its intent to audit a Licensee Moreover, these services may make with the Copyright Office and serve this LIBRARY OF CONGRESS any necessary ephemeral reproductions notice on the service to be audited. 37 to facilitate the digital transmission of CFR 262.6(c). Copyright Office the sound recording under a second On December 23, 2005, license set forth in section 112(e) of the SoundExchange filed with the [Docket No. 2006-6] Copyright Act. Use of these licenses Copyright Office a notice of intent to audit Live365 for the years 2002, 2003, Notice of Intent to Audit requires that services make payments of royalty fees to and file reports of sound and 2004. See 72 FR 624 (January 5, AGENCY: Copyright Office, Library of recording performances with 2006). Subsequently, on October 5, Congress. SoundExchange. SoundExchange is a 2006, SoundExchange filed a second notice of intent to audit Live365,1 ACTION: Public notice. collecting rights entity that was designated by the Librarian of Congress pursuant to § 262.6(c), notifying the SUMMARY: The Copyright Office of the to collect statements of account and Copyright Office of its intent to expand Library of Congress is announcing royalty fee payments from services and its current audit to cover 2005. Section receipt of a notice of intent to audit distribute the royalty fees to copyright 262.6(c) requires the Copyright Office to 2005 statements of account concerning owners and performers entitled to publish a notice in the Federal Register the eligible nonsubscription and receive such royalties under sections within thirty days of receipt of the filing subscription transmissions of sound 112(e) and 114(g) following a announcing the Designated Agent’s recordings made by Live365, Inc. proceeding before a Copyright intent to conduct an audit. (‘‘Live365’’) under statutory licenses. Arbitration Royalty Panel (‘‘CARP’’)— In accordance with this regulation, FOR FURTHER INFORMATION CONTACT: the entity responsible for setting rates the Office is publishing today’s notice to Tanya M. Sandros, Associate General and terms for use of the section 112 and fulfill this requirement with respect to Counsel, Copyright GC/I&R, P.O. Box section 114 licenses prior to the passage 1 A copy of the new Notice of Intent to Audit 70400, Southwest Station, Washington, of the Copyright Royalty and Live365, Inc. is posted on the Copyright Office Web DC 20024-0977. Telephone: (202) 707- Distribution Reform Act of 2004 site at http://www.copyright.gov/carp/live365- 8380. Telefax: (202) 252-3423. (‘‘CRDRA’’), Pub. L. No. 108–419, 118 notice.2005.pdf.
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the notice of intent to audit filed by Conservation Act of 1978, Pub. L. 95– Technical Services Company, LLC, SoundExchange on October 5, 2006. 541. Polar Services, 7400 S. Tucson Way, Centennial, CO 80112–3938. Dated: October 26, 2006 SUMMARY: The National Science Tanya M. Sandros, Foundation (NSF) is required to publish Activity for Which Permit is Associate General Counsel. notice of permit applications received to Requested: Enter an Antarctic Specially [FR Doc. E6–18422 Filed 10–31–06; 8:45 am] conduct activities regulated under the Protected Area. The applicant proposes BILLING CODE 1410–33–S Antarctic Conservation Act of 1978. to enter the Cape Shirreff Antarctic NSF has published regulations under Specially Protected Area (ASPA #149) the Antarctic Conservation Act at Title to gain access to a U.S. Antarctic NATIONAL FOUNDATION ON THE 45 Part 670 of the Code of Federal Program (USAP) field research camp. ARTS AND THE HUMANITIES Regulations. This is the required notice Access to the camp is for: (a) Movement of permit applications received. of personnel and supplies from ship to National Endowment for the Arts; Arts DATES: Interested parties are invited to shore via Zodiac or other small boat; (b) Advisory Panel submit written data, comments, or opening and closing tasks for the views with respect to this permit research facilities on shore; and, (c) Pursuant to Section 10(a)(2) of the application by December 1, 2006. This maintenance and servicing of on-shore Federal Advisory Committee Act (Public application may be inspected by facilities and equipment. Law 92–463), as amended, notice is interested parties at the Permit Office, hereby given that a meeting of the Arts address below. Location: Avian Island (ASPA #149). Advisory Panel to the National Council ADDRESSES: Comments should be Dates: October 23, 2006 to August 31, on the Arts will be held at the Nancy addressed to Permit Office, Room 755, 2010. Hanks Center, 1100 Pennsylvania Office of Polar Programs, National 3. Applicant: Anne Aghion (Permit Avenue, NW., Washington, DC 20506 as Science Foundation, 4201 Wilson follows (ending times are approximate): Application No. 2007–020), P.O. Box Boulevard, Arlington, Virginia 22230. 1528, New York, NY 10276. Theater (application review): November FOR FURTHER INFORMATION CONTACT: Activity for Which Permit is 14–17, 2006 in Room 730. This Nadene G. Kennedy at the above meeting, from 9 a.m. to 5 p.m. on address or (703) 292–7405. Requested: Enter Antarctic Specially Protected Areas. The applicant plans to November 14th, 15th, and 16th and SUPPLEMENTARY INFORMATION: The from 9 a.m. to 3 p.m. on November National Science Foundation, as enter the historic huts at Cape Evans 17th, will be closed. directed by the Antarctic Conservation (ASPA #155), Cape Royds (ASPA #157), The closed portions of meetings are Act of 1978 (Pub. L. 95–541), as and Hut Point (ASPA #158) for the for the purpose of Panel review, amended by the Antarctic Science, purpose of filming a documentary. This discussion, evaluation, and Tourism and Conservation Act of 1996, documentary is about the human recommendations on financial has developed regulations for the experience of working and living in assistance under the National establishment of a permit system for Antarctica. Access to the historic huts is Foundation on the Arts and the various activities in Antarctica and to document the emotions displayed by Humanities Act of 1965, as amended, designation of certain animals and visitors when experiencing the huts, the including information given in certain geographic areas requiring historical connection and to the original confidence to the agency. In accordance special protection. The regulations Antarctic explorers. with the determination of the Chairman establish such a permit system to Location: Cape Evans (ASPA #155), of April 8, 2005, these sessions will be designate Antarctic Specially Protected Cape Royds (ASPA #157) and Hut Point closed to the public pursuant to Areas. (ASPA #158). subsection (c)(6) of section 552b of Title The applications received are as 5, United States Code. follows: Dates: November 01, 2006 to Further information with reference to 1. Applicant: Samuel D. Feola (Permit December 31, 2006. these meetings can be obtained from Ms. Application No. 2007–018), Raytheon 4. Applicant: Werner Herzog (Permit Kathy Plowitz-Worden, Office of Technical Services Company, LLC, Application No. 2007–021), 8865 Polar Services, 7400 S. Tucson Way, Guidelines & Panel Operations, National Wonderland Avenue, Los Angeles, CA Centennial, CO 80112–3938. Endowment for the Arts, Washington, 90046–1851. DC 20506, or call 202/682–5691. Activity for Which Permit is Requested: Enter an Antarctic Specially Activity for Which Permit is Dated: October 27, 2006. Protected Area. The applicant proposes Requested: Enter an Antarctic Specially Kathy Plowitz-Worden, to enter the Avian Island Antarctic Protected Area. The applicant plans to Panel Coordinator, Panel Operations, Specially Protected Area (ASPA #117) enter the historic hut at Cape Royds National Endowment for the Arts. to gain access to a U.S. Antarctic (ASPA #157) for the purpose of filming [FR Doc. E6–18453 Filed 10–31–06; 8:45 am] Program (USAP) field research camp. a documentary. This documentary is BILLING CODE 7537–01–P Access to the camp is for: (a) Movement being filmed for the U.S. Discovery of personnel and supplies from ship to Channel. shore via Zodiac or other small boat; (b) Location: Cape Royds (ASPA #157). NATIONAL SCIENCE FOUNDATION opening and closing tasks for the research facilities on shore; and, (c) Dates: November 14, 2006 to Notice of Permit Applications Received maintenance and servicing of on-shore December 18, 2006. Under the Antarctic Conservation Act facilities and equipment. of 1978 (Pubic Law 95–541) Location: Avian Island (ASPA #117). Nadene G. Kennedy, Dates: October 23, 2006 to August 31, Permit Officer, Office of Polar Programs. AGENCY: National Science Foundation. 2010. [FR Doc. E6–18387 Filed 10–31–06; 8:45 am] ACTION: Notice of permit applications 2. Applicant: Samuel D. Feola (Permit BILLING CODE 7555–01–P received under the Antarctic Application No. 2007–019), Raytheon
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NATIONAL SCIENCE FOUNDATION FOR FURTHER INFORMATION CONTACT: security standards recommended by the Leslie Jensen (703) 292–5065. Department of Justice in their report Privacy Act of 1974; System of entitled, Vulnerability Assessment of Words of Issuance Records Federal Facilities. The report establishes For the reasons stated in the ‘‘agency photo ID for all personnel ACTION: Notice of proposed revisions to preamble, the National Science displayed at all times’’ as a minimum an existing Privacy Act system of Foundation is revising ‘‘NSF Photo standard for Level IV facilities. NSF has records NSF–66: NSF Photo Identification Card System (NSF–66),’’ been designated as a Level IV facility. 5 Identification Card System. to describe the additional types of U.S.C 301. information being collected by NSF as SUMMARY: The National Science required by Homeland Security PURPOSE(S): Foundation proposes to revise an Presidential Directive 12 (Policy for a The information is used for producing existing systems of records titled ‘‘NSF Common Identification Standard for photo identification cards for access to Photo Identification Card System (NSF– Federal Employees and Contractors). the building as well as for building 66),’’ last published on August 21, 1998 security, for identifying the bearer of the National Science Foundation (64 FR 44937). card as a Federal employee or The system of records is being revised SYSTEM NAME: contractor, for changing access to describe the additional types of NSF Photo Identification Card System permissions on cards, and for tracking information being collected by NSF as (NSF–66). stolen or lost cards. The identity required by Homeland Security credential/ID card permits entry into Presidential Directive 12 (Policy for a SYSTEM LOCATION: NSF facilities. Common Identification Standard for National Science Foundation, Federal Employees and Contractors). Division of Administrative Services, ROUTINE USES OF RECORDS MAINTAINED IN THE This system collects information to 4201 Wilson Blvd., Arlington, VA SYSTEM, INCLUDING CATEGORIES OF USES AND THE PURPOSES OF SUCH USES: produce photo identification cards for 22230; and XTec, Incorporated, 5775 access to NSF facilities as well as for Blue Lagoon Dr., Suite 280, Miami, Information from this system may be building security, for identifying the Florida 33126–2034. disclosed to: bearer of the card as a Federal employee 1. Individuals, as necessary, for or contractor, for changing access CATEGORIES OF INDIVIDUALS COVERED BY THE tracking stolen or lost identification permissions on cards, and for tracking SYSTEM: cards. stolen or lost cards. The identity NSF employees and NSF contractors 2. The Department of Justice, to the credential/ID card permits entry into employed for more than 6 months who extent disclosure is compatible with the NSF facilities. require routine physical access to NSF purpose for which the record was 44 U.S.C. 3101 and 42 U.S.C. 1870; controlled space at Stafford Place I and collected, and is relevant and necessary Homeland Security Presidential II must have a photo ID credential. to litigation or anticipated litigation, in Directive 12 (HSPD–12) dated August Child Development Center staff and which one of the following is a party or 2004, mandates a common identity non-NSF parents of children in the has an interest: (a) NSF or any of its standard for Federal employees and Center are also in the database. components; (b) an NSF employee in contractors on duty for more than 6 CATEGORIES OF RECORDS IN THE SYSTEM: his/her official capacity; (c) an NSF months. employee in his/her individual capacity Name, digital photograph, Social when the Department of Justice is DATES: Submit comments on or before Security Number, date of birth, LAN ID, representing or considering representing December 1, 2006. card number, fingerprints, affiliation the employee; or (d) the United States, (i.e., employee, contractor or associate), ADDRESSES: Address all comments when NSF determines that litigation is citizenship, expiration date, PIN concerning this notice to Leslie Jensen, likely to affect the Agency. National Science Foundation, Office of number, card issue date, FASC–N, credential status, building name, 3. Contractors, experts, advisors, the General Counsel, Room 1265, 4201 grantees, volunteers or other individuals Wilson Boulevard, Arlington, Virginia sponsor name, sponsor email, room number, COTR name, background who perform a service to or work on or 22230 or by sending electronic mail (e- under a contract or other arrangement mail) to [email protected]. investigation type, initiation date, adjudication date, fingerprint with or for the Federal government, as SUPPLEMENTARY INFORMATION: This adjudication date, contract end date. necessary to carry out their duties. publication is in accordance with the Recipients shall be required to comply Privacy Act requirement that agencies AUTHORITY FOR MAINTENANCE OF THE SYSTEM: with the requirements of the Privacy Act publish their amended systems of 44 U.S.C. 3101 and 42 U.S.C. 1870. of 1974, as amended 5 U.S.C. Sec. 552a. records in the Federal Register when Other authorities include: Homeland 4. Appropriate Federal, State, or local there is a revision, change, or addition. Security Presidential Directive 12 agencies responsible for investigating, NSF’s Office of the General Counsel (HSPD–12) dated August 2004, which prosecuting, enforcing, or implementing (OGC) has reviewed its Systems of mandates a common identity standard a statute, rule, regulation, or order, to Records notice and has determined that for Federal employees and contractors disclose pertinent information when the its records system, NSF–66 must be onboard for more than six months. NSF becomes aware of an indication of revised to incorporate the changes Federal Information Processing a violation or potential violation of civil described herein. Standard (FIPS) 201–1 dated March or criminal law or regulation. Submit comments as an ASCII file 2006, describing implementation 5. To the National Archives and avoiding the use of special characters requirements for HSPD–12 Presidential Records Administration or to the and any form of encryption. Identify all Order dated June 28, 1995, subject: General Services Administration who comments sent in electronic E-mail with ‘‘Upgrading Security at Federal are conducting records management Subject Line: Comments to proposed Facilities’’ which directs that all federal inspections under the authority of 44 changes. agencies shall meet the minimum U.S.C. 2904 and 2906.
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6. To notify another Federal agency SYSTEM EXEMPTIONS FROM CERTAIN PROVISIONS Budget, 725 17th Street, NW., when, or verify whether, a PIV card is OF THE ACT: Washington, DC 20503, Tel. No. 202– no longer valid. None. 395–4953. 7. To a Member of Congress or to a Lawrence Rudolph, Availability: Copies of OMB Circular Congressional staff member in response General Counsel. A–76, as revised by this notice, may be to an inquiry of the Congressional office [FR Doc. E6–18213 Filed 10–31–06; 8:45 am] obtained at http://www.whitehouse.gov/ made at the written request of the BILLING CODE 7555–01–P omb/circulars/index.html#numerical. constituent about whom the record is Paper copies of the Circular may be maintained. obtained by calling OFPP (tel: (202) 395–7579). POLICIES AND PRACTICES FOR STORING, OFFICE OF MANAGEMENT AND RETRIEVING, ACCESSING, RETAINING, AND BUDGET Rob Portman, DISPOSING OF RECORDS IN THE SYSTEM: Director. Performance of Commercial Activities STORAGE: Attachment Stored electronically. AGENCY: Office of Management and Budget (OMB), Executive Office of the Memorandum for the Heads of Executive RETRIEVABILITY: President. Departments and Agencies Records may be retrieved by name, ACTION: Update to civilian position full FROM: Rob Portman, Director last name, user ID, e-mail address, fringe benefit cost factor, Federal pay SUBJECT: Update to Civilian Position Full Fringe Benefit Cost Factor, Federal Pay Social Security Number, card number raise assumptions, inflation factors, and tax rates used in OMB Circular No. A– Raise Assumptions, Inflation Factors, and card access point. and Tax Rates used in OMB Circular No. 76, ‘‘Performance of Commercial A–76, ‘‘Performance of Commercial SAFEGUARDS: Activities.’’ Activities.’’ Information access is controlled by SUMMARY: OMB is updating the civilian Office of Management and Budget (OMB) password and restricted to a limited position full fringe benefit cost factor Circular A–76 requires agencies to use number of authorized users who require used to compute the estimated cost of standard cost factors to estimate certain costs access because of their NSF position of government performance. These cost government performance in public- duties. Input devices and servers are factors ensure that specific government costs private competitions conducted stored in locked rooms. are calculated in a standard and consistent pursuant to Office of Management and manner to reasonably reflect the cost of RETENTION AND DISPOSAL: Budget (OMB) Circular A–76. The performing commercial activities with civilian position full fringe benefit cost government personnel. This memorandum Information is retained on all current factor is comprised of four separate updates the civilian position full fringe employees and contractors throughout elements: (1) Insurance and health benefit cost factor, the annual Federal pay their employment/contract service. benefits, (2) standard civilian retirement raise assumptions, inflation cost factors, and Separating employees and contractors benefits, (3) Medicare benefits, and (4) tax rate information. The update to the return their identification cards when civilian position full fringe benefit cost factor miscellaneous fringe benefits. OMB is they are no longer employed by the is based on actuarial analyses provided by updating the insurance and health agency. Their records will be deleted or the Office of Personnel Management (OPM). benefits and standard civilian destroyed after three months. Records The revised pay raise assumptions and retirement benefits cost elements based on building access are retained for 90 inflation cost factors are based on the on actuarial analyses provided by the President’s Budget for Fiscal Year 2007. The days. Office of Personnel Management. tax rates are based on information provided SYSTEM MANAGER(S) AND ADDRESS: OMB is also updating the annual by the Internal Revenue Service. Federal pay raise assumptions and Division Director, Division of Civilian Position Full Fringe Benefit Cost inflation cost factors used for computing Administrative Services, 4201 Wilson Factor the government’s personnel and non- Boulevard, Arlington, VA 22230. The Circular requires agencies to add the pay costs in Circular A–76 public- civilian position full fringe benefit cost factor NOTIFICATION PROCEDURE: private competitions. These annual pay to the basic pay for each full-time and part- The Privacy Act Officer should be raise assumptions and inflation factors time permanent civilian position in the are based on the President’s Budget for agency cost estimate. This factor is contacted in accordance with comprised of four separate elements: (1) procedures found at 45 CFR part 613.2. Fiscal Year 2007. The tax rate tables used in connection with Circular A–76 Insurance and health benefits, (2) standard civilian retirement benefits, (3) Medicare RECORD ACCESS PROCEDURES: competitions have also been revised. 2 benefits, and (4) miscellaneous fringe See ‘‘Notification’’ above. DATES: Effective date: These changes are benefits. OMB has determined, based on effective immediately and shall apply to information provided by OPM, that the CONTESTING RECORD PROCEDURES: all public-private competitions civilian position full fringe benefit cost factor The Privacy Act Officer should be performed in accordance with OMB needs to be adjusted upward, from 32.85 contacted in accordance with Circular A–76, as revised in May 2003, percent to 36.45 percent. This adjustment is procedures found at 45 CFR 613.4. where the performance decision has not necessary to account for increases in been certified by the government before insurance and health benefits and civilian RECORD SOURCE CATEGORIES: this date. retirement benefits. The Medicare benefits and miscellaneous fringe benefits elements Information in the System is obtained FOR FURTHER INFORMATION CONTACT: remain unchanged at this time. The revised from a variety of sources to include the Mathew Blum, Office of Federal cost elements of the civilian position full employee, contractor, Administrative Procurement Policy (OFPP), NEOB, fringe benefit cost factor are summarized in Officer or COTR. Room 9013, Office of Management and the table below.
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TABLE.—ELEMENTS OF THE CIVILIAN POSITION FULL FRINGE BENEFIT COST FACTOR
Updated cost Element Previous cost factor factor (percent)
Insurance and Health Benefit a ...... 5.7 6.7 Standard Civilian Retirement Benefit b ...... 24 .0 26 .6 Medicare Benefit ...... 1.45 1 .45 Miscellaneous Fringe Benefit ...... 1.7 1.7
Total Civilian Position Full Fringe Benefits ...... 32.85 36 .45 a This factor is based on actuarial estimates for the costs of the government paid portion of health insurance under the Federal Employees Health Benefits (FEHB) Program and the Federal Employees Government Life Insurance (FEGLI) Program. This figure is multiplied by the aver- age participation rates in these programs and divided by the average civilian employee’s salary (as identified in the President’s Budget) to derive a factor as a percentage of basic pay. This factor is based only on costs borne by the government (not enrollee premiums) and only on behalf of active Federal employees (not retirees). Increases in government costs for retirees are reflected in the standard civilian retirement benefit cost factor. b The standard civilian retirement benefit cost factor includes the government’s accruing cost for pension benefits (Social Security, Thrift Sav- ings Plan, Federal Employees or Civil Service Retirement Systems) and the accruing cost for post-retirement health benefits.
The master tables for COMPARE (the (1) Full-time and Part-time Permanent contributions. The standard civilian costing software that incorporates the costing Civilian Positions. Full-time and part-time retirement benefit cost factor for civilian procedures of the circular) have been permanent civilian positions receive the positions is 26.6 percent of the position’s updated to reflect these changes. The updates civilian position full fringe benefit cost factor basic pay (20.4 percent retirement pension are available at http:// of 36.45 percent of the position’s basic pay. plus 6.2 percent for retiree health). The www.compareA76.com. Agencies shall use The 36.45 percent civilian position full fringe retirement cost factors for special class the updated COMPARE master tables to benefit cost factor is the sum of the standard civilian positions are: 37.6 percent of basic calculate and document public and private civilian position retirement benefit cost pay for air traffic controllers (31.4 percent sector costs in competitions where a factor (26.6 percent), insurance and health retirement pension plus 6.2 percent for performance decision has not been certified benefit cost factor (6.7 percent), Medicare retiree health) and 39.8 percent of basic pay by the government by the effective date benefit cost factor (1.45 percent), and for law enforcement and fire protection (33.6 identified in the Federal Register notice miscellaneous fringe benefit cost factor (1.7 percent retirement pension plus 6.2 percent accompanying the publication of this percent). for retiree health). memorandum. (a) Retirement Benefit Cost Factors. The (b) Insurance and Health Benefit Cost OMB intends to conduct periodic reviews standard civilian retirement benefit cost Factor. The insurance and health benefit cost of the civilian position full fringe benefit cost factor represents the cost of the weighted factor for civilian positions, based on actual factor. OMB is exploring options with OPM Civil Service Retirement System/Federal cost, is 6.7 percent of the position’s basic pay for updating this factor on a more regularized Employees Retirement System to the (0.2 percent for life insurance benefits and schedule. government, based upon the full dynamic 6.5 percent for health benefits). The Accordingly, the following changes are normal cost of the retirement systems, the following standard cost factors and footnote made to OMB Circular A–76. normal cost of accruing retiree health no. 1 in Figure C.1 of Attachment C, ‘‘Table 1. Subparagraphs B.2.f.(1)(a) and (b) of benefits based on average participation rates, of Standard A–76 Costing Factors,’’ are Attachment C are revised to read as follows: social security, and Thrift Savings Plan revised as set forth below:
TABLE OF STANDARD A–76 COSTING FACTORS
Factor 1 Title Originating source Category of cost (percent)
Civilian Position Full Fringe Benefit Cost Factor ...... OMB Transmittal Memoranda ...... Pay ...... 36 .45 Insurance and Health Benefit Cost Factor ...... OMB Transmittal Memoranda ...... Pay ...... 6 .7 Special Class Retirement Cost Factor (Law Enforcement & Fire Protec- OMB Transmittal Memoranda ...... Pay ...... 39 .8 tion). Special Class Retirement Cost Factor (Air Traffic Control) ...... OMB Transmittal Memoranda ...... Pay ...... 37 .6 Standard Civilian Retirement Benefit Cost Factor ...... OMB Transmittal Memoranda ...... Pay ...... 26.6 1 The factors listed in this column are factors in effect on December 2005. Agencies should refer to the COMPARE Web site at http:// www.compareA76.com. for the updated COMPARE master tables and other updated information.
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Federal Pay Raise Assumptions SECURITIES AND EXCHANGE Dated: October 23, 2006. The following Federal pay raise COMMISSION Nancy M. Morris, assumptions (including geographic pay Secretary. differentials) that are in effect for 2006 shall Submission for OMB Review; [FR Doc. E6–18350 Filed 10–31–06; 8:45 am] be used for the development of government Comment Request BILLING CODE 8011–01–P personnel costs. The pay raise factors provided for 2007 and Upon Written Request, Copies Available From: Securities and Exchange beyond shall be applied to all government SECURITIES AND EXCHANGE personnel with no assumption being made as Commission, Office of Filings and COMMISSION to how they will be distributed between Information Services, Washington, DC 20549. possible locality and base pay increases. Submission for OMB Review; Extension: Rule 15c3–1; SEC File No. 270– Comment Request FEDERAL PAY RAISE ASSUMPTIONS* 197; OMB Control No. 3235–0200. Notice is hereby given that pursuant Upon Written Request, Copies Available Civilian Military From: Securities and Exchange Efective date (percent) (percent) to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.), the Securities Commission, Office of Filings and January 2006 .... 3.1 3.1 and Exchange Commission Information Services, Washington, DC January 2007 .... 2.2 2.7 (‘‘Commission’’) has submitted to the 20549. Office of Management and Budget Extension: Rule 17i–8; SEC File No. 270–533; * Federal pay raise assumptions have not been established for pay raises subsequent to (‘‘OMB’’) a request for extension of the OMB Control No. 3235–0591. January 2007. For January 2008 and beyond, previously approved collection of Notice is hereby given that pursuant the projected percentage change in the Em- information discussed below. to the Paperwork Reduction Act of ployment Cost Index (ECI), 4.2 percent, Rule 15c3–1 (17 C.F.R. 240.15c3–1) 1995 1 the Securities and Exchange should be used to estimate government per- under the Securities Exchange Act of sonnel costs for public-private competitions. In Commission (‘‘Commission’’) has 1934 requires brokers and dealers to future updates to cost factors in the Circular, submitted to the Office of Management have at all times sufficient liquid assets as pay policy for years subsequent to 2007 is and Budget a request for extension of established, these pay raise assumptions will to meet their current liabilities, the previously approved collection of be revised. particularly the claims of customers. information discussed below. The Code The rule facilitates monitoring the Inflation Factors of Federal Regulation citation to this financial condition of brokers and The following non-pay inflation cost collection of information is the factors are provided for purposes of public- dealers by the Commission and the various self-regulatory organizations. It following rule: 17 CFR 240.17i–8. private competitions conducted pursuant to Section 231 of the Gramm-Leach- Circular A–76 only. They reflect the generic is estimated that approximately 6,100 2 broker-dealer respondents registered Bliley Act of 1999. (the ‘‘GLBA’’) non-pay inflation assumptions used to amended Section 17 of the Securities develop the fiscal year 2007 budget baseline with the Commission incur an aggregate estimates required by law. The law requires burden of 88,181 hours per year to Exchange Act of 1934 to create a that a specific inflation factor (GDP FY/FY comply with this rule. Finally, the regulatory framework under which a chained price index) be used for this estimated cost for the annual hour holding company of a broker-dealer purpose. These inflation factors should not burden for Rule 15c3–1 is (‘‘investment bank holding company’’ or be viewed as estimates of expected inflation approximately $22.7 million. ‘‘IBHC’’) may voluntarily be supervised rates for major long-term procurement items Rule 15c3–1 does not contain record by the Commission as a supervised or as an estimate of inflation for any retention requirements. Compliance investment bank holding company (or particular agency’s non-pay purchases mix. with the rule is mandatory. The ‘‘SIBHC’’).3 In 2004, the Commission required records are available only to promulgated rules, including Rule 17i– NON-PAY CATEGORIES the examination staff of the Commission 8, to create a framework for the [Supplies, equipment, etc.] and the self-regulatory organization of Commission to supervise SIBHCs.4 This which the broker-dealer is a member. framework includes qualification (percent) An agency may not conduct or sponsor, criteria for SIBHCs, as well as and a person is not required to respond recordkeeping and reporting FY 2007 ...... 2.2 to, a collection of information unless it requirements. Among other things, this FY 2008 ...... 2.2 regulatory framework for SIBHCs is FY 2009 ...... 2.1 displays a currently valid control FY 2010 ...... 2.1 number. intended to provide a basis for non-U.S. FY 2011 ...... * 2.1 Comments should be directed to (i) financial regulators to treat the Desk Officer for the Securities and Commission as the principal U.S. * Any subsequent years included in the pe- Exchange Commission, Office of consolidated, home-country supervisor riod of performance shall use a 2.2% figure, for SIBHCs and their affiliated broker- until otherwise revised by OMB. Information and Regulatory Affairs, Office of Management and Budget, dealers.5 Tax Rate Tables Room 10102, New Executive Office Pursuant to Section 17(i)(3)(A) of the The Circular requires that agencies subtract Building, Washington, DC, 20503 or by Exchange Act, an SIBHC must make and the Federal income tax generated for the sending an e-mail to: keep records, furnish copies thereof, government from the total cost of private [email protected]; and (ii) R. and make such reports as the sector performance. The tax rate tables used Corey Booth, Director/Chief Information in connection with public-private Officer, Securities and Exchange 1 44 U.S.C. 3501 et seq. competitions have been revised. COMPARE Commission, c/o Shirley Martinson, 2 Pub. L. 106–102, 113 Stat. 1338 (1999). will apply the updated tax rate information 6432 General Green Way, Alexandria, 3 See 15 U.S.C. 78q(i). to establish the adjusted cost of private sector 4 Virginia 22312 or send an e-mail to: See Exchange Act Release No. 49831 (Jun. 8, performance. _ 2004), 69 FR 34472 (Jun. 21, 2004). PRA [email protected]. Comments must 5 [FR Doc. E6–18415 Filed 10–31–06; 8:45 am] See H.R. Conf. Rep. No. 106–434, 165 (1999). be submitted to OMB within 30 days of See also Exchange Act Release No. 49831, at 6 (Jun. BILLING CODE 6325–39–P this notice. 8, 2004), 69 FR 34472, at 34473 (Jun. 21, 2004).
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Commission may require by rule.6 Rule unless it displays a currently valid guarantor, and whether the guarantor 17i–8 requires that an SIBHC to notify control number. failed to meet the transfer agent’s the Commission upon the occurrence of Comments should be directed to: (i) guarantee standard. These certain events that would indicate a The Desk Officer for the Securities and recordkeeping requirements assist the decline in the financial and operational Exchange Commission, Office of Commission and other regulatory well-being of the firm. Information and Regulatory Affairs, agencies with monitoring transfer agents The collections of information Office of Management and Budget, and ensuring compliance with the rule. included in Rule 17i–8 are necessary to Room 10102, New Executive Office There are approximately 760 allow the Commission to effectively Building, Washington, DC 20503 or by registered transfer agents. The staff determine whether supervision of an sending an e-mail to: estimates that every transfer agent will IBHC as an SIBHC is necessary or [email protected]; and (ii) R. spend about 40 hours annually to appropriate in furtherance of the Corey Booth, Director/Chief Information comply with Rule 17Ad–15. The total purposes of section 17 of the Act and Officer, Securities and Exchange annual burden for all transfer agents is allow the Commission to supervise the Commission, c/o Shirley Martinson, 30,400 hours. The average cost per hour activities of these SIBHCs. Rule 17i–8 6432 General Green Way, Alexandria, is approximately $50. Therefore, the also enhances the Commission’s Virginia 22312 or send an e-mail to: total cost of compliance for all transfer supervision of the SIBHCs’ subsidiary [email protected]. Comments must agents is $1,520,000. broker-dealers through collection of be submitted to OMB within 30 days of The retention period for the additional information and inspections this notice. recordkeeping requirement under Rule of affiliates of those broker-dealers. Dated: October 23, 2006. 17Ad–15 is three years following the date of a rejection of transfer. The Without these notices, the Commission Nancy M. Morris, recordkeeping requirement under the would be unable to adequately Secretary. supervise an SIBHC, nor would it be rule is mandatory to assist the [FR Doc. E6–18355 Filed 10–31–06; 8:45 am] able to determine whether continued Commission and other regulatory supervision of an IBHC as an SIBHC BILLING CODE 8011–01–P agencies with monitoring transfer agents were necessary and appropriate in and ensuring compliance with the rule. furtherance of the purposes of section This rule does not involve the collection SECURITIES AND EXCHANGE of confidential information. An agency 17 of the Act. COMMISSION We estimate that three IBHCs will file may not conduct or sponsor, and a Notices of Intention with the Submission for OMB Review; person is not required to respond to, a Commission to be supervised by the Comment Request collection of information unless it Commission as SIBHCs. An SIBHC will displays a currently valid control require about one hour to create a notice Upon Written Request, Copies Available number. required to be submitted to the From: Securities and Exchange Comments should be directed to: (i) Commission pursuant to Rule 17i–8. Commission Office of Filings and Desk Officer for the Securities and However, as these notices only need be Information Services, Washington, DC Exchange Commission, Office of filed in certain situations indicative of 20549. Information and Regulatory Affairs, financial or operational difficulty, only Extension: Rule 17Ad–15; SEC File No. Office of Management and Budget, one SIBHC may be required to file 270–360; OMB Control No. 3235–0409. Room 10102, New Executive Office Building, Washington, DC 20503 or by notice pursuant to the Rule every other Notice is hereby given that pursuant year. Thus, we estimate that the annual sending an e-mail to: to the Paperwork Reduction Act of 1995 [email protected]; and (ii) R. burden of Rule 17i–8 for all SIBHCs (44 U.S.C. 3501 et seq.), the Securities would be about 30 minutes. Corey Booth, Director/Chief Information and Exchange Commission Officer, Securities and Exchange The reports and notices required to be (‘‘Commission’’) has submitted to the Commission, c/o Shirley Martinson, filed pursuant to Rule 17i–8 must be Office of Management and Budget a 6432 General Green Way, Alexandria, preserved for a period of not less than request for extension of the previously Virginia 22312 or by sending an e-mail three years.7 The collection of approved collection of information to: [email protected]. Comments information is mandatory and the discussed below. must be submitted to OMB within 30 information required to be provided to Rule 17Ad–15—Signature Guarantees days of this notice. the Commission pursuant to this Rule is deemed confidential pursuant to section Rule 17Ad–15 (17 CFR 240.17Ad–15) Dated: October 23, 2006. 17(j) of the Securities Exchange Act of under the Securities Exchange Act of Nancy M. Morris, 1934 8 and Section 552(b)(3)(B) of the 1934 (15 U.S.C. 78a et seq.) (the ‘‘Act’’) Secretary. Freedom of Information Act,9 requires approximately 760 transfer [FR Doc. E6–18361 Filed 10–31–06; 8:45 am] notwithstanding any other provision of agents to establish written standards for BILLING CODE 8011–01–P law. In addition, paragraph 17i–8(c) accepting and rejecting guarantees of specifies that the notices and reports securities transfers from eligible filed in accordance with Rule 17i–8 will guarantor institutions. Transfer agents SECURITIES AND EXCHANGE be accorded confidential treatment to are also required to establish procedures COMMISSION to ensure that those standards are used the extent permitted by law. [Release No. IC–27540; File No. 812–13300] An agency may not conduct or by the transfer agent to determine sponsor, and a person is not required to whether to accept or reject guarantees AIG SunAmerica Life Assurance respond to, a collection of information from eligible guarantor institutions. Company and Variable Annuity Transfer agents must maintain, for a Account Seven, Notice of Application 6 15 U.S.C. 78q(i)(3)(A). period of three years following the date 7 17 CFR 240.17i–5(b)(4). of a rejection of transfer, a record of all October 26, 2006. 8 15 U.S.C. 78q(j). transfers rejected, along with the reason AGENCY: Securities and Exchange 9 5 U.S.C. 552(b)(3)(B). for the rejection, identification of the Commission (‘‘SEC’’).
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ACTION: Notice of an application for an Applicants’ Representations Programs do not count against the order (the ‘‘Order’’) of approval 1. AIG SunAmerica is a stock life fifteen (15) free transfers per contract pursuant to section 26(c) of the insurance company originally organized year. All transfers in excess of fifteen Investment Company Act of 1940, as under the laws of the State of California (15) transfer requests per contact year amended (the ‘‘1940 Act’’). in April 1965. AIG SunAmerica, must be submitted by mail until the redomesticated under the laws of the next contract anniversary and may be Applicants: AIG SunAmerica Life State of Arizona on January 1, 1996. AIG subject to further restrictions. 4. SAST was organized as a Assurance Company (‘‘AIG SunAmerica is a wholly-owned Massachusetts business trust on SunAmerica’’), and Variable Annuity subsidiary of SunAmerica Life September 11, 1992. SAST was Account Seven (collectively, the Insurance Company, an Arizona established and serves to provide a ‘‘Applicants’’). corporation, which is, in turn, wholly- funding medium for the Sub-Accounts Summary of the Application: The owned by AIG Retirement Services, a which constitute its sole shareholders. Applicants request an order permitting Delaware corporation, which is, in turn, SAST is registered as an open-end the substitution of the Equity Income wholly-owned by American Fund (the ‘‘Replaced Portfolio’’) with management investment company International Group, Inc. AIG under the 1940 Act (File No. 811– the Davis Venture Value Portfolio (the SunAmerica is authorized to write ‘‘Replacement Portfolio’’) both of which 07238), and its offering of its shares is annuities and life insurance in the registered under the Securities Act of are Portfolios of the SunAmerica Series District of Columbia and all states Trust (‘‘SAST’’) (the ‘‘Substitution’’). 1933 (File No. 033–52742). except New York. 5. The Replaced Portfolio, which Filing Date: The application was filed 2. Separate Account Seven (the offers a single class of shares, on June 2, 2006, and an amended and ‘‘Separate Account’’) was established by constitutes a separate series available restated application was filed on AIG SunAmerica on August 28, 1998, in through SAST. The inception date of the October 19, 2006. Applicants have accordance with the laws of the State of Replaced Portfolio was December 14, agreed to file an amendment during the Arizona. The Separate Account is 1998, and it has been offered in the notice period, the substance of which is registered as a unit investment trust Separate Account since the inception reflected in this notice. under the 1940 Act. The Separate date of the Contract on March 19, 1999. Hearing or Notification of Hearing: An Account is used to fund the Contract 6. The Separate Account buys and order granting the application will be and other annuity contracts issued by sells shares of the Replaced Portfolio at issued unless the SEC orders a hearing. AIG SunAmerica and is currently net asset value that is net of the advisory Interested persons may request a divided into a total of 42 subaccounts fee of 0.650% based on average daily net hearing on the application by writing to (the ‘‘Sub-Accounts’’). Each of the assets, paid to the investment adviser, the Secretary of the SEC and serving available Sub-Accounts invests in AIG SunAmerica Asset Management Applicants with a copy of the request, shares of the available portfolios of the (‘‘AIG SAAMCo’’), to manage the personally or by mail. Hearing requests SAST. One of the Sub-Accounts business affairs of the Replaced must be received by the SEC by 5:30 currently invests in the Replaced Portfolio and to provide administrative p.m. on November 16, 2006, and should Portfolio. services pursuant to a written be accompanied by proof of service on 3. The Polaris Plus Contract (the investment advisory agreement (the Applicants in the form of an affidavit or, ‘‘Contract’’), issued by AIG SunAmerica ‘‘Advisory Agreement’’). The Replaced for lawyers, a certificate of service. through the Separate Account, is a Portfolio’s other expenses were 1.25% Hearing requests should state the nature flexible premium group and individual for the fiscal year ended January 31, of the writer’s interest, the reason for the deferred annuity contract that currently 2006. The Replaced Portfolio’s total request, and the issues contested. utilizes the Replaced Portfolio as one of annual operating expenses for this Persons may request notification of a many underlying investments. AIG period were 1.90%, subject to voluntary hearing by writing to the Secretary of SunAmerica discontinued offering the fee waivers and expense reimbursement the SEC. Contract as of the close of business on by AIG SAAMCo that provided for total February 28, 2002. Existing annual net operating expenses of 1.35%. ADDRESSES: Secretary, Securities and Contractowners (‘‘Owners’’) may FAF Advisors, Inc., formerly U.S. Exchange Commission, 100 F Street, continue to allocate purchase payments Bancorp Asset Management, Inc. NE., Washington, DC 20549–1090. to and transfer among the available Sub- (‘‘FAF’’) serves as subadviser to the Applicants: c/o Jorden Burt LLP, 1025 Accounts, including the Sub-Account Replaced Portfolio. AIG SAAMCo is Thomas Jefferson Street, NW., East that currently invests in the Replaced affiliated with AIG SunAmerica, but Lobby, Suite 400, Washington, DC Portfolio (the ‘‘Equity Income Sub- FAF is not affiliated with AIG 20007–5208, Attention: Joan E. Boros, Account’’). The allocation/transfer SunAmerica. Esq. rights will continue until one week 7. The Replaced Portfolio is a FOR FURTHER INFORMATION CONTACT: prior to the date of the proposed portfolio in which the Separate Account Jeffrey Foor, Esq., Senior Counsel, or Substitution requested by the invests under the Contract as one of the Zandra Y. Bailes, Esq., Branch Chief, application. The Contract is the only 42 Sub-Account investment alternatives Office of Insurance Products, Division of contract investing in the Equity Income currently available. If the requested Investment Management, at (202) 551– Sub-Account, and no other sub-account Order is granted, the Substitution will 6795. of any other separate account invests in result in the reduction of the available the Replaced Portfolio. During the investment alternatives by one. Shares SUPPLEMENTARY INFORMATION: The accumulation period, there are no limits of the Replacement Portfolio will be following is a summary of the on the number of transfers Owners can offered at net asset value that is net of application. The complete application is make among the available Sub-Accounts the current Replacement Portfolio’s available for a fee from the Public under the Contract and/or the Contract advisory fee of 0.71% which is paid to Reference Branch of the SEC, 100 F fixed accounts. Transfers resulting from AIG SAAMCo to manage the business Street, NE., Room 1580, Washington, DC participation in the Dollar Cost affairs of the Replacement Portfolio and 20549 (202–551–8090). Averaging or Asset Rebalancing to provide administrative services
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pursuant to the Advisory Agreement. has a significantly larger asset base than Substitution than before the proposed The Replacement Portfolio’s other the Replaced Portfolio. The Substitution. The proposed Substitution expenses are 0.05%, and the Replacement Portfolio’s total assets at will not be treated as a transfer for the Replacement Portfolio’s total annual January 31, 2006, were approximately purpose of transfer limits or assessing operating expenses are 0.76% for Class $2.4 billion, while the Replaced transfer charges. 1 shares. The Replacement Portfolio Portfolio’s assets at January 31, 2006 11. AIG SunAmerica will schedule does not pay Rule 12b–1 fees for were approximately $5.8 million. The the Substitution to occur after issuance distribution activities. Davis Selected larger asset base of the Replacement of the requested Order and any required Advisers, L.P. d/b/a Davis Advisers Portfolio provides the potential for a state insurance department approvals. (‘‘Davis’’) serves as the sub-adviser to future reduction in the total annual Further, although the Substitution will the Replacement Portfolio. Davis is not expenses of all its share classes, in result in the replacement of the affiliated with AIG SunAmerica. addition to providing potential Replaced Portfolio as the investment of 8. The application covers a single enhanced performance. Moreover, the the Equity Income Sub-Account under portfolio in which the Separate Account larger asset base of the Replacement the Contract, AIG SunAmerica will not invests under the Contract. Applicants Portfolio provides greater protection exercise any right it may have under the propose the Substitution due to the against adverse effects on expenses and Contract to collect transfer fees or Replaced Portfolio’s declining assets performance occasioned by large impose any additional restrictions on and relatively high total expenses. redemptions; and (6) the Replacement Owners who may wish to make transfers from the Equity Income Sub-Account Applicants note that since the Replaced Portfolio has a performance record among the other available Sub-Accounts Portfolio’s inception on December 14, significantly superior to that of the for a period of at least thirty (30) days 1998, the Replaced Portfolio has Replaced Portfolio, and the potential for following mailing of the Notice, as accumulated only $5.8 million in assets enhanced future performance. 9. The Applicants note that the defined below, of the proposed as of January 31, 2006. Applicants note Replaced Portfolio will process Substitution (the ‘‘Free Transfer further that the Equity Income Sub- redemption requests and the Period’’). During the Free Transfer Account is the only sub-account that Replacement Portfolio will process Period, Owners may transfer all assets, invests in the Replaced Portfolio, that purchase orders at prices based on the as substituted, from the Equity Income the Equity Income Sub-Account is current net asset values next computed Sub-Account to other available Sub- offered as an investment option in only after receipt of the requests and orders Accounts without charge or limitation one variable contract (the Contract), and in a manner consistent with Rule 22c– and without those transfers being that the Contract is no longer offered to 1 under the 1940 Act. The Applicants counted against any limit on free new contract owners. Applicants also will effect the proposed Substitution by transfers under the Contract, or any note that the Replaced Portfolio’s total redeeming shares of the Replaced requirements for the method of net annual expenses of 1.35% exceed Portfolio in cash at net asset value and submitting transfer requests. the median for its peer group by 0.43%. then immediately contributing those 12. Upon filing the application, AIG The Replaced Portfolio’s sub-adviser assets to the Replacement Portfolio to SunAmerica supplemented the announced its intention to terminate the purchase their Class 1 shares. At all prospectus for the Contract to reflect the voluntary expense reimbursement times, before and after the Substitution, proposed Substitution. Within five days agreement within the current fiscal monies attributable to Owners that have after the Substitution, AIG SunAmerica period. As a result, the Replaced allocated assets to the Equity Income will send to its Owners written notice Portfolio’s total net annual expenses can Sub-Account will remain fully invested, of the Substitution (‘‘Notice’’) be expected to increase significantly, and no change will result in the amount identifying the shares of the Replaced further limiting the Replaced Portfolio’s of any Owner’s Contract value, death Portfolio that have been eliminated and ability to achieve competitive benefit or investment in the Equity the shares of the Replacement Portfolio performance. AIG SunAmerica Income Sub-Account so that the full net that have been substituted. AIG undertook to review the various asset value of the redeemed shares will SunAmerica will include in the mailing alternative investment portfolios to be reflected in the Owners’ the applicable prospectus supplement determine which would be a suitable accumulation values or annuity unit for the Contract describing the replacement for the Replaced Portfolio. values following the Substitution. In Substitution. AIG SunAmerica will also AIG SunAmerica determined that the addition, AIG SunAmerica undertakes mail a copy of the prospectus for the Replacement Portfolio is an appropriate to assume all transaction costs and Replacement Portfolio to Owners who and suitable replacement for the expenses relating to the Substitution so have not already received a copy of that Replaced Portfolio based on the that the full net asset value of redeemed prospectus in the ordinary course. The following conclusions: (1) The shares of the Replaced Portfolio held by Notice will further advise Owners that Replacement Portfolio has investment the Equity Income Sub-Account will be during the Free Transfer Period, Owners objectives, policies, and restrictions reflected in the Owners’ accumulation may transfer all assets, as substituted, substantially similar to those of the values or annuity unit values following from the Equity Income Sub-Account to Replaced Portfolio; (2) the Replaced the Substitution. the other available Sub-Accounts Portfolio and the Replacement Portfolio 10. Owners will not incur any fees or without limit or charge and without take on comparable levels of risk; (3) the charges as a result of the Substitution, those transfers being counted against Replacement Portfolio has significantly nor will the rights of Owners or any limit on free transfers under their lower total annual expense ratios than obligations of AIG SunAmerica under Contracts, or any requirements for the the Replaced Portfolio prior to and after the Contract be altered in any way. The method of submitting transfer requests. voluntary fee waivers and proposed Substitution will not have any reimbursements for the Replaced adverse tax consequences to Owners. Applicant’s Legal Analysis Portfolio; (4) the Replacement Portfolio The proposed Substitution will not 1. Section 26(c) of the 1940 Act has a significantly greater number of cause Contract fees and charges provides that ‘‘[i]t shall be unlawful for outstanding shares than the Replaced currently being paid by existing Owners any depositor or trustee of a registered Portfolio; (5) the Replacement Portfolio to be greater after the proposed unit investment trust holding the
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security of a single issuer to substitute Owners by virtue of the greater asset For the Commission, by the Division of another security for such security unless base or lower portfolio expenses; (viii) Investment Management, pursuant to the [SEC] shall have approved such at the time of the Substitution, the total delegated authority. substitution.’’ annual expenses of the Replacement Nancy M. Morris, 2. Applicants represent that the Portfolio’s shares are expected to be Secretary. proposed Substitution involves a lower than the Replaced Portfolio; (ix) [FR Doc. E6–18349 Filed 10–31–06; 8:45 am] substitution of securities within the the Substitution which will be effected BILLING CODE 8011–01–P meaning of section 26(c) of the 1940 in accordance with section 22 of the Act. The Applicants, therefore, request 1940 Act and Rule 22c–1 thereunder by an order from the SEC pursuant to SECURITIES AND EXCHANGE redeeming shares of the Replaced section 26(c) approving the proposed COMMISSION Substitution. Portfolio in cash to be conveyed immediately to the Replacement [Release No. 34–54654; File No. SR–NASD– 3. Applicants submit that the 2006–060] Substitution does not present the type of Portfolio to purchase its respective costly forced redemption or other harms shares; and (x) AIG SunAmerica Self-Regulatory Organizations; that section 26(c) was intended to guard represents that at no time after date of National Association of Securities against and is consistent with the the Substitution (the ‘‘Substitution Dealers, Inc.; Order Approving protection of investors and the purposes Date’’) will AIG SunAmerica increase Proposed Rule Change To Require fairly intended by the 1940 Act for the Contract charges or total Separate Members To File Regulatory Notices following reasons: (i) The Substitution Account charges (net of any waiver or With NASD Electronically will continue to fulfill Owners’ reimbursements) of the Sub-Account objectives and risk expectations, that currently invests in the October 26, 2006. because the Replacement Portfolio has Replacement Portfolio (the ‘‘Davis Sub- On May 16, 2006, the National substantially similar objectives, policies, Account’’). If the total operating Association of Securities Dealers, Inc. and restrictions to the objectives, expenses for the Replacement Portfolio (‘‘NASD’’) filed a proposed rule change policies, and restrictions of the (taking into account any expense waiver with the Securities and Exchange Replaced Portfolio and comparable risk or reimbursement) for any fiscal quarter Commission (‘‘Commission’’), pursuant characteristics; (ii) after mailing of the to section 19(b)(1) of the Securities following the Substitution Date, exceed Notice informing an Owner of the Exchange Act of 1934 (‘‘Act’’ or on an annualized basis the net expense Substitution, an Owner may request that ‘‘Exchange Act’’) 1 and Rule 19b–4 ratio for the Replaced Portfolio for the his or her assets in the Equity Income under the Act.2 The proposed rule Sub-Account be reallocated among the fiscal year ended January 31, 2006, AIG change adopts NASD Rule 3170 to other available Sub-Accounts at any SunAmerica will reduce (through provide the NASD with the authority to time during the Free Transfer Period reimbursement) the Separate Account require member firms to file or submit without any limit or charge and without expenses paid during that quarter of the electronically with the NASD any those transfers being counted against Davis Sub-Account to the extent regulatory notice or other document that any limit on free transfers under the necessary to offset the amount by which member firms are required to file with Contract, or any requirements for the the Replacement Portfolio’s net expense (or otherwise submit to) the NASD. The method of submitting transfer requests. ratio for such period exceeds, on an NASD may specify the electronic format This right also will be granted to annualized basis, 1.35%. to be used. The proposed rule change Owners, if any, who are receiving 4. AIG SunAmerica has determined does not specify the particular variable payments based on the that the Replacement Portfolio is an regulatory notices or documents that the Replaced Portfolio. The Free Transfer appropriate replacement for the NASD will require members to file Period provides sufficient time for Replaced Portfolio. The Replacement electronically. Instead, the NASD’s Owners to consider and effect their proposed rule change would give the reinvestment and withdrawal options; Portfolio has investment objectives, policies, and restrictions substantially NASD the authority to require members (iii) the Substitution will be at net asset to file or submit electronically with the similar to the Replaced Portfolio with value of the respective shares NASD any specified regulatory notice or comparable levels of risk. The determined on the date of the document. Substitution in accordance with section Replacement Portfolio has a The NASD plans to require members 22 of the 1940 Act and Rule 22c–1 significantly lower total expense ratio to file certain specified notices with the thereunder, without the imposition of than the Replacement Portfolio. Also, NASD via an electronic, Internet-based any transfer or similar charge; (iv) AIG the Replacement Portfolio has a receiving and processing system SunAmerica has undertaken to assume significantly larger asset base than the (‘‘System’’), using templates developed all expenses and transaction costs, Replacement Portfolio. In addition, the by the NASD for each notice. The including, but not limited to, legal and average annual total returns of the System will be available to members on accounting fees and any brokerage Replacement Portfolio are clearly the NASD’s Internet Web site. Initially, commissions, in connection with the superior to those of the Replacement the NASD plans to require members to Substitution; (v) the Substitution will in Portfolio, other than with respect to the file notices that must be filed with the no way alter the contractual obligations year to date performance. NASD under the following Exchange of AIG SunAmerica or the rights and Act Rules electronically: 3 privileges of Owners under the Contract; Conclusion (vi) the Substitution will in no way alter 1 For the reasons set forth in the 15 U.S.C. 78s(b)(1). the tax treatment of Owners in 2 17 CFR 240.19b–4. connection with their Contracts, and no application, the Applicants state that 3 The NASD has requested relief on behalf of its tax liability will arise for Owners as a the proposed Substitution and the members from the Commission with respect to result of the Substitution; (vii) the related transactions meet the standards these Exchange Act rules. See Letter from Patrice of section 26(c) of the 1940 Act and that Gliniecki, Senior Vice President and General Substitution is expected to confer Counsel, NASD, to Michael A. Macchiaroli, certain future economic benefits on the requested Order should be granted. Associate Director, Division of Market Regulation,
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• Rule 15c3–1(e)—Withdrawals of effect of the new technologies and Social Security Administration equity capital. consult with its members regarding • Rule 15c3–3(i)—Special Reserve requiring filings that use the new Agency Information Collection Bank Account. technologies. Activities: Proposed Request and • Rule 17a–4(f)(2)(i); Rule 17a– Comment Request 4(f)(3)(vii)—Electronic storage media. The Commission finds that the • Rule 17a–5(f)(4)—Replacement of NASD’s proposal to adopt NASD Rule The Social Security Administration accountant. 3170 is consistent with the requirements (SSA) publishes a list of information • Rule 17a–11(b)—Net capital of the Act and the rules and regulations collection packages that will require deficiency. under the Act applicable to a national clearance by the Office of Management • Rule 17a–11(c)(1)—Aggregate securities exchange.8 In particular, the and Budget (OMB) in compliance with indebtedness is in excess of 1200 Commission believes that the proposal Pub. L. 104–13, the Paperwork percent of net capital. is consistent with section 15A(b)(6) of Reduction Act of 1995, effective October • Rule 17a–11(c)(2)—Net capital is the Act,9 which requires, among other 1, 1995. The information collection less than 5 percent of aggregate debit things, that NASD rules must be packages that may be included in this items. notice are for new information • designed to prevent fraudulent and Rule 17a–11(c)(3)—Net capital is manipulative acts and practices, to collections, approval of existing information collections, revisions to less than 120 percent of required promote just and equitable principles of minimum dollar amount. OMB-approved information collections, trade, and, in general, to protect • Rule 17a–11(d)—Failure to make and extensions (no change) of OMB- and keep current books and records. investors and the public interest in that approved information collections. • Rule 17a–11(e)—Material the proposed rule change will establish SSA is soliciting comments on the inadequacy in accounting systems, a cost-saving and efficient method of accuracy of the agency’s burden internal controls, or practices and filing these notices that will enhance the estimate; the need for the information; procedures. speed and efficiency of processing the its practical utility; ways to enhance its The proposed rule change was notices and reduce administrative costs. quality, utility, and clarity; and on ways published for comment in the Federal The NASD will issue a Notice to to minimize burden on respondents, Register on August 22, 2006.4 A Members and other member including the use of automated correction was published on September communications, as appropriate, to collection techniques or other forms of 5 22, 2006. This order approves the advise its members which regulatory information technology. Written proposed rule change. notices or documents members will be comments and recommendations The Commission received two required to file or submit electronically regarding the information collection(s) comment letters in response to the to the NASD and the date on which should be submitted to the OMB Desk proposed rule change.6 Mr. Akridge Officer and the SSA Reports Clearance supported the proposal. Wulff, Hansen electronic filing or submission of these notices or documents will be required. Officer. The information can be mailed supported the general purpose of the and/or faxed to the individuals at the These communications will also advise rule change, but stated that converting addresses and fax numbers listed below: documents that exist only in paper form members that as of the specified date, (OMB) Office of Management and to electronic format could be electronic filing or submission of the Budget, Attn: Desk Officer for SSA, Fax: burdensome for firms that do not have specified regulatory notices or 202–395–6974. the necessary technology. On October 5, documents will be mandatory, and that (SSA) Social Security Administration, 2006, the NASD filed a response to the the NASD will no longer accept DCFAM, Attn: Reports Clearance comment letters.7 In its response, the facsimile or other non-electronic Officer, 1333 Annex Building, 6401 NASD stated that it intends to transmissions of these notices or Security Blvd., Baltimore, MD 21235; accommodate firms that do not have the documents. Fax: 410–965–6400. ability to convert documents to It is therefore ordered, pursuant to I. The information collections listed electronic format. Further, the NASD section 19(b)(2) of the Act,10 that the below are pending at SSA and will be stated that when technologies change, proposed rule change (SR–NASD–2006– submitted to OMB within 60 days from the NASD will consider the economic 060) is approved. the date of this notice. Therefore, your comments should be submitted to SSA Commission, dated May 16, 2006. The staff of the For the Commission, by the Division of within 60 days from the date of this Division of Market Regulation is issuing a no-action Market Regulation, pursuant to delegated publication. You can obtain copies of letter providing such relief. See letter from Michael authority.11 A. Macchiaroli, Associate Director, Division of the collection instruments by calling the Market Regulation, Commission, to Patrice Nancy M. Morris, SSA Reports Clearance Officer at 410– Gliniecki, Senior Vice President and General Secretary. 965–0454 or by writing to the address Counsel, NASD, dated October 26, 2006. Electronic [FR Doc. E6–18348 Filed 10–31–06; 8:45 am] listed above. filing of notices with the NASD does not affect 1. Statement of Household Expenses requirements in these rules to file notices with the BILLING CODE 8011–01–P Commission or other securities regulatory agencies. and Contributions—20 CFR 416.1130– 4 See Securities Exchange Act Release No. 54319 416.1148—0960–0456. SSA needs the (August 15, 2006), 71 FR 48958 (SR–NASD–2006– information about household expenses 060). and contributions, which is collected on 5 See Securities Exchange Act Release No. 54319A (September 18, 2006), 71 FR 55537 (SR– Form SSA–8011–F3, to determine whether the claimant or beneficiary NASD–2006–060). 8 In approving this proposed rule change, the 6 See e-mail dated August 31, 2006 from Frank Commission has considered the proposed rule’s receives in-kind support and Akridge Jr. (‘‘Mr. Akridge’’) and letter dated impact on efficiency, competition, and capital maintenance. This is necessary to September 7, 2006 from Chris Charles, President, formation. See 15 U.S.C. 78c(f). determine the claimant’s or Wulff, Hansen & Co. (‘‘Wulff, Hansen’’). 9 15 U.S.C. 78o–3(b)(6). 7 See letter from Shirley H. Weiss, Office of beneficiary’s eligibility for General Counsel, NASD, to Katherine A. England, 10 15 U.S.C. 78s(b)(2). Supplemental Security Income (SSI) Division of Market Regulation, Commission. 11 17 CFR 200.30–3(a)(12). and the amount of benefits payable.
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This form is not used for all claims and 0960–NEW. Form SSA–372 is used by Application Reporting posteligibility determinations; rather, it former SSI claimants who wish to Number of Respondents: 500. is used only when it is necessary to request Expedited Reinstatement (EXR) Frequency of Response: 1. document in-kind support and of their Title XVI disability payments. Average Burden per Response: 60 maintenance and only in cases where SSA uses the SSA–372 to obtain a minutes. the householder’s corroboration is signed statement from the individual Estimated Annual Burden: 500 hours. needed. Respondents are SSI applicants stating a request for EXR and to verify and/or beneficiaries. that the requestor meets the EXR CE Reporting Type of Request: Extension of an requirements. The form will be Number of Respondents: 300. OMB-approved information collection. maintained in the disability folder of the Frequency of Response: 1. Number of Respondents: 400,000. applicant to demonstrate that the Average Burden per Response: 30 Frequency of Response: 1. individual was aware of the EXR minutes. Average Burden per Response: 15 requirements and chose to request EXR. Estimated Annual Burden: 150 hours. minutes. Respondents are applicants for EXR of Estimated Annual Burden: 100,000 Title XVI SSI payments. Annual Reaffirmations Worksheet hours. Type of Request: Existing Information Number of Respondents: 450. 2. Representative Payee Report of Collection in Use Without an OMB Frequency of Response: 1. Benefits and Dedicated Account—20 Number. Average Burden per Response: 10 CFR 416.546, 416.635, 416.640, minutes. 416.665—0960–0576. The Social Number of Respondents: 2,000. Estimated Annual Burden: 75 hours. Security Act provides for representative Frequency of Response: 1. Total burden hours for all collection payees (RPs) to submit a written report Average Burden per Response: 2 activities—725 hours. accounting for the use of money paid to minutes. II. The information collections listed Supplemental SSI beneficiaries, and Estimated Annual Burden: 67 hours. below have been submitted to OMB for that RPs must establish and maintain a 5. Non-Attorney Representative clearance. Your comments on the dedicated account for these payments. Demonstration Project Application— information collections would be most The SSA–6233 is used to ensure that the 0960–0669. Section 303 of the Social useful if received by OMB and SSA RP is using the benefits received for the Security Protection Act of 2004 (SSPA) within 30 days from the date of this beneficiary’s current maintenance and provides for a 5-year demonstration publication. You can obtain a copy of personal needs, and the expenditures of project to be conducted by SSA under the OMB clearance packages by calling funds from the dedicated account are in which the direct payment of SSA- the SSA Reports Clearance Officer at compliance with the law. Respondents approved fees is extended to certain 410–965–0454, or by writing to the are representative payees for SSI non-attorney claimant representatives. address listed above. beneficiaries. Under the SSPA, to be eligible for direct 1. Employment Relationship Type of Request: Extension of an payment of fees, a non-attorney Questionnaire—20 CFR 404.1007— OMB-approved information collection. representative must fulfill the following Number of Respondents: 30,000. 0960–0040. Form SSA–7160–F4 is used statutory requirements: (1) Possess a in developing the question of employer- Frequency of Response: 1. bachelors degree or have equivalent Average Burden per Response: 20 employee relationships, except where qualifications derived from training and the worker is an officer of a corporation. minutes. work experience; (2) pass an Estimated Annual Burden: 10,000 This form gathers the information examination that tests knowledge of the needed for developing the employment hours. relevant provisions of the Social 3. Request for Reinstatement (Title relationship, and determining whether a Security Act; (3) secure professional II)—20 CFR 404.1592b—404.1592f— beneficiary is self-employed or an liability insurance or equivalent 0960–NEW. Form SSA–371 is used by employee. Respondents are beneficiaries insurance; (4) pass a criminal former beneficiaries for Title II benefits questioning their status as employees background check (information on these who wish to request Expedited and employers. 4 requirements will be collected during Reinstatement (EXR) of their Title II Type of Request: Extension of an initial reporting); (5) demonstrate disability benefits. SSA uses the SSA– OMB-approved information collection. completion of relevant continuing 371 to obtain a signed statement from Number of Respondents: 16,000. education courses (this information will the individual stating a request for EXR Frequency of Response: 1. be collected under the Continuing and to verify that the applicant meets Average Burden per Response: 25 Education (CE) reporting), and (6) the EXR requirements. The form will be minutes. complete an annual Affirmations maintained in the disability folder of the Estimated Annual Burden: 6,667 Worksheet to verify the participant’s applicant to demonstrate that the hours continued eligibility to participate in individual was aware of the EXR 2. Vocational Rehabilitation Provider the demonstration project. requirements and chose to request EXR. Claim—20 CFR 404.2108(b), Respondents are applicants for EXR of SSA collects this information through 404.2117(c)(1)&(2), 404.2101(b)&(c), Title II disability benefits. the services of a private contractor and 404.2121(a), 416.2208(b), Type of Request: Existing Information uses it to determine if a non-attorney 416.2217(c)(1)&(2), 416.2201(b)&(c), Collection in Use Without an OMB representative has met and continues to 416.2221(a)—0960–0310. The Social Number. meet the statutory requirements to be Security Administration (SSA) refers Number of Respondents: 10,000. eligible for direct payment of fees for his certain disability beneficiaries to State Frequency of Response: 1. or her claimant representation services. Vocational Rehabilitation (VR) agencies. Average Burden per Response: 2 The respondents are non-attorney The State VR agencies use the SSA–199 minutes. representatives who apply for direct to make claims for reimbursement of the Estimated Annual Burden: 333 hours. payment of fees. costs incurred from providing VR 4. Request for Reinstatement (Title Type of Request: Revision of an services for the beneficiaries. The XVI)—20 CFR 416.999—416.999d— existing information collection. information collected on the SSA–199 is
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used by SSA to determine whether or Respondents are State VR agencies who Type of Request: Revision of an OMB- not, and how much, to pay the State VR offer Vocational and Employment approved information collection. agencies under SSA’s VR program. services for SSA beneficiaries. Number of Respondents: 80.
Average Number of Total burden per Estimated Type of response (as explained below) respondents Frequency of response responses response annual burden (minutes) hours
a. (404.2108 and 416.2208) ...... 80 160 each/year ...... 12,800 23 4,907 b. (404.2117 and 416.2217) ...... 80 1 per year ...... 80 60 80 c. (404.2121 and 416.2221) ...... 80 2–3 per year ...... 200 100 333
Total ...... 80 ...... 13,080 ...... 5,320
Estimated Annual Burden: 5,320 teleconference are also central to the video sites are being used, the pilot hours. rules for the new disability guidelines provide for site inspections, 3. Pilot Program for Participating in determination process (final rule certain on-the-record certifications and Administrative Law Judge Hearings by published March 31, 2006 71 FR No. 62, other claimant safeguards to help ensure Using Privately Owned Video 16423). Pursuant to these rules, SSA is that no claimants are disadvantaged by Teleconferencing (VTC) Equipment—20 now preparing to pilot a program participating in their hearing from a CFR 404.936(c) & 416.1436(c)—0960– wherein private representatives and private site. Respondents to this NEW. their clients may appear at ALJ hearings collection will be the claimant’s using privately owned video equipment. representatives who elect to participate Background in the pilot. The pilot is structured to The VTC Activity On February 3, 2003, the begin with 10 private video sites Commissioner of Social Security SSA plans to expand its Video expanding to 30 private sites after a six- published a final rule allowing SSA to Teleconferencing program of month evaluation period. There will be conduct hearings before administrative Administrative Law Judge hearings by a second evaluation period after the 30 law judges (ALJs) at which a party or allowing these hearings to be conducted sites have operated for a six-month parties to the hearing and/or a witness from private representative sites that period. SSA will then make final or witnesses may appear before the ALJ have been certified by the agency. decisions regarding operating by video teleconferencing (68 FR No. 22 Representatives who are interested in procedures for a permanent program. , 5210). In that final rule we noted that participating in the pilot program or the Type of Request: New Information dialing into SSA’s VTC network from permanent program will need to provide Collection. private facilities, such as facilities some basic information about their Total Burden Hours for all owned by a law firm, could be possible location, the area they serve and their Collections: 717 burden hours (shown at a future date. Appearances by video expected workload. Because private below).
PHASE–I [10 sites for 6 months]
Average Number of Frequency of burden per Estimated Collection activity respondents response response annual burden (minutes) hours
Expression of Interest/Initial Contact ...... 100 1 15 25 Certifications Made in the Opening Statement of the Hearing ...... 10 100 10 167
Totals ...... 110 ...... 192
PHASE–II [30 sites for 6 months]
Average Number of Frequency of burden per Estimated Collection activity respondents response response annual burden (minutes) hours
Expression of Interest/Initial Contact ...... 100 1 15 25 Certifications Made in the Opening Statement of the Hearing ...... 30 100 10 500
Totals ...... 130 ...... 525
The estimated first year cost burden is—$450,000. This cost figure represents conferencing equipment, a FAX for all respondents to participate in the the agency’s estimated for respondents machine and a document camera as well Privately Owned VTC Equipment pilot to purchase and maintain video
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as the cost of an ISDN line or other data November 17, 2006, from 8:30 a.m. until DEPARTMENT OF STATE connection to the public network. 12 noon. Dated: October 26, 2006. Agenda: The full agenda will be [Public Notice 5601] Elizabeth A. Davidson, posted at least one week before the start Reports Clearance Officer, Social Security of the meeting on the Internet at http:// Notice of Effective Date for Administration. www.ssa.gov/work/panel/ Implementation of Five-Year Professor [FR Doc. E6–18322 Filed 10–31–06; 8:45 am] meeting_information/agendas.html, or and Research Scholar Exchange BILLING CODE 4191–02–P can be received, in advance, Program electronically or by fax upon request. Public testimony will be heard on AGENCY: Department of State. SOCIAL SECURITY ADMINISTRATION Thursday, November 16, 2006, from 4 ACTION: Notice. [Document No. 2006–SSA–0093] p.m. until 5 p.m. Individuals interested in providing testimony in person should SUMMARY: By final rule adopted May 19, The Ticket To Work and Work contact the Panel staff as outlined below 2005, 70 FR 28815, the Department of Incentives Advisory Panel Meeting to schedule a time slot. Members of the State amended its regulations and AGENCY: Social Security Administration public must schedule a time slot in extended the permitted program (SSA). order to comment. In the event public duration from three to five years for ACTION: Notice of quarterly meeting. comments do not take the entire professor and researcher participants in scheduled time period, the Panel may the Exchange Visitor Program. This rule DATES: November 15, 2006—9 a.m. to 5 use that time to deliberate or conduct also established clear eligibility p.m. other Panel business. Each individual requirements for repeat participation as November 16, 2006—1:30 p.m. to 5 providing public comment will be a professor or researcher in the p.m. acknowledged by the Chair in the order Exchange Visitor Program following a November 17, 2006—8:30 a.m. to 12 in which they are scheduled to testify two-year bar. Implementation of these noon. and is limited to a maximum five- changes was delayed until the ADDRESSES: Washington Plaza Hotel, 10 minute, verbal presentation. Department of Homeland Security could Thomas Circle, NW., Washington, DC Full written testimony on the complete modifications to the Student 20005. Implementation of the Ticket to Work and Exchange Visitor Information Phone: 202–842–1300. and Work Incentives Program, no longer System (SEVIS) necessary to permit SUPPLEMENTARY INFORMATION: Type of than five (5) pages, may be submitted in these changes to be reflected in SEVIS. meeting: On November 15–17, 2006, the person or by mail, fax or e-mail on an By SEVIS broadcast on October 6th, Ticket to Work and Work Incentives ongoing basis to the Panel for 2006, The Department of Homeland Advisory Panel (the ‘‘Panel’’) will hold consideration. Security announced its ability to a quarterly meeting open to the public. facilitate these changes effective Purpose: In accordance with section Since seating may be limited, persons November 4, 2006. 10(a)(2) of the Federal Advisory interested in providing testimony at the Committee Act, the Social Security meeting should contact the Panel staff Accordingly, as of November 4, 2006, Administration (SSA) announces a by e-mailing Ms. Tinya White-Taylor, at current and future professor and meeting of the Ticket to Work and Work [email protected] or by researcher program participants will be Incentives Advisory Panel. Section calling (202) 358–6420. eligible for five years of program 101(f) of Public Law 106–170 Contact Information: Records are kept participation as provided for in the final establishes the Panel to advise the of all proceedings and will be available rule. These participants will also be President, the Congress, and the for public inspection by appointment at subject to the eligibility requirements Commissioner of SSA on issues related the Panel office. Anyone requiring for repeat participation set forth in the to work incentive programs, planning, information regarding the Panel should final rule. Requirements governing and assistance for individuals with contact the staff by: initial eligibility for participation as a disabilities as provided under section professor or researcher are unchanged. 101(f)(2)(A) of the TWWIA. The Panel is • Mail addressed to the Social The final rule published May 19, 2005 also to advise the Commissioner on Security Administration, Ticket to Work matters specified in section 101(f)(2)(B) and Work Incentives Advisory Panel also established a new ‘‘G–7’’ of that Act, including certain issues Staff, 400 Virginia Avenue, SW., Suite administrative classification for certain related to the Ticket to Work and Self- 700, Washington, DC 20024. program sponsors. The Department will contact directly those sponsors eligible Sufficiency Program established under • Telephone contact with Tinya for the classification. No action, inquiry, section 101(a) of that Act. White-Taylor at (202) 358–6420. Interested parties are invited to attend or request regarding this classification is the meeting. The Panel will use the • Fax at (202) 358–6440. necessary on the part of existing meeting time to receive briefings and • E-mail to [email protected]. sponsors. This certification will be presentations on matters of interest, published in the Federal Register. Dated: October 24, 2006. conduct full Panel deliberations on the Dated: October 25, 2006. implementation of the Act and receive Chris Silanskis, Stanley S. Colvin, public testimony. Designated Federal Officer. The Panel will meet in person [FR Doc. 06–8995 Filed 10–31–06; 8:45 am] Director, Office of Exchange Coordination and Designation, Department of State. commencing on Wednesday, November BILLING CODE 4191–02–M 15, 2006, from 9 a.m. until 5 p.m. The [FR Doc. E6–18409 Filed 10–31–06; 8:45 am] quarterly meeting will continue on BILLING CODE 4710–05–P Thursday, November 16, 2006, from 1:30 p.m. until 5 p.m. and on Friday,
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DEPARTMENT OF TRANSPORTATION Issued in Washington, DC on October 25, Manager, Federal Highway 2006. Administration, Jackson Federal Federal Aviation Administration Eve Taylor Adams, Building, 915 2nd Avenue, Room 3142, [Summary Notice No. PE–2006–38] Acting Director, Office of Rulemaking. Seattle, Washington, 98174; telephone: (206) 220–7536; and e-mail: Petitions for Exemption Petitions for Exemption; Summary of [email protected]. The FHWA Petitions Received Docket No.: FAA–2006–25888. Washington Division’s Oversight Petitioner: United Airlines. Manager’s regular office hours are AGENCY: Federal Aviation Section of 14 CFR Affected: 14 CFR between 8 a.m. and 4:30 p.m. (Pacific Administration (FAA), DOT. Part 43 Appendix A. Time). You may also contact Allison ACTION: Notice of petitions for Description of Relief Sought: The Ray, I–405 Environmental Manager, exemption received. exemption, if granted, would allow Washington State Department of United to classify repairs and alterations Transportation, 600–108th Avenue NE., SUMMARY: Pursuant to FAA’s rulemaking using decision diagrams based on 14 provisions governing the application, Suite 405, Bellevue, Washington, 98004; CFR 1.1 rather than 14 CFR part 43 telephone: (425) 456–8500; and e-mail: processing, and disposition of petitions Appendix A. for exemption part 11 of Title 14, Code [email protected]. The I–405 Docket No.: FAA–2006–25888. Corridor Program’s regular office hours of Federal Regulations (14 CFR), this Petitioner: American Airlines, Inc. notice contains a summary of certain are between 8 a.m. and 5 p.m. (Pacific Section of 14 CFR Affected: 14 CFR Time). petitions seeking relief from specified Part 43 Appendix A. requirements of 14 CFR. The purpose of Description of Relief Sought: The SUPPLEMENTARY INFORMATION: Notice is this notice is to improve the public’s exemption, if granted, would allow hereby given that the FHWA and other awareness of, and participation in, this American Airlines to determine the Federal agencies have taken final agency aspect of FAA’s regulatory activities. major or minor classification of a repair actions by issuing licenses, permits, and Neither publication of this notice nor or alteration using methodology based approvals for the I–405 Corridor from the inclusion or omission of information on the definitions for major repair and the interchange with Interstate 5 in in the summary is intended to affect the major alteration given in part 43 Tukwila to the interchange with legal status of any petition or its final Appendix A. Interstate 5 in Lynnwood and related I– disposition. 405 Corridor Program projects in King [FR Doc. E6–18394 Filed 10–31–06; 8:45 am] DATES: Comments on petitions received and Snohomish Counties, Washington. must identify the petition docket BILLING CODE 4910–13–P Corridor improvements, phased over the number involved and must be received next 20 to 30 years based on the on or before November 21, 2006. DEPARTMENT OF TRANSPORTATION availability of funding, include adding ADDRESSES: You may submit comments up to two new lanes in each direction (identified by DOT DMS Docket Number Federal Highway Administration to I–405, a corridor-wide bus rapid FAA–2006–25888 or FAA–2006–26060) transit system and increased local by any of the following methods: Notice of Final Federal Agency Actions transit. Corridor improvements also • Web Site: http://dms.dot.gov. on Proposed Highways in Washington include improving the SR 167/I–405 Follow the instructions for submitting interchange and some key arterials, AGENCY: comments on the DOT electronic docket Federal Highway expanding transit centers, adding site. Administration (FHWA), DOT. approximately 5,000 park-and-ride • Fax: 1–202–493–2251. ACTION: Notice of Limitation on Claims spaces, and providing improved and • Mail: Docket Management Facility; for Judicial Review of Actions by FHWA new pedestrian / bicycle connections. and Other Federal Agencies. U.S. Department of Transportation, 400 The actions by the Federal agencies Seventh Street, SW., Nassif Building, SUMMARY: on this project, and the laws under Room PL–401, Washington, DC 20590– This notice announces actions taken by the FHWA and other Federal which such actions were taken, are 001. described in the corridor-level final • Hand Delivery: Room PL–401 on agencies that are final within the environmental impact statement (FEIS), the plaza level of the Nassif Building, meaning of 23 U.S.C. 139(l)(1)–(2). The Record of Decision (ROD), in project- 400 Seventh Street, SW., Washington, actions relate to various proposed level environmental assessments (EA) DC, between 9 a.m. and 5 p.m., Monday transit and road improvement projects and Finding of No Significant Impact through Friday, except Federal holidays. within the Interstate 405 (I–405) (FONSI), and a documented categorical Docket: For access to the docket to Corridor in the State of Washington. exclusion (CE), and in other documents read background documents or Those actions grant licenses, permits, in the FHWA administrative record for comments received, go to http:// and approvals for the projects. the project. The FEIS, EAs, CE, and dms.dot.gov at any time or to Room PL– DATES: By this notice, the FHWA is other documents from the FHWA 401 on the plaza level of the Nassif advising the public of final agency administrative record files for the listed Building, 400 Seventh Street, SW., actions subject to 23 U.S.C. 139(l)(1)– projects are available by contacting the Washington, DC, between 9 a.m. and 5 (2). A claim seeking judicial review of FHWA or the Washington State p.m., Monday through Friday, except the Federal agency actions on any of the Department of Transportation at the Federal holidays. listed highway projects will be barred addresses provided above. FOR FURTHER INFORMATION CONTACT: unless the claim is filed on or before Susan Lender (202) 267–8029 or Frances April 30, 2007. If the Federal law that This notice applies to all Federal Shaver (202) 267–9681, Office of authorizes judicial review of a claim agency decisions on the listed projects Rulemaking (ARM–1), Federal Aviation provides a time period of less than 180 as of the issuance date of this notice and Administration, 800 Independence days for filing such claim, then that all laws under which such actions were Avenue, SW., Washington, DC 20591. shorter time period still applies. taken, including but not limited to: This notice is published pursuant to FOR FURTHER INFORMATION CONTACT: 1. General: National Environmental 14 CFR 11.85 and 11.91. Stephen Boch, Major Project Oversight Policy Act [42 U.S.C. 4321–4351];
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Federal-Aid Highway Act [23 U.S.C. Indian Tribal Governments; E.O. 11514 auxiliary lane, a new three-lane 109]. Protection and Enhancement of southbound structure over I–90 and 2. Air: Clean Air Act, as amended [42 Environmental Quality; E.O. 13112 converting the existing southbound U.S.C. 7401–7671(q)]. Invasive Species. structure to a northbound HOV lane. 3. Land: Section 4(f) of the The projects subject to this notice are: NEPA document: DCE, signed June 9, Department of Transportation Act of 1. Project Location: Tukwila, Renton, 2006. 1966 [49 U.S.C. 303]; Landscaping and Newcastle, Bellevue, Kirkland, Bothell, (Catalog of Federal Domestic Assistance Scenic Enhancement (Wildflowers) [23 and Lynnwood; King and Snohomish Program Number 20.205, Highway Planning U.S.C. 319]. Counties; I–405. Project Reference and Construction. The regulations 4. Wildlife: Endangered Species Act Number: STP 4053(840). Project type: implementing Executive Order 12372 [16 U.S.C. 1531–1544]; Anadromous The ‘‘I–405 Corridor Program’’ consists regarding intergovernmental consultation on Fish Conservation Act [16 U.S.C. of multi-modal improvements along the Federal programs and activities apply to this 757(a)–757(g)]; Fish and Wildlife approximate 30-mile corridor of I–405. program.) Coordination Act [16 U.S.C. 661– NEPA document: Corridor-level FEIS, Authority: 23 U.S.C. 139(l)(1)–(2). 667(d)]; Magnuson-Stevenson Fishery June 2002; Record of Decision (ROD), Issued on: October 26, 2006. Conservation and Management Act of October 9, 2002. 1976, as amended [16 U.S.C. 1801 et 2. Project Location: Bellevue, Stephen P. Boch, seq.]. Kirkland and Bothell; King County; I– Major Project Oversight Manager, Seattle, 5. Historic and Cultural Resources: 405. Project Reference Number: Since Washington. Section 106 of the National Historic federal funding is not currently [FR Doc. E6–18369 Filed 10–31–06; 8:45 am] Preservation Act of 1966, as amended available for this project, an FHWA BILLING CODE 4910–RY–P [16 U.S.C. 470(f) et seq.]; Archaeological project number has not been Resources Protection Act of 1977 [16 established. Project type: The ‘‘I–405 SR U.S.C. 470(aa)–11]; Archaeological and 520 to SR 522—Kirkland Nickel Project’’ DEPARTMENT OF TRANSPORTATION Historic Preservation Act [16 U.S.C. is located along a 7.6-mile section of I– Federal Transit Administration 469–469(c)]; Native American Grave 405 between SR 520 and SR 522. It Protection and Repatriation Act [25 consists of a new northbound general- Preparation of an Environmental U.S.C. 3001–3013]. purpose lane on I–405 from the NE 70th Impact Statement for the Dumbarton 6. Social and Economic: Civil Rights Street interchange to the NE 124th Rail Corridor Project in the Southern Act of 1964 [42 U.S.C. 2000(d)– Street interchange, a new southbound Portion of the San Francisco Bay Area, 2000(d)(1)]; American Indian Religious general-purpose lane from just south of CA Freedom Act [42 U.S.C. 1996]; Farmland the SR 522 interchange to just north of Protection Policy Act [7 U.S.C. 4201– the SR 520 interchange, and AGENCY: Federal Transit Administration 4209]; the Uniform Relocation reconfiguration of the interchange at NE (FTA), Department of Transportation Assistance and Real Property 116th Street to improve traffic (DOT). Acquisition Policies Act of 1970, as operations. NEPA document: EA, ACTION: Notice of Intent (NOI) to prepare amended [42 U.S.C. 61]. February 2005; Finding of No Environmental Impact Statement (EIS). 7. Wetlands and Water Resources: Significant Impact (FONSI), signed Clean Water Act, 33 U.S.C. 1251–1377 April 14, 2005. SUMMARY: The Federal Transit (Section 404, Section 401, Section 319); 3. Project Location: Bellevue, King Administration and the Peninsula Coastal Zone Management Act [16 County, I–405. Project Reference Corridor Joint Powers Board (PCJPB) are U.S.C. 1451–1465]; Land and Water Number: Since federal funding is not planning to prepare an Environmental Conservation Fund [16 U.S.C. 4601– currently available for this project, an Impact Statement/Environmental 4604]; Safe Drinking Water Act [42 FHWA project number has not been Impact Report for the Dumbarton Rail U.S.C. 300(f)–300(j)(6)]; Rivers and established. Project type: The ‘‘I–405 Corridor (DRC) Project, an Harbors Act of 1899 [33 U.S.C. 401– Bellevue Nickel Improvement Project— approximately 21-mile commuter rail 406]; TEA–21 Wetlands Mitigation [23 I–90 to Southeast 8th Street’’ extends extension on existing rail alignment to U.S.C. 103(b)(6)(m), 133(b)(11)]; Flood along a 2-mile section of I–405 between provide commuter rail service between Disaster Protection Act [42 U.S.C. 4001– I–90 and SE 8th Street. It consists of one the Peninsula and the East Bay across 4128]. new general-purpose lane in each the southern part of the San Francisco 8. Hazardous Materials: direction along I–405 and extends the Bay. The EIS will be prepared in Comprehensive Environmental existing outside southbound HOV lane accordance with regulations Response, Compensation, and Liability north from I–90 near the Wilburton implementing the National Act [42 U.S.C. 9601–9675]; Superfund tunnel to SE 8th Street. NEPA Environmental Policy Act (NEPA) as Amendments and Reauthorization Act document: EA, January 2006; Finding of well as provisions of the recently of 1986 [PL 99–499]; Resource No Significant Impact (FONSI), signed enacted Safe, Accountable, Flexible, Conservation and Recovery Act [42 August 11, 2006. Efficient Transportation Equity Act: A U.S.C. 6901–6992(k)]. 4. Project Location: Bellevue, King Legacy for Users. The purpose of this 9. Executive Orders: E.O. 11990 County, I–405. Project Reference Notice of Intent is to alert interested Protection of Wetlands; E.O. 11988 Number: Since federal funding is not parties regarding the plan to prepare the Floodplain Management; E.O. 12898, currently available for this project, an EIS, to provide information on the Federal Actions to Address FHWA project number has not been proposed transit project, to invite Environmental Justice in Minority established. Project type: The ‘‘I–405, participation in the EIS process, Populations and Low Income 112th Ave SE to I–90 Widening Project’’ including comments on the scope of the Populations; E.O. 11593 Protection and extends along a 2-mile section of I–405 EIS proposed in this notice, and to Enhancement of Cultural Resources; starting at the I–405 and 112th Ave SE announce that public scoping meetings E.O. 13007 Indian Sacred Sites; E.O. interchange and extending to just north will be conducted. 13287 Preserve America; E.O. 13175 of the I–90 and I–405 interchange. It DATES: Written comments on the scope Consultation and Coordination with consists of one new northbound of the EIS should be sent to Marie Pang,
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PCJPB Environmental Manager, by Willow Road Station (Menlo Park/East Committee on June 20, 2006. The final November 30, 2006. Public scoping Palo Alto), Newark Station, and the report is available on the official meetings will be held on November 15, Union City Intermodal Station. Dumbarton Rail Corridor Project Web 2006 and November 16, 2006 from 6:30 Service will consist of six daily trains site at www.caltrain.com/ p.m. to 8:30 p.m. at locations indicated originating from Union City in the dumbartonrail. under ADDRESSES below. An interagency morning peak period and traveling The alternatives under consideration scoping meeting for agencies with an westward across the Dumbarton Rail are: interest in the proposed project will be Corridor, The trains converge with the (1) No Action—The Dumbarton held on November 16, 2006 from 3 p.m. existing Caltrain line in the West Bay. Express bus service will continue to be to 5 p.m. at the West Bay location listed From the Caltrain line, three of the the only commuter transit between the below. trains will travel north to San Francisco East Bay and the Peninsula that crosses ADDRESSES: Written comments on the while the other three trains will travel the southern portion of the Bay. scope of the EIS should be sent to Marie south to San Jose. During the afternoon (2) Alternative A—DRC trackage, Pang, Environmental Manager, peak period, all trains will travel connecting to the existing Caltrain Peninsula Corridor Joint Powers Board, eastbound back to Union City. The three Corridor on the Peninsula at Redwood P.O. Box 3006, San Carlos, CA 94070– new stations plus the Centerville Station Junction, will cross the San Francisco Bay via the Dumbarton Railroad Bridge, 1306. Comments may also be offered at in Fremont would be directly served by run through Newark and connect to the public scoping meetings. The DRC trains. The Capitol Corridor trains existing tracks that run north to Union addresses for the public scoping would also be served by the Union City City. The track improvements will meetings are as follows: Intermodal, Newark and Centerville East Bay Location: Wednesday, stations. The ACE trains would be include the Shinn Connection and the November 15, 2006, Newark served by the Newark and Centerville Industrial Parkway Connection, which Community Center, 35501 Cedar stations. will connect the DRC with ACE and Blvd, Newark, CA 94560. Purpose and Need for the Proposed Capitol Corridor trains in Fremont and West Bay Location: Thursday, Project: In March 2004, the voters of the Union City in the East Bay. A train November 16, 2006, City of Menlo Bay Area counties passed the Regional storage and layover yard will be Park Senior Center, 110 Terminal Traffic Relief Plan, also known as constructed. Two locations are under Avenue, Menlo Park, CA 94025. Regional Measure 2 (RM2) to fund a consideration. Three new stations will variety of transportation improvements be constructed at Union City, Newark The meeting facilities will be to help relieve traffic congestion and and Menlo Park. The Centerville Station accessible to persons with disabilities. If enhance the convenience and reliability in Fremont would be upgraded. special translation or signing services or of the region’s public transit system by Reconstruction of the marine bridges other special accommodations are raising bridge tolls. RM2 includes crossing the San Francisco Bay includes needed, please contact Beth Altshuler at funding for the proposed DRC Project. replacement of the Dumbarton and the 510–845–7549, ext. 165 at least 48 hours This project is included in the 2007 Newark Slough moveable bridges and before the scoping meeting. Transportation Improvement Program the modification of the Henderson FOR FURTHER INFORMATION CONTACT: (TIP) adopted by the Metropolitan Underpass. New railroad signals and a Jerome Wiggins, Transportation Program Transportation Commission (MTC) on Centralized Traffic Control system will Specialist, of the Federal Transit October 2, 2006. be provided to control movements onto Administration’s San Francisco A connection is needed to address and through the Dumbarton Rail Regional Office at (415) 744–3115. transportation issues and deficiencies Corridor. SUPPLEMENTARY INFORMATION: related to highway congestion, transit, (3) Alternative B—The same as The Proposed Project: The Dumbarton population and employment, and air Alternative A, with the addition of the Rail Corridor Project proposes to quality in the corridor. The purpose of Niles Junction Connection. The freight provide east-west commuter rail service the proposed Dumbarton Rail Corridor traffic through the Fremont Centerville across the southern section of the S.F. Project is to use existing rail station will be decreased by re-routing Bay. This would be accomplished by infrastructure to provide an east-west freight trains between the Oakland primarily rehabilitating and rail connection in the southern portion Subdivision and the Niles Subdivision reconstructing rail facilities on existing of the San Francisco Bay, connecting the over the new Niles Junction Connection. alignment and right-of-way. The communities of the East Bay and the (4) Bus Alternative—This alternative alignment consists of two parts. The West Bay. proposes a new bus route that originates first part is an existing 11-mile rail Alternatives: In addition to the No in Union City, crosses the Dumbarton corridor extending east along the former Action Alternative, two rail alternatives Highway Bridge (Route 84), and travels Southern Pacific Centerville line from and one bus alternative are proposed to to Redwood Shores. Redwood Junction in San Mateo County be evaluated in the EIS. An Alternatives This alternative could serve as the across the Dumbarton and Newark Analysis was conducted to identify the initial start-up phase of an expanded Slough Railroad Bridges to the Newark most feasible rail and bus alternatives to bus service across the Dumbarton Junction in Alameda County. It is be carried forward into detailed Highway Bridge. The expanded service owned by the San Mateo County Transit environmental studies. The Alternatives would extend northward to Foster City, District (Samtrans). The second part is Analysis study process was directed and Millbrae, Oyster Point and Brisbane on an existing 10-mile rail corridor owned guided by a Technical Advisory the Peninsula. by the Union Pacific Railroad (UPRR), Committee (TAC) and a Policy Advisory The EIS Process and the Role of extending from Newark Junction east Committee (PAC). These committees Participating Agencies and the Public: along the Niles subdivision through consisted of representatives from state, The purpose of the EIS process is to Union City to the UPRR Oakland regional and county transportation/ explore in a public setting potentially subdivision rail corridor at Industrial transit agencies, as well as the affected significant effects of implementing the Parkway. The project also includes the cities on both sides of the Bay. The proposed action and alternatives on the construction of a train layover yard on Alternatives Analysis report was physical, human, and natural the east side and three new stations: approved by the Policy Advisory environment. Areas of investigation
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include, but are not limited to, land use, also welcomed. All comments and Application: Applicants may use the environmental justice, historic suggestions will be given serious ACT Application Form on the IRS Web resources, visual and aesthetic qualities, consideration. site (http://www.irs.gov/ep; http:// air quality, noise and vibration, energy In accordance with 23 CFR 771.105(a) www.irs.gov.eo; http://www.irs.gov/ use, traffic, safety and security, and 771.133, FTA will comply with all bonds; or http://www.irs.gov/govts) or wetlands, threatened and endangered Federal environmental laws, regulations may send an application by letter with species, and hazardous materials. and executive orders applicable to the the following information: Name; Other Regulations implementing NEPA, as proposed project during the Name(s) Used and Date(s) (required for well as provisions of the recently environmental review process to the FBI check); Date of Birth (required for enacted Safe, Accountable, Flexible, maximum extent practicable. These FBI check); City and State of Birth Efficient Transportation Equity Act: A requirements include, but are not (required for FBI check); Current Legacy for Users (SAFETEA–LU), call limited to, the regulations of the Council Address; Telephone and Fax Numbers; for public involvement in the EIS on Environmental Quality and E-mail address, if any. Applications process. Section 6002 of SAFETEA–LU implementing NEPA (40 CFR parts should also describe and document the requires that FTA and PCJPB do the 1500–1508 and 23 CFR part 771), the proposed member’s qualifications for following: (1) Extend an invitation to project-level air quality conformity membership on the ACT. Applicants other Federal and non-Federal agencies regulation of the U.S. Environmental should also specify the vacancy for and Indian tribes that may have an Protection Agency (EPA) (40 CFR part which they wish to be considered. interest in the proposed project to 93), section 404(b)(1) guidelines of EPA ADDRESSES: Send all applications and become ‘‘participating agencies’’, (2) (40 CFR part 230), Executive Orders nominations to: Steven Pyrek; Director, provide an opportunity for involvement 11988, 11990 and 12898 regarding TE/GE Communications and Liaison; by participating agencies and the public floodplains, wetlands, and 1111 Constitution Ave., NW.—SE:T:CL, in helping to define the purpose and environmental justice, respectively, Penn Bldg; Washington, DC 20224; Fax: need for a proposed project, as well as Section 106 of the National Historic (202) 283–9956 (not a toll-free number); the range of alternatives for Preservation Act (36 CFR Part 800), E-mail: [email protected]. consideration in the impact statement, Section 7 of the Endangered Species Act FOR FURTHER INFORMATION CONTACT: and (3) establish a plan for coordinating (50 CFR part 402), and section 4(f) of the Steven Pyrek (202) 283–9966 (not a toll- public and agency participation in and Department of Transportation Act (23 free number), or by e-mail. comment on the environmental review CFR 771.135). process. An invitation to become a SUPPLEMENTARY INFORMATION: The participating agency, with the scoping Issued on: October 26, 2006. Advisory Committee on Tax Exempt information packet appended, will be Leslie T. Rogers, and Government Entities (ACT), extended to other Federal and non- Regional Administrator, FTA, Region 9. governed by the Federal Advisory Federal agencies and Indian tribes that [FR Doc. E6–18393 Filed 10–31–06; 8:45 am] Committee Act, Public Law No. 92–463, may have an interest in the proposed BILLING CODE 4910–57–P is an organized public forum for project. It is possible that we may not be discussion of relevant employee plans, able to identify all Federal and non- exempt organizations, tax-exempt bonds, and Federal, State, local and Federal agencies and Indian tribes that DEPARTMENT OF THE TREASURY may have such an interest. Any Federal Indian tribal government issues between or non-Federal agency or Indian tribe Internal Revenue Service officials of the IRS and representatives interested in the proposed project that of the above communities. The ACT also does not receive an invitation to become Request for Applications for the IRS enables the IRS to receive regular input a participating agency should notify, at Advisory Committee on Tax Exempt with respect to the development and the earliest opportunity, the and Government Entities implementation of IRS policy Environmental Manager identified concerning these communities. ACT AGENCY: Internal Revenue Service (IRS). above under ADDRESSES. members present the interested public’s A comprehensive public involvement ACTION: Notice. observations about current or proposed program has been developed. A Policy IRS policies, programs, and procedures, SUMMARY: The Internal Revenue Service Advisory Committee (PAC) consisting of as well as suggest improvements. local and county officials and a Project (IRS) is requesting applications for ACT members shall be appointed by Development Team consisting of membership to serve on the Advisory the Secretary of the Treasury and shall representatives of state, regional and Committee on Tax Exempt and serve a two-year term. Terms can be local agencies are already in place. A Government Entities (ACT). extended for an additional year. ACT Community Advisory Committee will be Applications will be accepted for members will not be paid for their time established. The program also includes several vacancies which will occur in or services. ACT members will be a public scoping process, public June 2007: At least two (2) employee reimbursed for their travel-related hearings on release of the Draft plans; at least two (2) exempt expenses to attend working sessions and Environmental Impact Statement (DEIS), organizations; at least one (1) Indian public meetings, in accordance with 5 development of project newsletters and tribal governments; and at least one (1) U.S.C. 5703. their distribution and posting on the tax exempt bonds. (There are currently The Secretary of the Treasury invites project Web site. no vacancies for federal, state and local those individuals, organizations, and We invite the public and participating governments.) To ensure appropriate groups affiliated with employee plans, agencies to consider the preliminary balance of membership, final selection exempt organizations, tax-exempt statement of purposes of and need for from qualified candidates will be bonds, and federal, state, local or Indian the proposed project, as well as the determined based on experience, tribal governments, to nominate alternatives proposed for consideration. qualifications, and other expertise. individuals for membership on the ACT. Comments on potential significant DATES: Written applications or Nominations should describe and environmental impacts that may be nominations must be received on or document the proposed member’s associated with the proposed project are before December 1, 2006. qualifications for membership on the
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ACT. Nominations should also specify because we are always interested in 3501–3521), Federal agencies must the vacancy for which they wish to be community input we will accept public obtain approval from the Office of considered. The Secretary seeks a comments. Please contact Mary Ann Management and Budget (OMB) for each diverse group of members representing Delzer at 1–888–912–1227 or (414) 231– collection of information they conduct a broad spectrum of persons 2360 for dial-in information. or sponsor. This request for comment is experienced in employee plans, exempt The agenda will include the being made pursuant to section organizations, tax-exempt bonds, and following: Various IRS issues. 3506(c)(2)(A) of the PRA. Federal, State, local or Indian tribal Dated: October 23, 2006. With respect to the following governments. Bernard Coston, collection of information, VBA invites Nominees must go through a Director, Taxpayer Advocacy Panel. comments on: (1) Whether the proposed clearance process before selection. In collection of information is necessary [FR Doc. E6–18327 Filed 10–31–06; 8:45 am] accordance with Department of the for the proper performance of VBA’s Treasury Directive 21–03, the clearance BILLING CODE 4830–01–P functions, including whether the process includes, among other things, information will have practical utility; pre-appointment and annual tax checks, (2) the accuracy of VBA’s estimate of the DEPARTMENT OF VETERANS and a Federal Bureau of Investigation burden of the proposed collection of AFFAIRS criminal and subversive name check information; (3) ways to enhance the and security clearance. [OMB Control No. 2900–0001] quality, utility, and clarity of the Dated: October 26, 2006. information to be collected; and (4) Steven J. Pyrek, Proposed Information Collection ways to minimize the burden of the Activity: Proposed Collection; Designated Federal Official, Tax Exempt and collection of information on Government Entities Division, Internal Comment Request respondents, including through the use Revenue Service. AGENCY: Veterans Benefits of automated collection techniques or [FR Doc. E6–18329 Filed 10–31–06; 8:45 am] Administration, Department of Veterans the use of other forms of information BILLING CODE 4830–01–P Affairs. technology. Title: Veteran’s Application for ACTION: Notice. Compensation and/or Pension, VA Form DEPARTMENT OF THE TREASURY SUMMARY: The Veterans Benefits 21–526. Administration (VBA), Department of OMB Control Number: 2900–0001. Internal Revenue Service Veterans Affairs (VA), is announcing an Type of Review: Extension of a opportunity for public comment on the currently approved collection. Open Meeting of the Area 4 Taxpayer proposed collection of certain Abstract: Veterans complete VA Form Advocacy Panel (Including the States information by the Agency. Under the 21–526 to apply for compensation and/ of Illinois, Indiana, Kentucky, Michigan, Paperwork Reduction Act (PRA) of or pension benefits. Ohio, Tennessee, and Wisconsin) 1995, Federal agencies are required to Affected Public: Individuals or AGENCY: Internal Revenue Service (IRS), publish notice in the Federal Register households. Treasury. concerning each proposed collection of Estimated Annual Burden: 592,500 ACTION: Notice. information, including each extension hours. of a currently approved collection and Estimated Average Burden per SUMMARY: An open meeting of the Area allow 60 days for public comment in Respondent: 1 hour and 30 minutes. 4 Taxpayer Advocacy Panel will be response to the notice. This notice Frequency of Response: On occasion. conducted (via teleconference). The solicits comments on information Estimated Number of Respondents: Taxpayer Advocacy Panel is soliciting needed to determine a veteran’s 395,000. public comment, ideas, and suggestions eligibility, dependency, and income, as Dated: October 19, 2006. on improving customer service at the applicable, for compensation and/or By direction of the Secretary. Internal Revenue Service. pension benefits. Denise McLamb, DATES: The meeting will be held DATES: Written comments and Initiative Coordination Service. Tuesday, November 28, 2006, at 11 a.m., recommendations on the proposed central time. collection of information should be [FR Doc. E6–18417 Filed 10–31–06; 8:45 am] BILLING CODE 8320–01–P FOR FURTHER INFORMATION CONTACT: received on or before January 2, 2007. Mary Ann Delzer at 1–888–912–1227, or ADDRESSES: Submit written comments (414) 231–2360. on the collection of information through DEPARTMENT OF VETERANS SUPPLEMENTARY INFORMATION: Notice is www.Regulations.gov; or to Nancy J. AFFAIRS hereby given pursuant to Section Kessinger, Veterans Benefits 10(a)(2) of the Federal Advisory Administration (20M35), Department of [OMB Control No. 2900–0569] Committee Act, 5 U.S.C. App. (1988) Veterans Affairs, 810 Vermont Avenue, Proposed Information Collection that a meeting of the Area 4 Taxpayer NW, Washington, DC 20420 or e-mail: Activity: Proposed Collection; Advocacy Panel will be held Tuesday, [email protected]. Please refer to Comment Request November 28, 2006, at 11 a.m., central ‘‘OMB Control No. 2900–0001’’ in any time via a telephone conference call. correspondence. During the comment AGENCY: Veterans Benefits You can submit written comments to period, comments may be viewed online Administration, Department of Veterans the panel by faxing the comments to through the Federal Docket Management Affairs. System (FDMS) at www.Regulations.gov. (414) 231–2363, or by mail to Taxpayer ACTION: Notice. Advocacy Panel, Stop 1006MIL, PO Box FOR FURTHER INFORMATION CONTACT: 3205, Milwaukee, WI 53203–2221, or Nancy J. Kessinger at (202) 273–7079 or SUMMARY: The Veterans Benefits you can contact us at http:// FAX (202) 275–5947. Administration (VBA) is announcing an www.improveirs.org. This meeting is not SUPPLEMENTARY INFORMATION: Under the opportunity for public comment on the required to be open to the public, but PRA of 1995 (Pub. L. 104–13; 44 U.S.C. proposed collection of certain
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information by the agency. Under the System (FDMS) at http:// collection of information on Paperwork Reduction Act (PRA) of www.Regulations.gov. respondents, including through the use 1995, Federal agencies are required to of automated collection techniques or FOR FURTHER INFORMATION CONTACT: publish notice in the Federal Register the use of other forms of information concerning each proposed collection of Nancy Kessinger at (202) 273–7079 or technology. FAX (202) 275–5947. information, including each proposed Title: VA Voluntary Customer Surveys extension of a currently approved SUPPLEMENTARY INFORMATION: Under the to Implement E.O. 12862. collection, and allow 60 days for public PRA of 1995 (Pub. L. 104–13; 44 U.S.C. OMB Control Number: 2900–0569. comment in response to the notice. This 3501–3521), Federal agencies must Type of Review: Extension of a notice solicits comments on obtain approval from the Office of currently approved collection. requirements relating to customer Management and Budget (OMB) for each Abstract: VBA administers integrated satisfaction surveys. collection of information they conduct programs of benefits and services, DATES: Written comments and or sponsor. This request for comment is established by law for veterans and their recommendations on the proposed being made pursuant to Section survivors, and service personnel. collection of information should be 3506(c)(2)(A) of the PRA. Executive Order 12862, Setting received on or before January 2, 2007. With respect to the following Customer Service Standards, requires ADDRESSES: Submit written comments collection of information, VBA invites Federal agencies and departments to on the collection of information through comments on: (1) Whether the proposed identify and survey its customers to http://www.Regulations.gov: or to Nancy collection of information is necessary determine the kind and quality of Kessinger, Veterans Benefits for the proper performance of VBA’s services they want and their level of Administration (20M35), Department of functions, including whether the satisfaction with existing service. Veterans Affairs, 810 Vermont Avenue, information will have practical utility; Customer satisfaction surveys are used NW., Washington, DC 20420 or e-mail: (2) the accuracy of VBA’s estimate of the to gauge customer perceptions of VA [email protected]. Please refer to burden of the proposed collection of services as well as customer ‘‘OMB Control No. 2900–0569’’ in any information; (3) ways to enhance the expectations and desires. correspondence. During the comment quality, utility, and clarity of the Affected Public: Individuals or period, comments may be viewed online information to be collected; and (4) households and businesses or other for- through the Federal Docket Management ways to minimize the burden of the profits.
LISTING OF SURVEY ACTIVITIES
Number of Year respondents Estimated annual burden Frequency of response
Survey of Veterans’ Satisfaction with the VA Compensation and Pension Claims Process—20 minutes
2007 ...... 24,000 8,000 hours...... One-time. 2008 ...... 24,000 8,000 hours...... One-time. 2009 ...... 24,000 8,000 hours...... One-time.
Survey of Veterans’/Dependents’ and Servicemembers’ Satisfaction with the VA Education Claims Process—20 minutes
2007 ...... 2,968 989 hours...... One-time.
2008 ...... 2,968 989 hours...... One-time.
2009 ...... 2,968 989 hours...... One-time.
Survey of Educational Institution Certifying Officials—20 minutes
2007 ...... 1,000 333 hours...... One-time.
2008 ...... 1,000 333 hours...... One-time.
2009 ...... 1,000 333 hours...... One-time.
Survey of Veterans’ Satisfaction with the VA Home Loan Guaranty Process—10 minutes
2007 ...... 7,560 1,260 hours...... One-time.
2008 ...... 7,560 1,260 hours...... One-time
2009 ...... 7,560 1,260 hours...... One-time.
VA Loan Guaranty Lender Satisfaction Survey—20 minutes
2007 ...... 1,992 498 hours...... One-time.
2008 ...... 1,992 498 hours...... One-time.
2009 ...... 1,992 498 hours...... One-time.
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LISTING OF SURVEY ACTIVITIES—Continued
Number of Year respondents Estimated annual burden Frequency of response
VA Survey of Veterans’ Satisfaction with the Vocational Rehabilitation & Employment Program—20 minutes
2007 ...... 3,300 1,100 hours...... One-time.
2008 ...... 3,300 1,100 hours...... One-time.
2009 ...... 3,300 1,100 hours...... One-time.
Insurance Customer Surveys—6 minutes
2007 ...... 2,800 280 hours...... One-time.
2008 ...... 2,800 280 hours...... One-time.
2009 ...... 2,800 280 hours...... One-time.
Outreach Surveys—15 minutes
2007 ...... 4,500 1,125 ...... One-time.
2008 ...... 4,500 1,125 ...... One-time.
2009 ...... 4,500 1,125 ...... One-time.
Undetermined Focus Groups (Targeted population groups are to be decided)—2 hours
2007 ...... 380 760 hours...... One-time.
2008 ...... 380 760 hours...... One-time.
2009 ...... 380 760 hours...... One-time.
Telephone Survey—7 minutes
2007 ...... 6,400 747 hours...... One-time.
2008 ...... 6,400 747 hours...... One-time.
2009 ...... 6,400 747 hours...... One-time.
VA Regional Office-Based Survey Activities Customer Satisfaction Focus Groups—3 hours
2007 ...... 360 1,080 hours...... One-time.
2008 ...... 360 1,080 hours...... One-time.
2009 ...... 360 1,080 hours...... One-time.
VA Regional Office-Specific Service Improvement Initiatives (Comment Card)—5 minutes
2007 ...... 40,000 3,333 hours...... One-time.
2008 ...... 40,000 3,333 hours...... One-time.
2009 ...... 40,000 3,333 hours...... One-time.
Most customer satisfaction surveys surveys Web site: http:// voluntary and the generic clearance will will be recurring so that VBA can create www.vba.va.gov/surveys/. not be used to collect information ongoing measures of performance and to The areas of concern to VBA and its required to obtain or maintain eligibility determine how well the agency meets customers may change over time, and it for a VA program or benefit. In order to customer service standards. Each is important to have the ability to maximize the voluntary response rates, collection of information will consist of evaluate customer concerns quickly. the information collection will be the minimum amount of information OMB will be requested to grant generic designed to make participation necessary to determine customer needs clearance approval for a 3-year period to convenient, simple, and free of and to evaluate VBA’s performance. conduct customer satisfaction surveys, unnecessary barriers. Baseline data Anyone may view the results of focus groups and to send out comment obtained through these information previously administered surveys on the cards. Participation in the surveys, focus collections will be used to improve internet by going to the following VBA groups, and comment cards will be customer service standards. VBA will
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consult with OMB regarding each Management and Budget (OMB) for each DEPARTMENT OF VETERANS specific information collection during collection of information they conduct AFFAIRS this approval period. or sponsor. This request for comment is [OMB Control No. 2900–0567] Dated: October 19, 2006. being made pursuant to Section By direction of the Secretary. 3506(c)(2)(A) of the PRA. Proposed Information Collection Denise McLamb, With respect to the following Activity: Proposed Collection; Program Analyst, Initiative Coordination collection of information, VBA invites Comment Request Service. comments on: (1) Whether the proposed AGENCY: National Cemetery [FR Doc. E6–18418 Filed 10–31–06; 8:45 am] collection of information is necessary Administration, Department of Veterans BILLING CODE 8320–01–P for the proper performance of VBA’s Affairs. functions, including whether the ACTION: Notice. information will have practical utility; DEPARTMENT OF VETERANS (2) the accuracy of VBA’s estimate of the SUMMARY: The National Cemetery AFFAIRS burden of the proposed collection of Administration (NCA), Department of [OMB Control No. 2900–0465] information; (3) ways to enhance the Veterans Affairs (VA), is announcing an quality, utility, and clarity of the opportunity for public comment on the Proposed Information Collection information to be collected; and (4) proposed collection of certain Activity: Proposed Collection; ways to minimize the burden of the information by the agency. Under the Comment Request collection of information on Paperwork Reduction Act (PRA) of respondents, including through the use 1995, Federal agencies are required to AGENCY: Veterans Benefits publish notice in the Federal Register Administration, Department of Veterans of automated collection techniques or the use of other forms of information concerning each proposed collection of Affairs. information, including each proposed technology. ACTION: Notice. extension of a currently approved Title: Student Verification of collection and allow 60 days for public SUMMARY: The Veterans Benefits Enrollment, VA Form 22–8979. comment in response to the notice. This Administration (VBA), Department of OMB Control Number: 2900–0465. notice solicits comments on information Veterans Affairs (VA), is announcing an needed to request additional certificates, Type of Review: Extension of a opportunity for public comment on the replacements or corrections to a currently approved collection. proposed collection of certain President Memorial Certificate (PMC). information by the agency. Under the Abstract: VA Form 22–8979 contains DATES: Written comments and Paperwork Reduction Act (PRA) of a student’s certification of actual recommendations on the proposed 1995, Federal agencies are required to attendance and verification of the collection of information should be publish notice in the Federal Register student’s continued enrollment in received on or before January 2, 2007. concerning each proposed collection of courses leading to a standard college ADDRESSES: information, including each proposed Submit written comments degree or in non-college degree on the collection of information through extension of a currently approved programs. VA uses the data collected to collection for which approval has www.Regulations.gov; or to Mechelle determine the student’s continued Powell, National Cemetery expired, and allow 60 days for public entitlement to benefits. Students are comment in response to the notice. This Administration (41D1), Department of required to submit verification on a notice solicits comments on information Veterans Affairs, 810 Vermont Avenue, monthly basis to allow for a frequent, needed to determine an individual’s NW., Washington, DC 20420 or e-mail: continued entitlement to VA benefits. periodic release of payment. [email protected]. Please refer to ‘‘OMB Control No. 2900–0567’’ in any DATES: Written comments and Affected Public: Individuals or households. correspondence. During the comment recommendations on the proposed period, comments may be viewed online collection of information should be Estimated Annual Burden: 45,475 through the Federal Docket Management received on or before January 2, 2007. hours. System (FDMS) at www.Regulations.gov. ADDRESSES: Submit written comments Estimated Average Burden per FOR FURTHER INFORMATION CONTACT: on the collection of information through Respondent: 1.3 minutes. Mechelle Powell at (202) 501–1960 or www.Regulations.gov; or to Nancy J. FAX (202) 501–2240. Kessinger, Veterans Benefits Frequency of Response: On occasion. SUPPLEMENTARY INFORMATION: Under the Administration (20M35), Department of Estimated Number of Respondents: PRA of 1995 (Pub. L. 104–13; 44 U.S.C. Veterans Affairs, 810 Vermont Avenue, 429,488. 3501—3521), Federal agencies must NW., Washington, DC 20420 or e-mail: Estimated Number of Responses: obtain approval from the Office of [email protected]. Please refer to 2,114,651. Management and Budget (OMB) for each ‘‘OMB Control No. 2900–0465’’ in any collection of information they conduct correspondence. During the comment Dated: October 19, 2006. or sponsor. This request for comment is period, comments may be viewed online By direction of the Secretary. being made pursuant to Section through the Federal Docket Management Denise McLamb, 3506(c)(2)(A) of the PRA. System (FDMS) at www.Regulations.gov. Program Analyst, Initiative Coordination With respect to the following FOR FURTHER INFORMATION CONTACT: Service. collection of information, NCA invites Nancy J. Kessinger at (202) 273–7079 or [FR Doc. E6–18420 Filed 10–31–06; 8:45 am] comments on: (1) Whether the proposed FAX (202) 275–5947. BILLING CODE 8320–01–P collection of information is necessary SUPPLEMENTARY INFORMATION: Under the for the proper performance of NCA’s PRA of 1995 (Pub. L. 104–13; 44 U.S.C. functions, including whether the 3501–3521), Federal agencies must information will have practical utility; obtain approval from the Office of (2) the accuracy of NCA’s estimate of the
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burden of the proposed collection of certain health care services and benefits appropriateness of billings for such information; (3) ways to enhance the for children of Vietnam veterans. services; and to make decisions during quality, utility, and clarity of the DATES: Written comments and the review and appeal process. information to be collected; and (4) recommendations on the proposed Beneficiaries complete VA Form 10– ways to minimize the burden of the collection of information should be 7959e to claim payment/reimbursement collection of information on received on or before January 2, 2007. of expenses related to spina bifida and respondents, including through the use ADDRESSES: Submit written comments certain covered birth defects. Health of automated collection techniques or on the collection of information through care providers complete standard billing the use of other forms of information www.Regulations.gov: or to Ann Bickoff, forms such as: Uniform Billing-Forms technology. Veterans Health Administration (UB) 92, and HCFA 1500, Medicare Title: President Memorial Certificate (193E1), Department of Veterans Affairs, Health Insurance Claims Form. Without (PMC), VA Form 40–0247. 810 Vermont Avenue, NW., the requested information VA will be OMB Control Number: 2900–0567. Washington, DC 20420 or e-mail unable to determine the correct amount Type of Review: Extension of a [email protected]. Please refer to to reimburse providers for their services currently approved collection. ‘‘OMB Control No. 2900–0578’’ in any or beneficiaries for covered expenses. Abstract: The purpose of the PMC correspondence. During the comment Affected Public: Individuals or insert is to allow next of kin, other period, comments may be viewed online households, Business or other for-profit, relatives and friends to request through the Federal Docket Management and Not for profit institutions. Estimated Total Annual Burden: additional certificates and/or System (FDMS) at www.Regulations.gov. replacement or corrected certificates 3,400 hours. FOR FURTHER INFORMATION CONTACT: Ann upon the receipt of the original PMC. Estimated Average Burden per Bickoff at (202) 273–8310. 1 PMC are automatically issued without a Respondent: 6 ⁄2 minutes. request from the next of kin as part of SUPPLEMENTARY INFORMATION: Under the Frequency of Response: On occasion. processing death benefits claims. PRA of 1995 (Pub. L. 104–13; 44 U.S.C. Estimated Number of Respondents: Affected Public: Individuals or 3501—3521), Federal agencies must 3,600. households. obtain approval from the Office of Estimated Total Annual Responses: Estimated Annual Burden: 8,004. Management and Budget (OMB) for each 31,400. Estimated Average Burden per collection of information they conduct Dated: October 19, 2006. Respondent: 2 minutes. or sponsor. This request for comment is By direction of the Secretary. Frequency of Response: On occasion. being made pursuant to Section Denise McLamb, Estimated Number of Respondents: 3506(c)(2)(A) of the PRA. With respect to the following Program Analyst, Initiative Coordination 240,132. Service. collection of information, VHA invites Dated: October 19, 2006. comments on: (1) Whether the proposed [FR Doc. E6–18427 Filed 10–31–06; 8:45 am] By direction of the Acting Secretary. collection of information is necessary BILLING CODE 8320–01–P Denise McLamb, for the proper performance of VHA’s Initiative Coordination Service. functions, including whether the DEPARTMENT OF VETERANS information will have practical utility; [FR Doc. E6–18424 Filed 10–31–06; 8:45 am] AFFAIRS BILLING CODE 8320–01–P (2) the accuracy of VHA’s estimate of the burden of the proposed collection of Veterans’ Disability Benefits information; (3) ways to enhance the Commission; Notice of Meeting DEPARTMENT OF VETERANS quality, utility, and clarity of the AFFAIRS information to be collected; and (4) The Department of Veterans Affairs (VA) gives notice under Public Law 92– [OMB Control No. 2900–0578] ways to minimize the burden of the collection of information on 463 (Federal Advisory Committee Act) Proposed Information Collection respondents, including through the use that the Veterans’ Disability Benefits Activity: Proposed Collection; of automated collection techniques or Commission has scheduled a meeting Comment Request the use of other forms of information for November 16, 2006, at the Embassy technology. Suites Hotel, 900 10th Street, NW., AGENCY: Veterans Health Titles: Washington, DC. The meeting will begin Administration, Department of Veterans a. Health Care for Certain Children of at 8:30 a.m. and end at 4:15 p.m. The Affairs. Vietnam Veterans—Spina Bifida and meeting is open to the public. ACTION: Notice. Covered Birth Defects—Regulation. The purpose of the Commission is to b. Claim for Miscellaneous Expenses, carry out a study of the benefits under SUMMARY: The Veterans Health VA Form 10–7959e. the laws of the United States that are Administration (VHA) is announcing an OMB Control Number: 2900–0578. provided to compensate and assist opportunity for public comment on the Type of Review: Extension of a veterans and their survivors for proposed collection of certain currently approved collection. disabilities and deaths attributable to information by the agency. Under the Abstract: VA’s medical regulations 38 military service. Paperwork Reduction Act (PRA) of CFR part 17 (17.900 through 17.905) The agenda for the meeting will 1995, Federal agencies are required to established regulations regarding include updates on the progress of the publish notice in the Federal Register provision of health care for women studies being conducted by the Center concerning each proposed collection of Vietnam veterans’ children born with for Naval Analyses (CNA) and the information, including each proposed spina bifida and certain other covered Institute of Medicine (IOM). The extension of a currently approved birth defects. The information collected Commission will receive initial collection, and allow 60 days for public will be used to determine whether to presentations on several draft Issue comment in response to the notice. This approve requests for preauthorization of Papers. The Commission will also notice solicits comments on information certain health care services and benefits review and approve an Issue Paper needed to request preauthorization of for children of Vietnam veterans; the outlining the Commission’s position to
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recommend lump sum payments be number of participants. Interested Avenue, NW., 5th Floor, Washington, removed from consideration as an parties may also provide written DC 20004. option for compensating veterans with comments for review by the Dated: October 25, 2006. disabilities. Commission prior to the meeting or at By Direction of the Secretary. Interested persons may attend and any time, by e-mail to present oral statements to the [email protected] or by E. Philip Riggin, Commission, November 16. Oral mail to Mr. Ray Wilburn, Executive Committee Management Officer. presentations will be limited to five Director, Veterans’ Disability Benefits [FR Doc. 06–8983 Filed 10–31–06; 8:45 am] minutes or less, depending on the Commission, 1101 Pennsylvania BILLING CODE 8320–01–M
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Part II
Department of Energy Federal Energy Regulatory Commission
18 CFR Part 292 New PURPA Section 210(m) Regulations Applicable to Small Power Production and Cogeneration Facilities; Final Rule
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DEPARTMENT OF ENERGY purchase electric energy from qualifying organization/independent system cogeneration facilities and qualifying operator (RTO/ISO) regions should lose Federal Energy Regulatory small power production facilities (QFs) the right to require electric utilities to Commission if the Federal Energy Regulatory purchase their electric output. At the Commission (Commission) finds that other extreme are those who argue that 18 CFR Part 292 the QF has nondiscriminatory access to the Commission, with limited one of three categories of markets exceptions, should eliminate the [Docket No. RM06–10–000; Order No. 688] defined in section 210(m)(1)(A), (B) or mandatory purchase requirement New PURPA Section 210(m) (C). Thus, to relieve an electric utility of altogether. Regulations Applicable to Small Power its mandatory purchase obligation under 4. We do not believe that either Production and Cogeneration Facilities PURPA, the Commission must identify extreme reflects the letter or the spirit of which, if any, markets meet the criteria section 210(m). The QFs who advocate Issued October 20, 2006. contained in 210(m)(1)(A), (B) or (C), that we may not or should not act at all AGENCY: Federal Energy Regulatory and, if such markets are identified, it by rulemaking fail to recognize that the Commission, DOE. must determine whether QFs have Commission has broad latitude to act by ACTION: Final rule. nondiscriminatory access to those either rulemaking or adjudication. markets. Nowhere does section 210(m) preclude SUMMARY: The Federal Energy 2. On January 19, 2006, the the Commission from acting by Regulatory Commission (Commission) is Commission issued a notice of proposed rulemaking. Moreover, where, as here, amending its regulations governing rulemaking (NOPR) proposing recurring and common issues of fact small power production and regulations to implement the provisions arise, acting by rulemaking is not only cogeneration in response to section 1253 of the new PURPA section 210(m) and permissible, but provides more effective of the Energy Policy Act of 2005 (EPAct proposing to terminate the requirement notice to and opportunity for 2005), which added section 210(m) to that an electric utility enter into a new participation by all affected parties. To the Public Utility Regulatory Policies contract or obligation to purchase some extent, generic findings about Act of 1978 (PURPA). electric energy from QFs if the electric markets are inevitable, either by DATES: Effective Date: The rule will utility is a member of Midwest rulemaking or in the first utility specific become effective January 2, 2007. Independent Transmission System filing concerning a specific market. Operator, Inc. (Midwest ISO), PJM Making generic findings by rulemaking FOR FURTHER INFORMATION CONTACT: Interconnection, L.L.C. (PJM), ISO New provides affected entities, including Deborah Wyrick (Technical England, Inc. (ISO–NE), or New York QFs, a better opportunity to participate Information), Office of Energy Markets Independent System Operator (NYISO). in the generic proceeding as well as the and Reliability, Federal Energy After considering industry comments on individual proceedings that will follow. Regulatory Commission, 888 First the NOPR, the Commission issues this Finally, the substantive arguments of Street, NE., Washington, DC 20426, Final Rule amending the Commission’s these entities that underlie their (202) 502–6113. Marka Shaw (Technical regulations to implement the procedural objections fail to recognize Information), Office of Energy Markets requirements in section 210(m). We that Congress, in enacting section and Reliability, Federal Energy believe the regulations adopted in the 210(m), explicitly recognized three Regulatory Commission, 888 First Final Rule reflect Congress’s intent to different market structures and required Street, NE., Washington, DC 20426, differentiate between three types of the Commission to respect the (202) 502–8641. Samuel Higginbottom market structures, each of which differences in those markets when (Legal Information), Office of the presents differing factors relevant to our making determinations as to whether to General Counsel, Federal Energy determination of whether QFs have rescind the purchase obligation. In Regulatory Commission, 888 First access to a sufficiently competitive essence, they are rearguing the very Street, NE., Washington, DC 20426, market to support elimination of the debates that Congress settled in (202) 502–8561. Eric Winterbauer (Legal purchase requirement. Our Final Rule adopting section 210(m). Information), Office of the General also recognizes the special 5. We also do not agree with the Counsel, Federal Energy Regulatory circumstances faced by small QFs and, position of utilities that advocate we Commission, 888 First Street, NE., accordingly, applies a different test for should terminate the purchase Washington, DC 20426, (202) 502–8329. this class of QFs. In addition to a obligation in summary fashion in this SUPLEMENTARY INFORMATION: presumption in favor of small QFs, the rulemaking. Although our action today Before Commissioners: Joseph T. rule also recognizes that some QFs, respects the choice of Congress in Kelliher, Chairman; Suedeen G. Kelly, irrespective of size, may not have the establishing different tests for different Marc Spitzer, Philip D. Moeller, and Jon ability to sell in certain markets because market structures, we do not, in this Wellinghoff. of operational characteristics or other rulemaking, terminate the purchase obligation of any utility. In this respect, I. Introduction constraints. 3. The Commission received extensive we modify our approach in the NOPR. 1. On August 8, 2005, the Energy comments on its NOPR.3 At one extreme In contrast to the NOPR, in this Final 1 Policy Act of 2005 (EPAct 2005) was are commenters who argue that the Rule we establish only rebuttable signed into law. Section 1253(a) of Commission may not address the presumptions that the purchase EPAct 2005 adds section 210(m) to the mandatory purchase requirement issues obligation should be eliminated with Public Utility Regulatory Policies Act of by rulemaking and that competitive respect to certain QFs, not final 2 1978 (PURPA) which provides, among capacity and energy markets do not yet determinations. 6. In sum, this Final Rule other things, for termination of the exist to support a generic finding that appropriately reflects Congressional requirement that an electric utility enter QFs in the four regional transmission into a new contract or obligation to intent in enacting section 210(m). It 3 Attached as Appendix A is a list of all does not, as some commenters suggest, 1 Pub. L. 109–58, 1253, 119 Stat. 594 (2005). commenters and the abbreviations that are used ignore the fact that Congress did not 2 16 U.S.C. 824a–3 (2000). throughout the order to refer to the commenters. repeal PURPA section 210(a)’s directive
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that the Commission prescribe, and energy from a QF, upon a showing that as markets described in subparagraphs (A) from time to time revise, such rules as the conditions for terminating the and (B). it determines necessary to encourage requirement are no longer met; and We interpret section 210(m)(1) to cogeneration and small power D. Provides for the termination of the require the Commission to eliminate the production. Rather, it recognizes the requirement that an electric utility enter purchase obligation in markets which fundamental change which Congress into new contracts to sell electric energy meet the criteria of section 210(m)(1)(A), made to the statutory construct when it to QFs, after appropriate findings by the (B) or (C) if QFs have nondiscriminatory determined that ‘‘no electric utility shall Commission. access to such markets. These three be required * * * to purchase electric The Commission is amending its Part wholesale markets are characterized in energy from’’ a QF if certain findings are 292 regulations to address the above this rule in short-hand terms as ‘‘Day 2’’ made with respect to various markets. section 210(m) provisions and also to markets (auction based day-ahead and Our action properly implements provide a process for applying for the real-time markets), ‘‘Day 1’’ markets Congressional intent in the new section reinstatement of the requirement to sell (auction based real-time markets but not 210(m) that the three different market electric energy to QFs upon a showing auction based day-ahead markets), and structures present different that the conditions for the removal of comparable markets, respectively.5 The considerations in determining whether that requirement are no longer met. Final Rule finds that the Midwest ISO, to relieve utilities of the purchase PJM, ISO–NE, and NYISO all meet the obligation. Our action also properly A. Termination of the Mandatory criteria of section 210(m)(1)(A). These recognizes that smaller QFs can face Purchase Requirement That an Electric RTOs are independently administered more significant challenges than larger Utility Enter Into a New Contract or and offer auction-based day ahead and QFs in accessing competitive wholesale Obligation To Purchase Electric Energy real time wholesale markets for the sale markets. Our action continues to From QFs of electric energy; and within the support QF development by ensuring regions represented by these RTOs there that, where the requirements of section 8. This Final Rule promulgates is nondiscriminatory access to 210(m) are met, QF development will, regulations that set forth the process by wholesale markets for long-term sales of as determined by Congress, be which electric utilities may apply to be capacity and electric energy. Therefore, stimulated by market forces, and that relieved of the requirement that they except for the rebuttable presumptions where those requirements have not been enter into new contracts or obligations met, QF development will continue to for the purchase of electric energy from set forth below, the member electric be stimulated as it is today through the QFs after August 8, 2005. New § 292.309 utilities of these four RTO/ISOs will be mandatory purchase obligation. Finally, of the Commission’s regulations eligible for relief from the requirement nothing in this Final Rule affects any describes the findings that the to enter into new contracts for the electric utility’s resource adequacy Commission must make to justify purchase of QF electric energy. obligations, compliance with the relieving an electric utility’s obligation 9. The Final Rule creates three Electric Reliability Organization’s to enter into new QF purchase contracts. rebuttable presumptions: reliability standards, prudent utility If the Commission finds that the QF has (A) For all three of the above markets, practice to build or purchase reliable nondiscriminatory access to one of three with the exception of the 20 megawatt power at the most economical price, or wholesale markets described in the (MW) presumption discussed next, the resource portfolio obligations under statute, the requirement that the electric Final Rule finds that the existence of an state law including obligations to utility enter into new contracts or open access transmission tariff (OATT), purchase renewable energy. obligations is terminated. These three or a reciprocity tariff filed by a non- wholesale markets, set forth in the jurisdictional utility, pursuant to the II. Executive Summary statute in section 210(m)(1), and Commission’s open access regulations,6 7. This Final Rule amends the incorporated in the new Commission creates a rebuttable presumption, under Commission’s regulations in part 292 4 regulations at § 292.309, are: section 210(m)(1), that QFs have (pertaining to electric utilities’ (A)(i) Independently administered, ‘‘nondiscriminatory access to’’ the requirement to purchase electric energy auction-based day ahead and real time relevant wholesale markets.7 from or sell electric energy to a QF) to wholesale markets for the sale of electric (B) For all three of the above markets, implement section 1253 of the EPAct energy; and (ii) wholesale markets for long- the Final Rule establishes a rebuttable 2005. As relevant here, section 1253 term sales of capacity and electric energy; or presumption that QFs with a net added a new section 210(m) to PURPA, (B)(i) Transmission and interconnection capacity no greater than 20 MW, do not which: services that are provided by a Commission- have nondiscriminatory access to A. Provides for the termination of the approved regional transmission entity and administered pursuant to an open access requirement that an electric utility enter 5 Reference to ‘‘Day 2’’ and ‘‘Day 1’’ and the into new contracts or obligations to transmission tariff that affords nondiscriminatory treatment to all corresponding parenthetical are meant to be purchase electric energy from a QF, after customers; and (ii) competitive wholesale descriptive and thus are not a recitation of the elements of section 210(m)(1)(A) or (B). appropriate findings by the markets that provide a meaningful Commission; 6 18 CFR 35.28(e). An OATT provides opportunity to sell capacity, including long- interconnection as well as transmission services on B. Preserves existing contracts and term and short-term sales, and electric a nondiscriminatory basis. obligations to purchase electric energy energy, including long-term, short-term and 7 To the extent that a QF raises issues about the or capacity from or to sell electric real-time sales, to buyers other than the adequacy of an electric utility’s implementation of energy or capacity to a QF; utility to which the qualifying facility is an OATT, such issues are more properly addressed C. Provides for the reinstatement of interconnected. In determining whether a in a complaint proceeding and will not be the requirement to purchase electric meaningful opportunity to sell exists, the considered in the context of petitions for the Commission shall consider, among other termination of mandatory purchase requirements. factors, evidence of transactions within the However, a QF may raise other issues, such as 4 18 CFR part 292, subpart C, Arrangements operational characteristics and transmission Between Electric Utilities and Qualifying relevant market; or limitations, to attempt to rebut the presumption of Cogeneration and Small Power Production (C) Wholesale markets for the sale of market access when it files a response to an Facilities Under section 210 of the Public Utility capacity and electric energy that are, at a application submitted pursuant to section 210(m)(3) Regulatory Policies Act of 1978. minimum, of comparable competitive quality of PURPA and section 292.310 of our regulations.
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wholesale markets.8 Unless an electric are Commission-approved regional removal of the requirement to purchase utility seeking the right to terminate its transmission entities that provide are no longer met. After notice, requirement to purchase small QF transmission and interconnection including notice to the affected utilities, power specifically rebuts this small QF services pursuant to open access and comment, the Commission will presumption, and that electric utility’s transmission tariffs that provide issue an order within 90 days of the request is granted by the Commission, a nondiscriminatory treatment to all application. This process is set forth in small QF would be eligible to require customers. A member electric utility of the new § 292.311 of the Commission’s the electric utility to purchase its the CAISO or SPP may rely on this regulations. A QF’s request may be electric energy. finding in its application to be relieved specific (and limited) to itself alone, (C) The Final Rule finds that the four of the obligation to enter into new generic for the entire service territory of RTO/ISOs with ‘‘Day 2’’ markets, i.e., contracts to purchase QF electric an electric utility, or regional in scope. the Midwest ISO, PJM, ISO–NE, and energy, but must make all the other The Commission will address the merits NYISO, qualify as markets under section showings required under section of each request as warranted by the 210(m)(1)(A) and establishes a 210(m)(1)(B) before its request may be circumstances presented in each case. rebuttable presumption that these granted. organizations provide large QFs (above 12. The Final Rule finds that ERCOT D. Termination of the Requirement To 20 MWs net capacity) interconnected meets the criteria of section Sell Electric Energy to QFs with member electric utilities with 210(m)(1)(C). ERCOT offers wholesale 16. The Final Rule provides for nondiscriminatory access to the ‘‘Day 2’’ markets for the sale of capacity and applications to remove the requirement wholesale markets set forth in section electric energy that are of comparable to enter into new contracts to sell 210(m)(1)(A). An electric utility member competitive quality as the markets electric energy to QFs. The statute of one of these four RTO filing for relief described in sections 210(m)(1)(A) and provides that if the Commission finds from the requirement to purchase will (C). Therefore, except for the rebuttable that competing retail electric suppliers need to refer to this rebuttable presumptions set forth herein, the are willing and able to sell and deliver presumption in the Final Rule as part of member electric utilities of ERCOT will electric energy to a QF, and the electric its application. When it files an be eligible for relief from the utility is not required by state law to sell application for relief from the purchase requirement to enter into new contracts electric energy in its service territory, requirement it must also submit certain for the purchase of QF electric energy. the requirement to sell should be information, including information 13. New § 292.310 of the terminated. The new § 292.312 of the about transmission constraints within Commission’s regulations sets forth the Commission’s regulations describes this its service territory, in order to give filing requirements for an application by process. The Final Rule makes no potentially affected QFs information an electric utility seeking to terminate findings or presumptions with respect that may be useful in rebutting the its requirement to enter into new to an electric utility’s obligation to sell presumption that they have access to all purchase contracts with QFs. Among electric energy to QFs. aspects of the applicable ‘‘Day 2’’ other things, the regulations require the 9 E. Reinstatement of the Requirement To markets. A QF above 20 MWs net electric utility to list the names and Sell Electric Energy to QFs capacity may rebut the presumption of addresses of all potentially affected QFs, nondiscriminatory access by showing existing or under development. After 17. Finally, the Final Rule provides that it in fact lacks access. notice and comment, the Commission for applications to reinstate the 10. The rule does not find that any will issue an order making a final requirement of an electric utility to sell markets meet the statutory criteria at determination within 90 days of the electric energy to QFs, by showing that this time other than the four listed RTO/ application, as required by section the conditions necessary for the removal ISOs (Midwest ISO, PJM, ISO–NE, and 210(m)(3). of the requirement to sell are no longer NYISO) and the Electric Reliability met. After notice and comment, the Council of Texas (ERCOT) (discussed B. Preservation of Existing Contracts Commission will issue an order within below). There will be a rebuttable 14. The Final Rule preserves the 90 days if the required showing is made. presumption that QFs above 20 MWs rights or remedies of any party under Applications for reinstatement are net capacity have nondiscriminatory existing contracts or obligations, in addressed in the new § 292.313 of the access to these markets if they are effect or pending approval before the Commission’s regulations. eligible for service under a Commission- appropriate state regulatory authority or F. Recovery of Prudently Incurred Costs approved OATT or Commission-filed non-regulated electric utility on or Relating to QF Power Purchases reciprocity tariff. before August 8, 2005, to purchase 11. With respect to the California electric energy from or to sell electric 18. The Final Rule does not adopt Independent System Operator (CAISO), energy to a QF. This provision is stated new regulations implementing section 210(m)(7), regarding an electric utility’s and the Southwest Power Pool (SPP), in the new § 292.314 of the recovery of prudently incurred costs which have only ‘‘Day 1’’ markets, it Commission’s regulations. The Final relating to purchases of electricity from would be premature to find now that the Rule defines the term ‘‘obligations’’ QFs. CAISO and SPP would meet the criteria broadly to encompass any legally of section 210(m)(1)(A) once their enforceable obligation established III. Background ongoing market redesigns become through a state’s implementation of A. History of Section 210 of PURPA effective. However, we find that: the PURPA. CAISO and SPP meet the section 19. When Congress enacted section 210(m)(1)(B)(i) criterion because they C. Reinstatement of the Mandatory 210 of PURPA, it required the Purchase Requirement Commission to prescribe such rules as 8 Herein referred to as small QFs. 15. The Final Rule also sets forth a the Commission determined necessary 9 The electric utility would have to make process by which a QF may seek the to encourage cogeneration and small additional showings if it wished to rebut the presumption that small QFs do not have reinstatement of the requirement to power production, including rules nondiscriminatory access to its region’s ‘‘Day 2’’ purchase electric energy, by showing requiring electric utilities to offer to wholesale markets. that the conditions necessary for the purchase electric energy from and sell
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electric energy to QFs. Additionally, utility’s ‘‘avoided costs’’). Section 210 requirement of an electric utility to section 210 of PURPA authorized the also requires electric utilities to provide enter into a new contract or obligation Commission to exempt QFs from certain electric energy to QFs at rates which are with the QF if it finds that a QF has federal and state laws and regulations if just and reasonable, in the public nondiscriminatory access to a market necessary to encourage cogeneration interest, and which do not discriminate described in section 210(m)(1)(A), (B) or and small power production. against cogenerators and small power (C). Section 210(m)(2) states that after 20. A cogeneration facility is defined producers. Rates for the purchase of the date of enactment, no utility will be in the Federal Power Act (FPA) 10 as a energy from and the sale of energy to a required to enter into a contract to facility which produces electric energy QF are set by the appropriate state purchase from or sell to a new and steam or forms of useful energy regulatory authority or non-regulated cogeneration facility, unless the facility (such as heat) which are used for utility pursuant to the Commission’s meets the criteria for new cogeneration industrial, commercial, heating, or regulations, 18 CFR 292.301–308 (2006). facilities established by the Commission cooling purposes.11 Thus, cogeneration 24. Since Congress enacted PURPA, in implementing section 210(n) of facilities simultaneously produce two electric utilities have complained that PURPA. Section 210(m)(3) provides that forms of useful energy, namely electric their requirement to purchase from and an electric utility may file ‘‘an energy and heat. Cogeneration facilities sell to QFs, as implemented by the application for relief from the can use significantly less fuel to Commission in 18 CFR 292.303(a)–(b), mandatory purchase obligation’’ on a produce electric energy and steam (or was not economically beneficial and service territory-wide basis and other forms of energy) than would be that they were purchasing energy they provides that the Commission must needed to produce the two separately. did not need and selling energy they did make a final determination on such an 21. Small power production facilities, not want to sell. In 1995, the application within 90 days of the as defined in the FPA, use biomass, Commission clarified that application. Section 210(m)(4) provides waste, or renewable resources, determinations of the avoided-cost rate that a QF, a state agency, or other including wind, solar energy and water, must take into account all alternative affected person may apply for an order to produce electric energy and have a sources including third-party suppliers reinstating the electric utility’s power production capacity which, and an electric utility does not pay for ‘‘obligation to purchase electric energy together with any other facilities located electric energy it does not need.13 In the under this section’’ upon a change in at the same site, is not greater than 80 past decade, with the development of the market. Section 210(m)(5) provides megawatts.12 Reliance on these sources exempt wholesale generators (EWGs) for the termination of the requirement of energy can reduce the need to introduced by the Energy Policy Act of that an electric utility enter into a new consume fossil fuels to generate electric 1992,14 the implementation of open contract or obligation to sell electric power. access transmission via Order No. 888, energy to a QF upon a finding that 22. Prior to the enactment of PURPA, the advent of ISOs and RTOs and specified competitive conditions exist. a cogenerator or small power producer organized markets, the Commission’s Section 210(m)(6) provides that nothing seeking to establish interconnected new interconnection requirements, and in section 210(m) affects the rights or operation with a utility faced three increasing competition in wholesale remedies of any party under any major obstacles. First, utilities were not electric markets as well as some retail contract or obligation in effect or generally willing to purchase this electric markets, Congress has debated pending approval before the appropriate electric output or were not willing to whether to repeal PURPA altogether, or state regulatory authority or pay an appropriate rate for that output. to revise it. The result is new section nonregulated utility on the date of Second, utilities generally charged 210(m), which is the subject of this enactment of section 210(m). And discriminatorily high rates for back-up rulemaking, and new section 210(n), finally, section 210(m)(7) provides that service to cogenerators and small power which was addressed in Docket No. the Commission shall issue and enforce producers. Third, a cogenerator or small RM05–36–000.15 such regulations as are necessary to power producer which provided electric ensure that an electric utility that energy to a utility’s grid ran the risk of B. New Section 210(m) purchases electric energy or capacity being considered a public utility and 25. Section 210(m) of PURPA is titled from a QF in accordance with a legally thus being subjected to extensive state ‘‘Termination of Mandatory Purchase enforceable obligation entered into or and federal regulation. and Sale Requirements.’’ The section imposed under section 210 of PURPA 23. Section 210 of PURPA was revises the rights and obligations recovers all prudently incurred costs designed to remove these obstacles. between electric utilities and QFs. associated with the purchase. Each electric utility is required under Section 210(m)(1) requires the C. NOPR section 210 to offer to purchase Commission to terminate the available electric energy from 26. On January 19, 2006, the cogeneration and small power 13 Southern California Edison Company and San Commission issued a NOPR containing production facilities which obtain Diego Gas & Electric Company, 70 FERC ¶ 61,215 its proposal to implement section at 61,677–78, reconsideration denied, 71 FERC 210(m) of PURPA. Generally, the qualifying status. The rates for such ¶ 61,269 at 62,078 (1995) (finding that the purchases from QFs must be just and determination of avoided cost must take into Commission proposed to incorporate reasonable to the ratepayers of the account ‘‘all sources’’). the language of section 210(m) in its utility, in the public interest, and must 14 Energy Policy Act of 1992, Pub. L. No. 102–486, regulations. While section 210(m) not discriminate against cogenerators or 106 Stat. 2776, (1993) (EPAct 1992). EPAct 1992 permits electric utilities to file added a new section 32 to the Public Utility applications for relief from the small power producers. Rates also must Holding Company Act of 1935 (PUHCA) to permit not exceed the incremental cost to the a category of sellers called EWGs to be exempt from mandatory purchase requirement, and electric utility of alternative electric PUHCA. requires the Commission to act on such energy (also known as the electric 15 Revised Regulations Governing Small Power applications within 90 days, the Production and Cogeneration Facilities, Order No. Commission determined in the NOPR 671, 71 FR 7852 (Feb. 15, 2006), FERC Stats. & Regs. 10 16 U.S.C. 824 et seq. ¶ 31,203 (2006), order on reh’g, Order No. 671–A, that it is appropriate to act generically 11 Id. 796(18). 71 FR 30585 (May 30, 2006), FERC Stats. & Regs. as much as possible. Specifically, 12 Id. 796(17)(A)(i)–(ii). ¶ 31,219 (2006). section 210(m)(1)(A) is most suitable for
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such a generic implementation and the party should be allowed to rebut that clarifications to the approach in the Commission proposed to make generic presumption, for example, by providing NOPR. findings that certain markets meet the specific and credible evidence that the IV. Discussion section 210(m)(1)(A) criteria. The NOPR QF does not have nondiscriminatory concluded that the most reasonable access to wholesale markets.20 The A. Section 210(m)(1) interpretation of section 210(m)(1)(A) is Commission noted that improper 30. The new PURPA section 210(m)(1) that it was crafted to apply to regions in implementation of an OATT is more amends the statutory requirement that which ISOs and RTOs administer properly the subject of a complaint. electric utilities purchase electric energy auction-based day ahead and real time 28. Further, the Commission proposed from QFs and states that: wholesale markets for the sale of electric in the NOPR that other markets, i.e., * * * No electric utility shall be required to energy; and wholesale markets for long- both non-auction-based markets and term sales of capacity and electric enter into a new contract or obligation to non-RTO/ISO markets described in purchase electric energy from a qualifying energy are that these are available to section 210(m)(1)(B) and (C), would not cogeneration facility or a qualifying small 16 participants/QFs in these markets. be addressed generically in this power production facility under this section The Commission proposed in the NOPR rulemaking but would be addressed on if the Commission finds that the qualifying that it would make a generic finding a case-by-case basis in response to cogeneration facility or qualifying small power production facility has that the Midwest ISO, PJM, ISO–NE, applications filed pursuant to the and NYISO provide markets that meet nondiscriminatory access to— Commission’s implementation of (A)(i) Independently administered, auction- the requirements of section 210(m)(1)(A) section 210(m)(3) of PURPA, i.e., and therefore utilities that are members based day ahead and real time wholesale pursuant to the proposed § 292.310 of markets for the sale of electric energy; and (ii) of those ISOs or RTOs meet the criteria the Commission’s regulations.21 The wholesale markets for long-term sales of for relieving those electric utilities of Commission proposed that subsequent capacity and electric energy; or the requirement to enter into new (B)(i) Transmission and interconnection 17 changes to market conditions in all contracts or obligations with QFs. markets, i.e., markets described services that are provided by a Commission- approved regional transmission entity and Because the Commission proposed to subparagraphs (A), (B) and (C) also make a generic finding with respect to administered pursuant to an open access would be handled on a case-by-case transmission tariff that affords 210(m)(1)(A), the Commission proposed basis as well. Applications for that the electric utilities that are nondiscriminatory treatment to all termination of the requirement to enter customers; and (ii) competitive wholesale members of these four RTO/ISOs submit into new contracts or obligations to markets that provide a meaningful a compliance filing instead of filing purchase from QFs in markets described opportunity to sell capacity, including long- applications for relief of the purchase in subparagraphs (B) and (C) would be term and short-term sales, and electric requirement pursuant to 210(m)(3). In addressed pursuant to the proposed energy, including long-term, short-term and the compliance filing, the electric utility § 292.310 of the Commission’s real-time sales, to buyers other than the would demonstrate: (1) Membership in utility to which the qualifying facility is regulations. An application to reinstate interconnected. In determining whether a the RTO/ISO; (2) that the Commission the requirement that a utility enter in has made a final finding that the RTO/ meaningful opportunity to sell exists, the the new contracts or obligations to Commission shall consider, among other ISO it is a member of provides purchase from QFs, alleging subsequent factors, evidence of transactions within the nondiscriminatory access to a section changes to market conditions, would be relevant market; or 210(m)(1)(A) market; (3) a list of all addressed pursuant to the proposed (C) Wholesale markets for the sale of capacity potentially affected QFs; and (4) the QFs § 292.311 of the Commission’s and electric energy that are, at a minimum, have the rights to request service under regulations. The Commission noted that of comparable competitive quality as markets 18 described in subparagraphs (A) and (B). the OATT. it must make a finding regarding an 27. The Commission concluded that application for relief of the purchase QFs have nondiscriminatory access to 1. Three Standards for Relief requirement and that the finding must transmission and interconnection if they be made within 90 days of the date of a. NOPR have access to utilities providing service such application. The Commission 31. Section 210(m)(1) defines under under an Order No. 888 OATT (or to stated that it expected an application for what conditions the Commission must utilities providing service under a relief to be fully supported by relieve an electric utility of the Commission-accepted reciprocity tariff) documentation upon which the required obligation to enter into a new contract and interconnection services pursuant finding can be made.22 or obligation to purchase electric energy to the Commission’s interconnection from a QF. Essentially, section rules.19 The Commission also proposed, 29. Of the approximately 2,000 pages 210(m)(1) establishes three different however, that there be a rebuttable of comments the Commission has standards for relief from the purchase presumption that a utility provides received to its NOPR, a large portion of requirement depending on whether: (1) nondiscriminatory access if it has an the comments focused on the standards Electric utilities are members of ‘‘Day 2’’ open access transmission tariff in applicable to utilities within the ‘‘Day RTO/ISOs; (2) electric utilities are compliance with our pro forma OATT 2’’ RTO/ISOs and the procedures for members of ‘‘Day 1’’ RTO/ISOs; and (3) (or a Commission-approved reciprocity utilities within ‘‘Day 2’’ markets to electric utilities are in neither ‘‘Day 2’’ tariff) and that QFs or any other affected claim relief from the purchase requirement. Based on careful nor ‘‘Day 1’’ RTO/ISOs. The NOPR interpreted the language of section 16 NOPR at P 14. consideration of the comments 17 Id. at P 22–28. submitted in response to the NOPR, the 210(m)(1) as to what conditions must 18 Id. at P 40. We note that, since the time Commission adopts a Final Rule that exist for the three types of markets and comments were filed in this proceeding, the makes certain modifications and sought comments. Commission has issued a NOPR proposing 32. The NOPR explained that the first amendments to the OATT. Preventing Undue standard for relief is established in Discrimination and Preference in Transmission 20 Id. at P 31. Service, 71 FR 32636 (2006), FERC Stats. & Regs. 21 Id. at P 29–30. section 210(m)(1)(A) of section ¶ 32,603 (2006). 22 The Commission interprets the 90-day period 210(m)(1), which applies to ‘‘Day 2’’ 19 Id. at P 20. to begin upon receipt of a completed application. markets with wholesale bilateral long-
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term contracts for the sale of capacity quality as markets described in to mandatory purchase is available and electric energy available to subparagraphs (A) and (B). The through a competitive market.’’27 PIOs participants. The Commission indicated Commission explained that although argue that electric utilities have to that, under section 210(m)(1)(A)(ii), this provision is not clear on its face, its demonstrate that QFs do, in fact, have there was no requirement, given the reference to subparagraphs (A) and (B) physical and economic access to all of statutory language, to consider requires the Commission to be mindful, the required markets on a ‘‘evidence of transactions within the in interpreting the provision, of the two nondiscriminatory basis. The American relevant market’’ when determining types of requirements that are embodied Chemistry Council contends that the whether QFs have nondiscriminatory in those sections, i.e., (1) mandatory purchase requirement can be access to ‘‘wholesale markets for long- nondiscriminatory access to terminated only in those situations term sales of capacity and electric transmission and interconnection where wholesale markets have evolved energy.’’ The Commission suggested services, and (2) competitive short-term to ensure the long-term commercial that Congress presumed QFs, which and long-term markets that provide a viability of QFs which enables QFs to have ‘‘nondiscriminatory access to’’ ISO meaningful opportunity to sell to buyers attract investment capital and facilitates and RTO regions with auction-based other than the utility to which the QF QF development; the American day ahead and real time markets, have is interconnected. Chemistry Council urges the nondiscriminatory access to long-term Commission to interpret section b. Comments sales of electric energy and capacity 210(m)(1) in such a manner. wholesale markets outside the 35. ELCON, AWEA, Caithness and 36. NPRA reminds the Commission interconnected utility. The Commission Public Interest Organizations (PIOs),23 that the main purpose of cogeneration is proposed to find that Midwest ISO, PJM, for example, state that Congress did not not to serve the needs of an electric ISO–NE, and NYISO meet the repeal the mandatory purchase power grid or ‘‘market,’’ but, rather, it is requirements of section 210(m)(1)(A). requirement and that the Commission to serve the interconnecting industrial 33. The second standard for relief is has a continuing obligation to promote thermal and electrical load. established in section 210(m)(1)(B), QF development. This, they contend, Consequently, NPRA argues that the which the Commission found to be can only be accomplished by assuring operation of these facilities may require intended to apply in ‘‘Day 1’’ RTO/ISOs, that markets meet criteria that guarantee different market features than are i.e., those that do not have both auction- that QFs will enter into contracts with required by utility electric generation or based day ahead and real time markets. electric utilities of similar quality to merchant generation. NPRA argues that Section 210(m)(1)(B) provides for those that they received prior to the Congress intended to terminate the termination of the requirement that an enactment of section 210(m) of PURPA ‘‘must take’’ requirement only when it electric utility enter into a new contract before the mandatory purchase can be demonstrated that an electric or obligation to purchase electric energy obligation can be terminated. ELCON market supports not only the role of from a QF so long as there is (i) a appears to suggest that there is only one merchant power, but the retention and Commission-approved regional standard for relief from the purchase encouragement of cogeneration. In other transmission entity providing requirement: ‘‘assurance of a words, while a market may prove an nondiscriminatory transmission and competitive market.’’ 24 In essence, efficient and viable alternative for a interconnection services; and (ii) ELCON argues that sections merchant plant, it does not necessarily ‘‘competitive wholesale markets that 210(m)(1)(A), (B) and (C) establish a ensure that it is an efficient and viable provide a meaningful opportunity’’ to single standard for terminating the alternative for sales of power by a sell capacity and energy on both a short- mandatory purchase obligation. ELCON cogeneration facility. and long-term basis and energy on a states that section 210(m) authorizes the c. Commission Determination real-time basis (emphasis added) to Commission to grant relief from the buyers other than the utility to which purchase requirement ‘‘if and only if a 37. We disagree with commenters’ the QF is interconnected. In the NOPR, viable market exists.’’ 25 ELCON interpretation of the statutory standard the Commission stated that ‘‘meaningful expresses its concern that because for relief from the requirement that an opportunity’’ is to be determined by the discrimination continues and the electric utility enter into a new contract Commission after considering, among markets are flawed, competition and on- or obligation to purchase electric energy other factors, ‘‘evidence of transactions site generation will be discouraged. from a QF. There is nothing in section within the relevant market.’’ The AWEA and Caithness state that the 210(m) to suggest that Congress Commission indicated that taken Commission should grant relief from the intended to ensure a QF’s commercial together, the terms ‘‘competitive,’’ purchase requirement only in markets viability. Nor does the statute require ‘‘meaningful opportunity’’ and which are ‘‘sufficiently competitive.’’ 26 the Commission to find that the ‘‘evidence of transactions’’ suggest that EPSA argues that the mandatory ‘‘economic and technical equivalent to Congress intended that termination of purchase requirement can be terminated mandatory purchase is available the purchase requirement in a ‘‘Day 1’’ only where the Commission finds that through a competitive market’’ before it market only if it could be established the ‘‘economic and technical equivalent terminates the requirement that an that QFs had opportunities to make electric utility enter into a new contract long-term and short-term sales of 23 The PIOs filing these comments are the Center or obligation to purchase electric energy capacity and long-term, short-term and for Energy Efficiency & Renewable Technologies, from QFs. Although we certainly agree Delaware Division of the Public Advocate, with the QF commenters that Congress real-time sales of energy into Environmental Law & Policy Center, Interwest competitive wholesale markets. Energy Alliance, Izaak Walton League of America, did not repeal the mandatory purchase 34. The third standard for relief is Natural Resources Defense Council, Northwest requirement in its entirety, Congress established in section 210(m)(1)(C) of Energy Coalition, Office of the Ohio Consumers’ clearly left the Commission with no section 210(m)(1). Under this standard, Counsel, Pace Energy Project, Project for choice but to eliminate the mandatory Sustainable FERC Energy Policy, West Wind Wires, the purchase requirement is removed in and Western Resource Advocates. purchase requirement for utilities wholesale markets for the sale of 24 ELCON Comments at 8. operating in certain markets upon capacity and electric energy that are, ‘‘at 25 Id. a minimum,’’ of comparable competitive 26 AWEA Comments at 2. 27 EPSA Comments at 9.
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certain findings being made. The fact is QF will remain economically viable if requirements of section 210(m)(1) have that the language of section 210(m)(1) the purchase requirement is eliminated. been met. provides that an electric utility shall be This would make the three different 41. In addition, ELCON and the QF relieved of the requirement to purchase statutory standards meaningless. industry state that the Commission has from a QF if the Commission makes recognized that the intent of Order No. certain findings, which findings do not 2. The Nondiscriminatory Access 888 concerning nondiscriminatory include a determination that the Requirement of Section 210(m)(1) and access to transmission has not been ‘‘economic and technical equivalent to the OATT fully realized; first in Order No. 2000 28 mandatory purchase is available a. NOPR and more recently in the NOPR on through a competitive market.’’ This is Preventing Undue Discrimination and not what section 210(m) says, nor would 39. Section 210(m)(1) provides for Preference in Transmission Service.29 it make any sense to infer such an termination of the requirement for an 42. EPSA, Reliant and PIOs add that interpretation. Competitive markets do electric utility to enter into a new any tariff for transmission and not, by definition, impose ‘‘mandatory’’ contract or obligation to purchase from interconnection services must purchase obligations on buyers. Buyers a QF if the QF has ‘‘nondiscriminatory incorporate changes consistent with the choose among differing sellers based on access’’ to a wholesale market described Commission’s pro-competitive policies their relative cost, reliability, etc. The in section 210(m)(1)(A), (B), or (C). In of Order No. 2000 and any further QFs making this argument therefore the NOPR, the Commission proposed improvements determined as part of the ignore the relevant statutory language that there be a rebuttable presumption notice of inquiry (NOI). EPSA argues and, in doing so, reargue the debate that a utility provides that only then will the transmission and before Congress when it enacted section nondiscriminatory access if it has an interconnection services be provided on 210(m). Order No. 888 OATT (or a utility a nondiscriminatory, pro-competitive providing service under a Commission- basis. 38. The most reasonable 43. Dow Chemical Company (Dow) interpretation of section 210(m)(1) is approved reciprocity tariff). The Commission stated that QFs or any states that there are numerous instances that Congress, in setting forth discrete in which QFs effectively have no access tests for three different types of markets, other party should be allowed to rebut that presumption, but that improper to organized markets or to transmission was requiring the Commission to services regardless of whether the differentiate among these markets, and implementation of an OATT is more properly the subject of a complaint to utilities to which they are the differing circumstances they interconnected technically participate present, in determining whether a ensure that the OATT is properly implemented. in organized markets or provide utility must be relieved of the transmission and interconnection mandatory purchase obligation. b. Comments services on an open access basis. Dow Although the statute is ambiguous in states that instead, in such instances, certain respects, it clearly reflects 40. ELCON and virtually every other the only entity physically capable of Congressional intent that the commenter from the QF industry argue acquiring QF output is the utility with Commission differentiate among these that the Commission erred in the NOPR which the QF is interconnected. three markets in making its by proposing a rebuttable presumption American Forest & Paper states that determination regarding whether to that a utility provides market rules designed for merchant terminate the purchase obligation. This ‘‘nondiscriminatory access’’ to the generation are often highly approach not only reflects a natural market conditions identified in section discriminatory to QFs which, because of reading of the words of the statute, it 210(m)(1)(A), (B), or (C) if it has an the thermal needs of a cogeneration also is reasonable given the nature of the OATT in compliance with the QF’s thermal host, have limited determination being made. There is Commission’s pro forma OATT, or a dispatchability and must often be little debate in this proceeding that Day Commission-approved reciprocity tariff. operated in base load configurations. 2 organized markets, as a general matter, They argue that the proposal reflects an American Forest & Paper states that provide greater opportunities for QFs overly simplified interpretation of the market rules designed around the (and other independent generators) to statute’s ‘‘nondiscriminatory access’’ dispatchability of resources which do compete than unorganized markets requirement and that the mere existence not have attendant manufacturing because of the existence of day-ahead of transmission rights under an OATT facility obligations may discriminate and real-time energy markets that allow does not necessarily ensure that QFs unnecessarily and unreasonably against all competing generators to submit bids have nondiscriminatory access to QFs. Council of Industrial Boiler to participate in the market on a markets. ELCON and the QF industry Owners (CIBO) state that by finding that nondiscriminatory basis. Although other argue that barriers that discriminate an OATT is sufficient to ensure markets—including ‘‘Day 1’’ markets against QFs could exist notwithstanding nondiscriminatory access to markets, and non-organized markets—also the adoption of an OATT. The the Commission fails to consider the provide opportunities for independent California Cogeneration Council (CCC), operational differences faced by QFs. generators to compete, it is not for instance, states that these barriers 44. In addition, Commenters argue surprising that Congress would find could be present in ISO policies that that the NOPR’s proposal that there be that, as a general matter, they have less make it more difficult or burdensome a rebuttable presumption that a utility formalized structures for doing so and, for QFs to participate in a market as provides nondiscriminatory access if it hence, utilities seeking relief from the compared with other types of generators purchase obligation in those markets or market participants. ELCON and the 28 Regional Transmission Organizations, Order would bear a heavier evidentiary burden QF industry argue that section 210(m)(1) No. 2000, 65 FR 809 (Jan. 6, 2000), FERC Stats. & to obtain relief. The Commission requires the Commission to consider Regs. P 31,089 (1999), order on reh’g, Order No. cannot, as some commenters in effect such potential barriers, and to evaluate 2000–A, 65 FR. 12,088 (Mar. 8, 2000), FERC Stats. & Regs. P 31,092 (2000), aff’d sub nom. Pub. Util. ask us to do, simply collapse the three whether QFs truly have Dist. No. 1 of Snohomish County, Washington v. discrete tests into one test that requires nondiscriminatory access to alternative FERC, 272_F.3d_607 (D.C. Cir. 2001). an electric utility to demonstrate that a markets, before concluding that the 29 See supra note 15.
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has an OATT is in essence an nondiscriminatory access to the grid. Commission’s only authority is to reject irrebuttable presumption. ELCON and PJM states that rather, the Commission an application for termination of the the American Chemistry Council state should analyze particular facts and mandatory purchase requirement. that although the Commission circumstances relative to concerns 51. EEI argues against the QFs’ claim characterizes the presumption as raised with potential access to the that the Commission has made the ‘‘rebuttable,’’ it also states that the marketplace for QFs. presumption of nondiscriminatory presumption ‘‘cannot be rebutted by an 48. EEI, Allegheny Power, Alliant, access under an OATT essentially argument that the utility has not Entergy, National Grid and PSNM/TNP irrebuttable. It states that as the NOPR properly implemented or administered agree with the NOPR’s proposal. EEI provides, QFs or any other party will be its OATT.’’ states that QF commenters raise no afforded the opportunity to provide 45. ELCON argues that it will be compelling evidence that access ‘‘specific and credible evidence that the difficult for the Commission to sustain provided pursuant to Commission- QF does not have nondiscriminatory on judicial review an irrebuttable approved OATTs is deficient. EEI states access to wholesale markets.’’ presumption that the OATT provides that nondiscriminatory access is the nondiscriminatory transmission access standard set by Congress in EPAct 2005, c. Commission Determination for all QFs when its own NOI recognizes and Congress was fully aware when it 52. Under section 210(m)(1), the the continuation of patterns of abuse— used this standard that the OATT is the Commission must find that the QF has if anything exacerbated as transmission mechanism for achieving ‘‘nondiscriminatory access’’ to the owners feel the pressure of competition nondiscriminatory access. Allegheny wholesale markets described in section from independent generation. ELCON joins EEI in stating that the Commission 210(m)(1)(A), (B), or (C) in order to states that the concern over potential should make a generic finding that QF terminate the requirement that an discrimination will only be exacerbated access pursuant to a Commission- electric utility enter into a new contract in a scenario like the Entergy approved OATT meets the or obligation to purchase electric energy Independent Coordinator of ‘‘nondiscriminatory access’’ test of from a QF. The Commission proposed Transmission (ICT) where the utility section 210(m) for all markets, whether in the NOPR that there be a rebuttable and not the RTO provide service. centrally organized and administered or presumption that a utility provides the ELCON states that while the problem of not. nondiscriminatory access required in discrimination in transmission is 49. EEI states that the fact that the section 210(m)(1) if it has an open pervasive, a fortiori, QFs of whatever Commission is considering updating access transmission tariff in compliance size connected at distribution voltage do Order No. 888 through its ongoing NOI with our pro forma OATT (or a not have access to markets. ELCON does not mean that reliance on the Commission-approved reciprocity states that the scenario of QFs OATT as the current benchmark for tariff). However, the Commission also connected at distribution voltage and nondiscriminatory access is proposed that QFs or any other affected the circumstances of small QFs inappropriate. EEI states that at this party should be allowed to rebut that illustrate why generic conclusions are preliminary stage of the Commission’s presumption, for example, by providing inappropriate. inquiry into whether changes to the specific and credible evidence that the 46. Further, Occidental Chemical OATT should be required, it is QF does not have nondiscriminatory Corporation (Occidental) argues that the premature to predict what the access to wholesale markets. Commission’s conclusion that a Commission may or may not finally 53. The Commission reaffirms the complaint, rather than the application conclude with respect to the OATT. EEI determination in the NOPR that only proceeding, is the only vehicle available states that by basing so much of their issues not related to the provision of to address a QF’s concern that the argument on the Commission’s open access transmission under the OATT is being administered or consideration of reforms to Order No. OATT may be raised to rebut the implemented in a discriminatory 888, QF commenters are in essence nondiscriminatory access presumption. manner is inconsistent with the plain converting a Commission NOI into a We disagree with arguments of ELCON language of the statute. Occidental states Commission final rule. EEI states that and Occidental that a QF should be able that a QF cannot provide meaningful even if the Commission fine tunes the to litigate open access implementation comments on whether an electric OATT, it would not mean that existing issues in the context of 90-day QF utility’s application meets the open access practices pursuant to applications or that, as Occidental nondiscriminatory showing required by Commission-approved OATT are claims, use of complaint proceedings to statute, if the QF is barred from raising discriminatory. EEI states that if the address OATT implementation is issues regarding discriminatory Commission does ultimately require administration or implementation of the changes, QFs—like any other inconsistent with the language of the OATT and can only raise such issues in generator—will reap the benefit of those statute. We also reject arguments that, a separate complaint proceeding. In enhancements. because the Commission issued a NOPR addition, Occidental argues that it is 50. EEI further argues that where to reform the OATT, that we can no unclear how the Commission could issues regarding implementation or longer adopt a presumption that a make a determination that QFs have administration of a particular OATT Commission-approved OATT meets the nondiscriminatory access under an arise, a complaint pursuant to section requirements of section 210(m) electric utility’s OATT if the 206 of the FPA is the established regarding nondiscriminatory 30 Commission bars, from the outset, all mechanism available to QFs (or any transmission access. As we have evidence that the OATT is being other generator or transmission 30 In this regard we note that the rulemaking to administered or implemented in a customer) to raise such concerns. It reform the OATT is intended to remedy the discriminatory manner. states that in a complaint proceeding, ‘‘opportunity’’ for undue discrimination; the 47. PJM is concerned with the the Commission has the ability to Commission did not base its institution of the Commission’s presumption for both remedy any denial of open access that rulemaking in Docket No. RM05–25–000 on any finding that the OATT allows actual discrimination. section 210(m)(1)(B) and (C) that having results from improper administration of To the extent that ELCON argues that, through the an Order No. 888 OATT on file is an OATT, but that ability is not present NOPR process, the Commission has recognized ‘‘the enough to establish a presumption of under PURPA section 210(m), where the Continued
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found in market-based rate proceedings 888,32 and interconnection rules, further below, the comments we have and other contexts, a transmission adopted in Order Nos. 2003 33 and received do not provide a justification owner that has an OATT on file has met 2006,34 are designed to eliminate undue for categorically exempting any category the obligation set forth in Order No. 888 discrimination in the provision of of QFs from any future orders which to provide nondiscriminatory transmission and interconnection may terminate a utility’s requirement to transmission access. Until we issue a services. However, in the NOPR the enter into new contracts or obligations Final Rule in RM05–25–000 that Commission recognized that small QFs to purchase from QFs. No class of QFs modifies Order No. 888, no more is may be in a unique situation with has been shown to uniformly lack required. Further, the FPA provides respect to nondiscriminatory access nondiscriminatory access based on a specific mechanisms, complaints under because they interconnect with the single factor. We also agree with FPA section 206 or 306, to address interconnected utility at a distribution commenters, such as AEP, Entergy, allegations that a particular utility is not level.35 In the NOPR, the Commission Missouri River, Montana-Dakota, PJM properly administering the OATT. We sought comment on whether the Transmission Owners, PPL, Progress take very seriously allegations that a utilities’ purchase obligation should be Energy and Xcel, that section 210(m) transmission owner is violating its retained for small renewable projects. does not give the Commission authority OATT, but there are established The Commission also sought comment to categorically exempt certain QFs from statutory procedures for addressing such on whether there may be other statutory provisions. However, we allegations. PURPA section 210(m) does categories of QFs that lack believe the record does support creating not change this statutory framework.31 nondiscriminatory access to RTO/ISO a rebuttable presumption that certain 54. As to PJM’s argument that a filed short-term or long-term wholesale QFs may not have nondiscriminatory Order No. 888 OATT is not enough to markets for which the Commission access to markets because of their small establish a presumption of should retain the utilities’ purchase size. obligation. With respect to whether the nondiscriminatory access to the grid a. Small Size with respect to markets in purchase obligation should be retained subparagraphs (B) and (C) of section for small renewable projects, the i. Comments 210(m)(1), we find PJM to have Commission sought comments on how 58. CIBO argue that smaller QFs misinterpreted the NOPR. Affected to define ‘‘small,’’ e.g., 5 MWs or below, typically are less able to predict their 36 parties under subparagraphs (B) and (C) 20 MWs or below. generation and power export/import have the same opportunity to rebut the 57. Commenters from the QF industry levels due to unpredictable demand presumption of nondiscriminatory essentially argue that certain categories fluctuations. They state that while larger access as parties affected under of QFs should be ‘‘exempt’’ from section facilities may face similar unpredictable subsection (A). We note that, in general, 210(m)(1) because these QFs lack situations, they may have more latitude the evidentiary showings for relief from nondiscriminatory access to the markets in selecting and operating alternative the requirement that an electric utility described in section 210(m)(1)(A), (B), equipment and that latitude could allow enter into a new obligation to purchase or (C). In general, they argue that QFs for a higher level of power flow control. electric energy from a QF in section lack nondiscriminatory access if: (1) CIBO also argue that because of a QF’s 210(m)(1)(B) are higher than the They are of a small size, (2) they have small size, the transmission charges evidentiary showings in section certain operational characteristics such involved in accessing the three markets 210(m)(1)(A), and the evidentiary that the QF cannot access a particular described in section 210(m)(1), showings in section 210(m)(1)(C) are market, (3) they are interconnected at including locational marginal pricing higher than the evidentiary showings the distribution level, or (4) a and transition charges, can place a small required in section 210(m)(1)(B). combination of the above. As discussed QF in a position where it cannot reach those markets. Also, CIBO, AWEA, and 55. Comments discussed above that 32 Promoting Wholesale Competition Through are raised in the context of open access Open Access Non-discriminatory Transmission Granite State argue that certain markets service but also touch upon concerns Services by Public Utilities and Recovery of may require membership fees in order to with market rules and or operational Stranded Costs by Public Utilities and Transmitting participate in the market. CIBO state Utilities, Order No. 888, 61 FR 21540 (1996), FERC that a sufficiently large QF may face issues, for example, are addressed Stats. & Regs. ¶ 31,036 (1996), Order No. 888–A, further below. FERC Stats. & Regs. ¶ 31,048 (1997), order on reh’g, similar problems, but it presumably has Order No. 888–B, 81 FERC ¶ 61,248 (1997), order greater resources to address those 3. Other Market Access Issues Under on reh’g, Order No. 888–C, 82 FERC ¶ 61,046 problems, and sufficient economic Section 210(m)(1) (1998), aff’d in relevant part sub nom. Transmission interest in the success of the generator Access Policy Study Group v. FERC, 225 F.3d 667 (D.C. Cir. 2000), aff’d sub nom. New York v. FERC, to bring those resources to bear on the 56. The Commission explained in the problem. On the other hand, they argue NOPR, and has confirmed in this rule, 535 U.S. 1 (2002). 33 Standardization of Generator Interconnection that a small QF is more likely to lack the that the OATT adopted in Order No. Agreements and Procedures, Order No. 2003, 68 FR resources and to have less economic 49845 (Aug. 19, 2003), FERC Stats. & Regs. ¶ 31,146 incentive to apply those resources to the (2003), order on reh’g, Order No. 2003–A, 69 FR continuation of patterns of abuse,’’ ELCON problem, especially in light of the mischaracterizes the basis of the OATT rulemaking. 15932 (Mar. 26, 2004), FERC Stats. & Regs. ¶ 31,160 31 In fact, PURPA section 210(m) provides a (2004), order on reh’g, Order No. 2003–B, 70 FR265 staying power of its competition. compressed 90-day time frame in which the (Jan. 4, 2005), FERC Stats. & Regs. ¶ 31,171 (2004), 59. Granite State adds that most small Commission, after notice and opportunity for order on reh’g, Order No. 2003–C, 70 FR 37661 QF hydroelectric plants, for example, (June 30, 2005), FERC Stats. & Regs. ¶ 31,190 (2005). comment, must act on applications. This provides are located in areas which do not a clear indication that Congress did not intend 34 Standardization of Small Generator hearing or lengthy proceedings in order to make a Interconnection Agreements and Procedures, Order provide direct access to RTO/ISOs. It determination of whether the electric utility must No. 2006, 70 Fed. Reg. 34,100 (Jun. 13, 2005), FERC states that small QF hydroelectric be relieved of the mandatory purchase requirement. Stats. & Regs. ¶ 31,180 at 31,406–31,551 (2005), projects are generally located in areas A QF may, of course, file a complaint with the order on reh’g, Order No. 2006–A, 70 Fed. Reg. remote from high voltage power lines, Commission at any time, including a separate 71,760 (Nov. 30, 2005), FERC Stats. & Regs. ¶ 31,196 complaint in conjunction with its comments on an (2005). their locations being determined by the electric utility’s application for relief from the 35 NOPR at P 20. site of existing dams. Granite State mandatory purchase requirement. 36 Id. states that the amount of generation
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from a small QF hydroelectric plant is aggregate its electricity production with River Energy and Montana-Dakota argue dependent on the amount of water other nearby facilities, and can that no exemption is necessary for small flowing through the turbines on a demonstrate that it is not directly or QFs because small renewable projects particular hour. It states that they have indirectly modeled in the energy have become very marketable given the limited resources and the staff management or market information current regulatory and political employed by these projects are generally system, cannot directly sell any product environment of increasing renewable engaged in the day to day operation of or service into the RTO or ISO market portfolio standards. and appears to the RTO or ISO only as the projects. Granite State states that 66. As to NYISO and ISO–NE, developers of small hydroelectric plants a reduction to load. National Grid states that they have do not have the software, computer and 63. AEP, Entergy, FirstEnergy, generation interconnection policies in monitoring equipment to integrate to Missouri River and Montana-Dakota, place for small as well as large RTO/ISO operations and, in many PJM Transmission Owners, PPL, generators. National Grid states that regions, would not even be eligible to Progress Energy and Xcel argue that no there are no minimum size requirements bid their energy into these markets exemption should be allowed because: because they are too small for the (1) All QFs are eligible to receive for a generator to join NEPOOL, and applicable minimum block. transmission service under the pro while the NYISO currently will not 60. CIBO also argue that a small QF forma OATT, regardless of the level at accept bids in the markets it administers exemption, such as a MW limit, would which they are interconnected; (2) from generators with 1 MW or less of provide an administrative advantage Congress has not given the Commission capacity, that limitation is not because it would be less likely to the authority to exempt QFs from the immutable. It states that subject to that involve the QF and the Commission in provisions of section 210(m); and (3) an limitation, the market rules in ISO–NE additional proceedings and thus, avoid exemption could lead to uneconomic and the NYISO allow settlement for all potential additional burden on parties QF ‘‘gaming’’ strategies through sizes of generators. NSTAR adds that and the Commission. dividing generating facilities so that there are sufficient privileges afforded to 61. Although not arguing for a size they are under the size limit for the small renewable resources in NEPOOL, exemption, EEI states that it would be mandatory purchase obligation to kick- and regulatory requirements and appropriate to allow affected small QFs in. monetary incentives in the New in all markets, including ‘‘Day 2’’ 64. Other Commenters argue that no England states to sustain small organized markets, to have an exemption should be granted in certain renewable projects. The New York opportunity to demonstrate that they RTO/ISOs. PJM Transmission Owners Transmission Owners argue that in effectively lack nondiscriminatory and PPL Electric argue that PJM has NYISO, all facilities, including those access to those markets, despite their developed special procedures to ensure with a capacity under 20 MW, have the that small generators, even those under legal right to such access under an same equal and nondiscriminatory 20 MW, have comparable access to OATT. access to all NYISO markets and all energy and capacity markets. 62. EEI suggests that that the services offered by the NYISO under its Specifically, the PJM Transmission Commission could consider evidence of tariffs. NYISO does not take a position Owners state that Subpart G of PJM’s the following limited circumstances as a on whether there should be an tariff is dedicated to small generators to basis for finding that a small QF exemption. It states, however, that any provide clear and concise rules for these effectively may not have power producers to ensure that they unit, regardless of ownership or QF nondiscriminatory access to markets. have comparable access to participate in status, that has a generating capacity of One, where a small industrial two MWs or higher can bid directly into 37 energy and capacity markets allowing cogenerator (with a nameplate load to rely upon such resources. PJM the NYISO markets. capacity of 5 MW or less) has: (a) highly notes that since 1999, PJM has 67. As to what QF size should be variable thermal and electrical demand successfully interconnected numerous considered ‘‘small,’’ the proposals on a daily basis; (b) highly variable and small projects. These include 44 varied significantly from 1 MW to 80 unpredictable wholesale sales on a daily projects rated between 5–20 MW and 28 MWs.39 However, in general, most of the basis; and (c) no access to a mechanism rated at 5MW or less. It further states QF industry supports a 20 MW to schedule transmission service or that the majority of these projects are exemption, utilities generally support make sales in advance on a consistent sponsored by developers unaffiliated no exemption, and some entities are basis, either because of the variability of with transmission or distribution system its electricity production or because of willing to support an exemption for very owners. Montana-Dakota adds that QFs small QFs (i.e., smaller than 1 MW) in market rules that prevent the QF from have nondiscriminatory access to the scheduling transmission service or specific service territories. Granite State Midwest ISO markets regardless of size. and American Energy argue that a 20 participating in organized markets. Two, 65. With regard to the Midwest ISO, where a QF is very small,38 and cannot MW demarcation strikes a reasonable several commenters such as Missouri balance between small and large
37 projects. The nameplate capacity of EEI does not expect that the Commission would termination of the mandatory purchase obligation is extend the opportunity to demonstrate lack of likely to vary among RTO/ISOs, based on factors many renewable technologies like wind access under this proposal to wind generators. EEI such as operational requirements of the particular and hydro do not accurately reflect the states that while electricity production from wind RTO, any threshold level for transactions that may annual generating capacity of such units power is variable, wind generation is predictable in be required in an RTO, any minimum size due to the lower capacity factor dictated its variability, and the Commission has requirements for participation in the RTO market, accommodated this variability through or other factors specific to the RTO/ISO market by the variability in available river flow interconnection rules and other policies. EEI asserts involved. For example, EEI notes a ‘‘very small’’ QF and wind. Granite State states that the that wind generators differ as well from small for the NYISO market could be a QF less than 1 MW 20 MW limitation would provide the industrial cogenerators, whose primary purpose, in that has not been able to aggregate supply in order accordance with PURPA, is not intended to be the to participate at the 1 MW minimum transaction production of electricity, while wind generators are level established in the NYISO tariff. See NYISO 39 Industrial Boilers proposed 80 MW, UAE exclusively electricity producers. FERC Electric Tariff, Original Volume No. 2 proposed 30 MW, AWEA and ELCON proposed 20, 38 EEI states that the size of a ‘‘very small’’ QF for (‘‘Services Tariff’’), Sections 4.1.4, 4.2.2(c)(1) and and EEI proposed 1 MW for cogeneration and 5 MW purposes of its proposed exception to the 5.12. for small production.
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needed flexibility to ensure that small make sales to their utilities at avoided described in section 210(m)(A), (B), or projects are protected. cost rates. Those QFs with capacities of (C). To rebut this presumption, the filing 68. In addition, ELCON, Granite State, more than 5 MW and less than 20 MW electric utility will be required in its AWEA, and Landfill Gas state that the would have the benefit of a rebuttable application to demonstrate, with regard 20 MW demarcation is consistent with: presumption in favor of retaining the to each small QF that it, in fact, has (1) Order No. 671; and (2) the utility’s mandatory purchase obligation. nondiscriminatory access to the market. Standardization for Small Generation UAE simply states that it believes that 73. The Commission finds persuasive Interconnection Agreements and a small QF should be defined as less commenters’ arguments that some QFs Procedures, Order Nos. 2006 and 2006– than 30 MW without elaboration. may not have nondiscriminatory access A, which recognizes that small 71. PJM agrees that EEI’s size limit to one of the three markets described in generators, i.e., 20 MW or below, should exception (1 or 5 MWs) may be section 210(m)(1)(A), (B), or (C) because have different standards than large appropriate as applied to very small of their small size. There was agreement generators. AWEA also states that entities that do not aggregate their among commenters representing both utilizing a 20 MW threshold for ‘‘small’’ generation. PJM states, however, that in QFs and utilities that small size could generators will also avoid the PJM market resources rated below affect a QF’s ability to access markets. inconsistencies with state very small levels are permitted to To varying degrees, the QF industry, interconnection procedures which are aggregate for the purpose of submitting EEI, and also PJM, recognized that small designed around the current 20 MW offers. Therefore, PJM concludes that a QFs may not have nondiscriminatory threshold for ‘‘small’’ generators. facility less than 100 kW may meet a access to the three markets described in Further, AWEA states that a 20 MW ‘‘unique circumstances’’ standard. PJM section 210(m)(1)(A), (B), or (C). There threshold will help prevent RTO/ISO states that it does not impose a size limit was not, however, consensus as to what market-participation costs from on modeling. PJM states that it requires constitutes ‘‘small’’ for purposes of discouraging market participation and that new resources rated higher than 10 identifying QFs that may not have development of small generators. MW, whether in the PJM market or nondiscriminatory access to markets. 69. CIBO argue that ‘‘small’’ should be behind the meter, as well as any new 74. In determining what constitutes defined as 80 MW or less. They state capacity resource intending to set real- ‘‘small’’ for purposes of the rebuttable that Congress already adopted 80 MW to time locational marginal pricing (LMP), presumption, we are not making a reflect what is small in PURPA, which must be explicitly modeled in the PJM finding that all QFs smaller than a used 80 MW to treat as QFs small power Energy Management System network certain size lack nondiscriminatory production facilities with a net capacity model. As to access, PJM states that the access to markets. Rather, utilities of 80 MW or less that produce PJM market has a 100 kW minimum for seeking to terminate the requirement electricity from biomass, waste, offers to buy and sell in the Capacity that they enter into new contracts or renewable resources, geothermal and Day-Ahead Markets and 1 kW for obligations to purchase from small QFs resources, or any combination of these offers in the Real-Time Market. will be required to rebut the sources. In addition, CIBO argue that an presumption that QFs sized 20 MW net 80 MW bright line would also resolve a ii. Commission Determination capacity or smaller do not have access. number of the operational concerns 72. We believe that the record A utility’s demonstration must be filed faced by QFs. They argue that a QF of supports creating a rebuttable as part of its application filed pursuant greater than 80 MW is more likely to presumption 40 that certain QFs may not to section 292.310 of our regulations. interconnect to the grid at higher have nondiscriminatory access to 75. Commenters suggested various voltages, and less likely to interconnect markets because of their small size. In sizes as the demarcation between QFs at distribution voltages, thereby addition, we find that a reasonable and that can access markets. CIBO suggested addressing a number of the transmission administratively workable definition of 80 MW as the logical demarcation point, access issues, including in particular the ‘‘small’’ is 20 MW. As a result, the Final pointing to the definition of ‘‘small distribution facilities charges that lower Rule creates a rebuttable presumption power production facilities’’ in PURPA. voltage QFs will face. Regardless of the that the requirement that an electric Granite State, AWEA and Landfill Gas interconnection voltage, CIBO argue that utility enter into new contracts or suggest that the Commission use 20 MW a QF of greater than 80 MW will more obligations to purchase from a QF as the demarcation pointing to the likely have an economic interest remains in effect, in all markets, for QFs Commission’s use of 20 MW as being sufficient to seek to participate in the sized 20 MW net capacity 41 or the demarcation between large and market and the resources to participate. smaller.42 This rebuttable presumption small generators for interconnection Further, CIBO argue that a QF of greater will apply to applications in markets purposes and for purposes of QF than 80 MW will probably have more exemption from sections 205 and 206 of latitude in selecting and operating 40 As we noted above in P 57, no class of QFs has the FPA. alternative equipment and that latitude been shown to uniformly lack nondiscriminatory 76. Keeping in mind that we are access based on a single factor. Thus, we are not can allow for a higher level of power making a finding here but are establishing a creating a rebuttable presumption, and flow control. Finally, they argue that an rebuttable presumption. to include most small QFs that may lack 80 MW bright line will not undercut 41 A QF, when it seeks certification, states what nondiscriminatory access to markets what they claim is the Commission’s size it is. The size it is required to state is its ‘‘net within the presumption, we find that capacity’’ which is its gross capacity, less station goal of limiting PURPA abuse and power. In the case of Commission-certified the 20 MW demarcation is reasonable. would ensure that units benefiting from facilities, the Commission certifies the QF at its net As pointed out by commenters, the the mandatory purchase and sale capacity; self-certified facilities self-certify at net Commission used 20 MW in Order No. capacity. The Commission has been consistent over 671 to exempt QFs that are 20 MW or obligations will in fact be the QFs that the years in requiring QFs to state their net capacity Congress has wanted to protect. in the Form 556 which is the basis of both smaller from sections 205 and 206 of the 70. Granite State and USCHPA are applications for Commission certification, and FPA. The Commission also used the 20 open to a hybrid definition of ‘‘small’’ notices of self-certification. A QF’s Commission MW demarcation for eligibility for the certified (or self-certified) net capacity would QF whereby small QFs with a determine whether the QF qualifies for the ‘‘small interconnection rules contained in nameplate capacity of 5 MW or less size’’ rebuttable presumption in this Final Rule. Order Nos. 2006 and 2006–A, which would automatically retain the right to 42 Herein referred to as ‘‘small QF.’’ recognize that small generators, i.e., 20
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MW or below, should be subject to which the QF has been participating in manufacturing production rates—such different standards than large the market or is is owned by, or is an as in phosphate fertilizer manufacturing generators.43 In adopting this 20 MW affiliate of, a entity that has been operations. It states that such process- demarcation in this proceeding, we participating in the relevant market. following QFs generate at high recognize that no single per-MW b. Operational Characteristics and efficiencies and consume little or no demarcation is perfect. However, we Transmission Constraints fossil fuels. However, because the rate of believe that, in creating a rebuttable electric energy production varies presumption, it is necessary to establish i. Comments (‘‘follows’’) in direct proportion to the a clear demarcation and, as indicated, 79. Many commenters argue that underlying manufacturing processes, that 20 MW is appropriate for that dispatchability and intermittent such QFs would find themselves at a purpose. We are influenced by the fact resource characteristics do not allow significant and untenable that the statute provides a very QFs to have nondiscriminatory access to compressed 90-day time frame in which disadvantage—especially with regard to the markets described in section deviation from schedule and energy parties may provide the record support 210(m)(1)(A), (B), or (C). Several for a determination of whether a utility imbalances, as well as other associated commenters argue that before the factors—if PURPA’s mandatory must be relieved of the purchase purchase requirement is lifted the obligation. The statute does not provide purchase obligation were lifted in Commission must consider the unique Florida. time for lengthy litigation. Unlike other generation operational differences of provisions of the FPA, which require certain QFs that affect their 81. In addition to EEI’s comments notice and an opportunity for ‘‘hearing,’’ nondiscriminatory access to competitive regarding a QF’s size as a contributor to section 210(m)(a)(3) provides for notice markets. For example, American Forest a lack of nondiscriminatory access, EEI and opportunity for ‘‘comment’’ and a & Paper states that real-time and day- states that it would also be appropriate final decision within 90 days of filing. ahead, bid-based markets are, in to allow affected QFs in all markets, Thus, it is consistent with the statutory themselves, inadequate to support including ‘‘Day 2’’ organized markets, to framework to provide clear baseload operations of QFs with limited have an opportunity to demonstrate that demarcations that will permit the dispatchability. American Forest & they effectively lack nondiscriminatory Commission to make reasoned Paper states that bidding into an hourly determinations within the 90-day access to those markets, despite their energy market subjects QFs to period. After balancing all relevant legal right to such access under an unworkable dispatch risks which may 44 considerations, we therefore adopt a OATT where an existing QF is located require either: (1) Bidding a price too clear demarcation of ‘‘small QF’’ in this in an area in which persistent Final Rule. low to support fixed cost recovery in transmission capacity constraints 77. The Commission will not allow order to ensure dispatch; or (2) effectively cause the QF to have neither for gaming of this 20 MW rebuttable jeopardizing industrial or other physical 45 nor financial access 46 to presumption. If parties are concerned processes required to be primary under markets outside the persistently that a QF has engaged in such gaming newly enacted section 210(n). Similarly, congested area and there is not a with regard to the certification or siting CIBO argues that the Commission sufficient opportunity to relieve the of a particular facility, we encourage should require an analysis of the transmission constraint or to sell its operational issues, including, for those parties to bring their concerns to output or capacity within the area on a example, the voltage level of the our attention. In any such proceeding, short-term and long-term basis because interconnection between the QF and the we will consider all relevant factors, of the transmission constraint. including, but not limited to, grid, and the fact that cogeneration ownership, proximity of facilities, and thermal host limits the ability to dispatch a QF. It states that the 44 An existing QF is one that is in existence as whether facilities share a point of of the date the mandatory purchase obligation is interconnection. For purposes of mandatory purchase obligation should terminated. evaluating proximity of facilities with only be removed if it is demonstrated 45 EEI suggests that for purposes of this exception, regard to alleged gaming of this that markets are truly accessible to QFs, a QF is prevented from having ‘‘physical access’’ rebuttable presumption, we will not be taking into consideration QF operational outside its congested area when the QF is located issues, including size, in some cases in a ‘‘generation pocket.’’ EEI believes this means bound by the one-mile standard set that during annual system peak conditions, the QF forth in 18 CFR 292.204(a)(2). interconnecting at distribution voltage is unable (because of transmission congestion) to 78. In order to rebut the 20 MW (with the attendant costs of paying for deliver the power it generates that is not consumed presumption, an electric utility will distribution adders), the different by local loads to the remainder of the relevant ISO’s efficiency and operational constraints of or RTO’s control area, or to other areas if the QF have the full burden to show that small is not located in an ISO or RTO control area. EEI QFs have nondiscriminatory access to industrial boilers, the different concludes the geographic area that should be the market of which the electric utility efficiency and operational constraints evaluated as a potential ‘‘generation pocket’’ is the is a member. We will not specify, in this caused by industrial cogeneration hosts, area containing the QF and other generators that Final Rule, what evidence would be and the impact of transmission charges, sufficiently contribute to the congestion on the transmission line, as defined by the ISO or RTO in sufficient, but note that relevant including locational marginal pricing its applicable resource adequacy deliverability evidence may include the extent to and transition charges, on economically analysis, if the QF is located in an ISO or RTO marginal QF generation. control area. See, e.g., CAISO Preliminary 43 Order No. 2006 defined a ‘‘Small Generating 80. Florida Industrial argues that the Deliverability Baseline Analysis Study Report, May Facility’’ as a device used for the production of Commission should specifically retain 3, 2005, Appendix I. In addition, a given QF’s lack electricity having a capacity of no more than 20 of physical access should be subject to annual MW. The Commission concluded in Order No. 2006 the utility obligations to purchase for review in order to determine whether the that general consistency between the Commission’s that category of ‘‘process-following’’ mandatory purchase obligation should continue. interconnection procedures document and QFs that rely on a reject waste heat from 46 EEI states that existing ‘‘Day 2’’ organized interconnection agreement adopted in that final an associated industrial manufacturing markets rely on LMP and financial transmission rule and those of the states will be helpful to rights rather than physical transmission rights. removing roadblocks to the interconnection of process for the production of electricity Where a financial right exists, a generator enjoys Small Generating Facilities. See Order No. 2006 at and thermal energy—and where the access to markets, regardless of whether a physical P 4. amount of reject waste heat varies with right exists.
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ii. Commission Determination characteristics might include, but are distribution level. They argue that 82. While we agree with commenters not limited to, dispatchability or some whether a QF interconnects at the that there may be factors unique to a QF other characteristic. distribution or transmission level is that prevent its nondiscriminatory (C) A QF lacks access to markets due irrelevant because it has access to one of the three markets to transmission constraints. A QF may nondiscriminatory access to competitive described in section 210(m)(1), we do show that it is located in an area where markets through open access not believe that any factor, other than persistent transmission constraints in transmission and interconnection small size, has been shown in this effect cause the QF not to have access services. Central Vermont and Southern rulemaking to be an appropriate basis to markets outside a persistently California Edison Company (SCE) state on which the Commission can establish congested area to sell the QF output or that under Order Nos. 2003–C and 2006–A all of the utility’s facilities, a rebuttable presumption of lack of capacity. including its distribution facilities, that nondiscriminatory access. Unlike the 84. In evaluating transmission are used to implement a sale for resale size limitation discussed above, constraints, the Commission will or to transmit electricity in interstate operational characteristics and consider, on a case-by-case basis, among commerce are subject to the transmission limitations are not other things, the opportunity for QFs, on nondiscriminatory requirements of the susceptible to a clear demarcation for a nondiscriminatory basis, to obtain utility’s OATT. In addition, EEI and SCE purposes of establishing a rebuttable transmission upgrades to relieve state that QFs may take advantage of the presumption. We do believe, however, constraints and whether the structure of interconnection provisions of section that by establishing a rebuttable the relevant market provides for the 210 of the FPA, under which they can presumption based on size, we in effect opportunity for the QF to sell notwithstanding the constraint. obtain services at Commission- capture some of the operational issues determined rates, terms and conditions. expressed by commenters. Accordingly, c. Distribution Level Also, EEI points out that section 1.11 of the final rule does not establish a i. Comments the pro forma OATT makes clear that a rebuttable presumption specific to generator interconnected at the 85. AWEA and others point out that operational characteristics. distribution level is entitled to request the problems for QFs connecting at the 83. However, with respect to the transmission service under the OATT. rebuttable presumption that QFs larger distribution level include: (1) Wheeling 88. PJM states that regardless of than 20 MW net capacity in the four charges over distribution to reach RTO/ whether a resource interconnects at the listed RTO/ISOs do have access to ISO markets; (2) costs associated with transmission or distribution level, it is markets, QFs larger than 20 MW may access to the RTO/ISO market; and (3) entitled in PJM to obtain seek to rebut this presumption in their other costs and procedural barriers that interconnection service and open-access response to applications pursuant to can be unilaterally imposed by the delivery service. SCE argues that if the section 210(m)(3) of PURPA and distribution utility to deny or hinder Commission does not adopt a generic § 292.310 of our regulations. The access to the market. finding that generators have open access comments suggest that a QF may rebut 86. Many commenters including on a nondiscriminatory basis to the the presumption by showing, for AWEA, argue that QFs are typically local distribution facilities of all example, one or more of the following located in areas which do not provide Commission-regulated utilities, there is factors. Although we do not make any direct access to competitive wholesale support for such a finding as to the State final determinations herein as to markets, such as RTO/ISO markets. of California, given the existence of whether any such factor, standing alone, AWEA states that, instead such facilities Wholesale Distribution Access Tariffs is sufficient to rebut the presumption of are forced to connect to the distribution market access, we do agree with the market operated by competing utilities. ii. Commission Determination commenters that these factors are AWEA states that utilities and state 89. The connection of a QF to relevant to the question of whether the commissions—not FERC or RTOs— distribution-level facilities can present purchase obligation should be control who can interconnect at the two different issues: (i) Whether the terminated and, upon an appropriate distribution level and charge costs that utility owning the distribution facilities evidentiary showing, may be sufficient are prohibitive for many QFs. AWEA will permit the QF to have access to to rebut that presumption: states that because QFs cannot reach the markets and (ii) if that access is granted, (A) The QF has certain operational RTO/ISO without incurring significant whether any associated distribution characteristics that effectively prevent costs to interconnect at the distribution charges are sufficient to negate that the QF’s participation in a market. Such level, access is typically uneconomic for access for purposes of applying section operational characteristics might QFs. AWEA states that accordingly, 210(m). As to the first question, we include, but are not limited to: (a) these QFs have no opportunity to sell agree that a denial of actual access to Highly variable thermal and electrical power in a competitive market. AWEA distribution facilities for purposes of demand (from the QF host) on a daily states that there is no way to ensure fair selling power into the wholesale market basis, such that the QF cannot and nondiscriminatory treatment to QFs would constitute sufficient evidence to participate in a market; or (b) highly forced to interconnect with a competing find that section 210(m) has not been variable and unpredictable wholesale utility. NPRA states that a competitive satisfied (and hence to retain the sales on a daily basis. market in which the utility baseloads its mandatory purchase obligation). We (B) The QF has no access to a own generation and seeks ‘‘competitive’’ recognize that open access transmission mechanism to schedule transmission solutions for peaking power may not service, adopted in Order No. 888,47 and service or make sales in advance on a fairly accommodate the sale of capacity interconnection rules, adopted in Order consistent basis, either because of the and energy from non-dispatchable QF Nos. 2003 48 and 2006,49 are designed to variability of the QF’s electric energy generating facilities. eliminate undue discrimination in the production or because of market rules 87. Other commenters disagree with that prevent the QF from scheduling the argument that the Commission 47 Supra note 32. transmission service or participating in should retain the mandatory purchase 48 Supra note 33. organized markets. Such operational obligation for QFs interconnected at the 49 Supra note 34.
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provision of transmission and suggests otherwise. Thus, the opportunities for QFs without any interconnection services but do not requirement to pay an interconnection utility submission or evidence, and then address certain distribution level issues. charge, transmission charge, or shifting the burden to QFs to rebut the Indeed, the Commission does not have distribution charge, in and of itself, is NOPR’s conclusions. jurisdiction over all distribution level not an indication that a QF does not 94. CIBO argue that placing the facilities,50 and thus QFs interconnected have nondiscriminatory access to a burden on industrial QFs is arbitrary, to those facilities face access issues that market. because industrial QFs generally lack are different from the access issues that 4. Burden of Proof the resources and Commission are faced by QFs interconnected directly regulatory expertise to participate in to RTO/ISO facilities.51 Although we do a. NOPR litigation before the Commission. In not believe the record supports any 91. In the NOPR, the Commission addition, it argues that such a shifting generic findings that QFs proposed to make generic findings that of the burden of proof is contrary to 5 interconnected at a distribution level do certain markets satisfy the conditions of U.S.C. 556(d) and contrary to the not have non-discriminatory access to section 210(m)(1)(A). In addition, the structure of section 1253, which markets, a QF may be able to show, Commission proposed to create a envisions that the Commission will act based on its specific circumstances, that rebuttable presumption that the Order on applications submitted by the utility it does not have such access to markets No. 888 OATT provides and supported by a demonstration made as a result of not being able to obtain nondiscriminatory access to markets. by the utility. Finally, the Council non-discriminatory access to argues that it creates a disincentive for distribution facilities. Thus, for b. Comments its members and other industrial QFs, purposes of the rebuttable presumption 92. American Chemistry Council, who generally lack the resources and that QFs above 20 MWs in the four Caithness, American Forest & Paper, regulatory expertise to bear that burden. ISOs/RTOs (ISO–NE, NYISO, PJM and CCC, CIBO, Occidental, PIOs, Dow, and 95. Occidental adds that section Midwest ISO) have non-discriminatory ELCON argue that the burden of 210(m)(3) provides the single access to markets, QFs may be able to establishing that the section 210(m) mechanism by which an electric utility rebut the presumption by, e.g., criteria are met is placed squarely on the can eliminate its mandatory purchase demonstrating a denial of actual access electric utility seeking relief from the requirement. It argues that the statute to distribution facilities for the purposes must purchase requirement. Several of does not permit the Commission to of selling power to the wholesale these commenters argue that the relieve the applicants’ burden to market. Moreover, we note that, for Commission erred in making generic demonstrate the ‘‘factual basis’’ of their small QFs (many of whom may be determinations for section 210(m)(1)(A). requested relief by rulemaking. connected at distribution level), the All of these commenters argue that 96. EEI states in its reply comments utility must also overcome the section 210(m)(3) shows Congressional that it strongly believes the four RTO/ rebuttable presumption that such small intent that electric utilities can be ISOs provide nondiscriminatory access QFs do not have sufficient access to relieved only after careful consideration to all generators, operate competitive markets to satisfy section 210(m). 90. With respect to the second issue, on a utility-specific service territory wholesale markets meeting the criteria we find that the imposition of a charge basis—not on a broader region-wide in section 210(m)(1)(A)(i), and afford for access to the distribution system basis. ELCON and many others claim opportunities for long-term sales of does not mean that the QF does not that the Commission has a statutory capacity and energy within the meaning have ‘‘access’’ to competitive markets. A obligation to make facility-specific of section 210(m)(1)(A)(ii). EEI states QF wishing to access competitive determinations that nondiscriminatory that the Commission is correct to make markets is expected to pay the access to long-term markets truly exists. generic findings regarding these reasonable charges, whether for Industrial Energy Consumers add that markets. EEI states that to do otherwise transmission or distribution facilities, the statute requires that the utility make would compel the Commission to re- that are associated with such action. a specific showing, supported by litigate the same issues time and time There is nothing in section 210(m) that evidence, about the existence of and again to reach the identical nondiscriminatory access to long-term determination. 50 See, e.g., PJM Interconnection, LLC, 114 FERC markets. ELCON and others contend 97. EEI states that only QFs will have ¶ 61,191, order on reh’g, 116 FERC ¶ 61,102 (2006). that the statute does not provide the the evidence necessary to demonstrate 51 The Small Generator Interconnection Commission with the discretion or legal that they, in fact, lack access and Procedures (SGIP) and the Small Generator authority to abandon this QF-level Interconnection Agreement (SGIA) outlined in thereby to rebut the presumption and Orders Nos. 2006 and 2006–A, include separate analysis in favor of a generic analysis. that the Commission is not reversing the definitions for ‘‘Transmission System’’ and Granite State is concerned that a generic burden of proof, but placing it where it ‘‘Distribution System’’ to account for the distinct finding will adversely affect small belongs. EEI states that the opportunity engineering and cost allocation implications of an interconnection with a Distribution System. Order developers because they would not to rebut this presumption generally will No. 2006 states that use of the term ‘‘Distribution receive actual notice of the elimination be available to QFs in their comments System’’ has nothing to do with whether the facility of the mandatory purchase requirement. to applications for relief filed pursuant is under this Commission’s jurisdiction; some 93. The CCC argues that section to section 210(m)(3). ‘‘distribution’’ facilities are under our jurisdiction 210(m) requires utilities to make and others are ‘‘local distribution facilities’’ subject c. Commission Determination to state jurisdiction. Further Order No. 2006 applies principal showings demonstrating that only to interconnections to facilities that are already market conditions justifying removal of 98. Commenters, in response to the subject to a jurisdictional OATT at the time the the mandatory purchase requirement NOPR’s proposal to find that the interconnection request is made and that will be used for purposes of jurisdictional wholesale sales. exist. It states that QFs then have the markets of the four RTO/ISOs satisfy Order No. 2006 explains that because of this limited ability to rebut the utilities’ section 210(m)(1)(A), raise essentially applicability, and because the majority of small presentations. The CCC states that the the same issue from two different generators interconnect with facilities that are not NOPR turns this scheme on its head by perspectives: (1) The Commission’s subject to an OATT, Order No. 2006 will not apply to most small generator interconnections. See Order making initial, unsupported conclusions authority to make generic findings; and No. 2006 at P 6, 7 and 8. regarding the existence of market (2) section 210(m)(3) places the burden
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of proof on the electric utility, not the the compressed 90-day timeframe presumption by showing that it in fact QF. required by statute.53 lacks access. 99. We have previously discussed the 101. We also note that certain QFs 103. A similar process will be used in rebuttable presumptions being adopted recognize our authority to make generic cases for utilities located in ‘‘Day 1’’ or herein—in favor of electric utilities with findings. PIOs implicitly acknowledge other markets. However, in those respect to ‘‘large’’ QFs in the four the Commission’s authority to make markets, other than ERCOT, there will organized markets and in favor of generic findings in supplemental be no presumption that a market that ‘‘small’’ QFs in all markets. Several comments filed on August 25, 2006. In satisfies section 210(m)(1)(B) or (C) parties challenge our ability to make any those comments, PIOs urged the criteria for termination of the purchase such determinations on a generic basis Commission to find that certain classes obligation exists. The utility seeking in this rulemaking. We disagree. First, of QFs should retain the right to require relief will have to make that showing. In we have broad discretion to adopt electric utility purchases regardless of addition to providing evidence that generic policy or make generic findings the state of the markets on the ground such markets satisfy the criteria of subsections (B) and (C) generally, a through either rulemaking or that certain classes of QFs lack access to 52 utility will have to submit evidence adjudication. We believe doing so markets. through this rulemaking provides all sufficient to overcome the presumption affected entities—including both 102. As noted, while the Commission that a QF of 20 MWs net capacity or utilities and QFs—a reasonable is making a finding in this rulemaking below does not have nondiscriminatory opportunity to be heard on common that four markets satisfy the market access to those markets. Further, as issues that arise in various market criteria of section 210(m)(1)(A) of indicated, there will be no presumption structures and for classes of QFs. It PURPA, and is establishing a rebuttable regarding QFs above 20 MWs for makes little sense to adopt such generic presumption that QFs above 20 MWs markets covered by sections determinations in the first case to have nondiscriminatory access to those 210(m)(1)(B) and (C). present them, thereby effectively markets, electric utilities within those 104. The result of this procedural denying the vast majority of utilities and markets will nevertheless have to file an process is that, before the Commission QFs the ability to comment on those application pursuant to our regulations relieves an electric utility of its policies or findings before they are implementing section 210(m)(3) of requirement to enter into a new contract adopted for the first time. To some PURPA, that is pursuant to section or obligation to purchase electric energy extent, generic findings about certain 292.310 of the Commission’s from any QF, the Commission will have aspects of ‘‘Day 2’’ markets are regulations, for relief from the made a facility-specific determination inevitable, either by rulemaking or in requirement to enter into new contracts that the QF has nondiscriminatory the first utility specific filing in each or obligations with QFs. An electric access to a section 210(m)(1)(A), (B) or ‘‘Day 2’’ market. Making generic utility member of one of these four (C) market. It is true that the process findings by rulemaking provides RTO/ISOs filing for relief from the utilizes certain rebuttable presumptions. affected QFs better notice. obligation to purchase will need to refer But as discussed above, we believe that 100. Second, we are not persuaded to this finding in the Final Rule as part there is a reasonable basis for the that the issues relevant to the findings of its application. When it files for relief presumptions we are establishing, and and rebuttable presumptions we adopt from the purchase obligation it must we stress that all of the presumptions here vary so significantly in each case also submit information about being established are rebuttable. We also that they must be resolved only on a transmission constraints within its believe that the use of the presumptions case-by-case basis. For example, the service territory in order to give will assist the parties—QFs as well as issue of whether the four ‘‘Day 2’’ potentially affected QFs information electric utilities—and the Commission markets satisfy section 210(m)(1)(A) is that may be relevant to rebutting the to more readily process applications for one that can be resolved generically. We presumption that they have access to all termination of the purchase requirement find no merit in the contention that we aspects of the applicable ‘‘Day 2’’ consistent with the statute and within should relitigate that issue hundreds of market. A QF 20 MW or smaller located the 90-day timeframe required by times for every QF located in ‘‘Day 2’’ within the Midwest ISO, PJM, ISO–NE, section 210(m)(1)(3) of PURPA. Finally, organized markets. Our approach here is and NYISO will be presumed not to we recognize concerns that QFs may not consistent with the language of the have nondiscriminatory access to these have access to the level of information statute. Section 210(m)(1)(B) provides wholesale markets.54 A QF larger than that electric utilities have and that some for the submission of ‘‘evidence of 20 MW located within the Midwest ISO, QFs lack the resources and expertise to transactions within the relevant PJM, ISO–NE, and NYISO will be participate in Commission litigation. market.’’ Because this language is not presumed to have nondiscriminatory The creation of the rebuttable included in section 210(m)(1)(A), our access to these wholesale markets. A QF presumption in favor of small QFs, as approach providing for findings and larger than 20 MW may rebut that well as the information requirements we rebuttable presumptions is consistent are imposing on electric utilities as part of their applications, should help QFs in with the statute. Finally, we note that, 53 We note in this regard that section 210(m) of unlike the NOPR, we are only PURPA requires the Commission to act on an this regard. Thus, we believe that the establishing rebuttable presumptions of application, within 90 days of such application, procedures we are creating for access to markets, not final ‘‘after notice * * * and an opportunity for processing applications to terminate the comment.’’ This contrasts with the requirement of requirement that an electric utility determinations. These rebuttable sections 205 and 206 of the FPA that the presumptions are not only reasonable Commission act after a ‘‘hearing,’’ not just after an purchase electric energy from a QF are because they address common, opportunity to comment. See 16 U.S.C. 824d, e. consistent with the requirement in recurring issues, but also will permit 54 The electric utility would have to make section 210(m)(3) of PURPA that: (1) better processing of applications under additional showings if it wished to rebut the QFs be given sufficient notice; (2) a presumption that small QFs do not have nondiscriminatory access to its region’s Day 2 utility set forth the factual basis on 52 See SEC v. Chenery, 332 U.S. 194, 202–03, wholesale markets, and to long term capacity and which relief is requested; and (3) a reh’g denied, 332 U.S. 747 (1947). energy markets. utility describe why the conditions set
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for in sections 210(m)(1)(A), (B) or (C) The Commission stated that it is for power when the Commission’s own have been met. reasonable to conclude that the second recent rulemaking announcing financial 105. As to the arguments that QFs do prong of section 210(m)(1)(A) is met transmission rights (FTRs) is predicated not have sufficient notice of the because bilateral long-term contracts are on the need for FTRs to jump start long- Commission’s generic conclusions, we available to participants in the term power markets specifically in disagree. As indicated above, these footprints of the Midwest ISO, PJM, regions with ISOs and RTOs. ELCON parties have it backwards. We are ISO–NE, and NYISO. Therefore, the takes issue with the assertion that PJM providing greater, not lesser, notice of Commission proposed to find that operates an open, competitive market, our conclusions regarding these issues electric utilities that are members of the citing the State of Delaware as an by addressing them in a proposed Midwest ISO, PJM, ISO–NE, and NYISO example. ELCON states that according rulemaking, rather than in individual would meet the requirements for relief to a recent report by the Delaware adjudications. Moreover, every from the mandatory purchase Cabinet Committee on Energy, potentially affected QF will be given requirement.56 competitive markets are not working in notice of the proceedings filed under 57 b. Comments Delaware. § 292.310 of our regulations and will, in 110. Deere & Company (Deere) states those proceedings, have the opportunity 108. The American Chemistry that open access transmission service to rebut the generic findings made in Council, American Energy, American presumes the existence of bilateral sale this Final Rule. Forest & Paper, CCC, and Midwest and purchase parties separate from the Transmission Customers disagree with transmitting utility, with the B. Section 210(m)(1)(A) of PURPA the Commission’s finding and argue that transmitting utility providing the Midwest ISO, PJM, ISO–NE, and NYISO 1. Midwest ISO, PJM, ISO–NE, and transmission service to either the seller do not meet section 210(m)(1)(A). NYISO or the buyer. Deere states that that does Several commenters argue that the a. NOPR not mean that there is Commission’s proposed findings with nondiscriminatory access to the long- 106. Section 210(m)(1)(A) of PURPA respect to the Midwest ISO, PJM, ISO– term sale and purchase market. Deere requires the Commission to terminate an NE, and NYISO markets are states that one buyer for all long-term electric utility’s obligation to purchase insufficiently supported by record sellers in a market would mean that from QFs if QFs have nondiscriminatory evidence. In addition, the American there is a monopsony, and through the access to (i) independently Chemistry Council and CCC argue that administered, auction-based, day-ahead these markets are premature. exercise by the single buyer of its and real-time wholesale markets for the 109. Wisconsin Industrial Energy monopsony ‘‘market power,’’ sale of electric energy; and (ii) Group, Inc. argues that the manifested in the form of a refusal to wholesale markets for long-term sales of Commission’s proposed findings with deal, a new seller would not have any capacity and electric energy. respect to Midwest ISO are premature access to the long-term sale and 107. In the NOPR, the Commission because a viable competive market does purchase market. interpreted section 210(m)(1)(A) to not exist in the Midwest ISO footprint 111. Caithness argues that sections apply in regions in which ISOs and and because QF owners and operators 210(m)(1)(A) and (B) both require that RTOs administer day-ahead and real- do not have nondiscriminatory access to there be markets for long-term time markets, and bilateral long-term the Midwest ISO market. Midwest wholesale sales of energy and capacity contracts for the sale of capacity and Transmission Customers argue that before the must-purchase requirement electric energy are available to Midwest ISO markets are still not can be terminated. The American participants/QFs in these markets. sufficiently mature to justify the Chemistry Council argues that in trying These are commonly known as ‘‘Day 2’’ Commission terminating the PURPA to make sense of the fact that section RTO/ISOs. The Commission proposed purchase obligation in Midwest ISO. 210(m)(1)(B) contains a directive to to find that the Midwest ISO, PJM, ISO– The American Chemistry Council and ‘‘consider evidence of transactions in NE, and NYISO satisfy the requirements CCC argue that there is no evidentiary the relevant market,’’ while section of section 210(m)(1)(A).55 The basis that shows bilateral contracts for 210(m)(1)(A) contains no such directive, Commission stated in the NOPR that long-term sales of capacity are available the Commission’s proposed these entities are Commission approved to QFs on a nondiscriminatory basis or interpretation effectively reads an ISOs or RTOs that provide that there is a ‘‘market’’ for such essential element of section nondiscriminatory open access contracts. These commenters argue that 210(m)(1)(A)—namely, the existence of transmission services and the NOPR offers no qualitative analysis ‘‘wholesale markets for long-term sales independently administer auction-based of the bilateral markets that are of capacity and electric energy’’—out of wholesale markets for day-ahead and presumed to exist. ELCON argues that a the statute. The American Chemistry real-time energy sales. The Commission QF-specific review would establish that, Council states that for this reason, the stated in the NOPR that additionally, in many cases, QFs do not have Commission’s proposed interpretation with respect to subparagraph (A)(ii), the nondiscriminatory access to long-term contravenes the clear language of existence of bilateral long-term contracts bilateral markets whether in RTOs or section 210(m)(1)(A). for long-term sales of capacity and otherwise. ELCON states that 112. American Forest & Paper states energy indicates that there is a market. considerable evidence establishes that that bilateral contracts have always markets either are in their infancy (e.g., existed, but the Commission has never 55 In the NOPR the Commission noted that while Midwest ISO), or are not functioning determined that the mere existence of SPP and the CAISO, respectively are a Commission- approved RTO and ISO, they do not satisfy the vis-a`-vis long-term sales of capacity or bilateral contracts constituted a market, requirements of section 210(m)(1)(A) because energy. ELCON states that it will be particularly, where those contracts are neither has day-ahead markets. The Commission difficult for the Commission to sustain mostly between utilities and their stated, however, that any utility within SPP and on judicial review a generic finding that affiliates. CAISO may file an application with the Commission to seek relief from the mandatory ISOs and RTOs offer long-term markets purchase requirement under section 210(m)(1)(B) or 57 ELCON’s August 25, 2006 Supplemental (C), on a case-by-case basis. 56 NOPR at P 22. Comments at 8–9.
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113. The CCC states that the markets which flourish in all the ‘‘Day NYISO has been an ISO since 1998 and Commission must require an affirmative 2’’ RTOs. began ‘‘Day 2’’ operations in 1999. showing that buyers other than the These RTOs and ISOs are established c. Commission Determination utility are willing to purchase QF energy and operate ‘‘Day 2’’ wholesale markets, and capacity on a short-term and long- 116. Under section 210(m)(1)(A), the as required by subparagraph (A)(i), in term basis, including through long-term Commission must terminate the their respective regions. purchases of capacity before the requirement that an electric utility enter 119. CCC and the American purchase obligation is lifted. a new contract or obligation to purchase Chemistry Council argue that the 114. EEI, PJM, Constellation, Exelon, electric energy from a QF if the QF has Commission’s proposed findings with FirstEnergy, Montana-Dakota, National nondiscriminatory access to (i) respect to the Midwest ISO, PJM, ISO– Grid, PJM Transmission Owners, and independently administered, auction- NE, and NYISO markets are PPL support the Commission’s based day-ahead and real-time insufficiently supported by record preliminary finding that QFs wholesale markets for the sale of electric evidence. We find this argument interconnected with utilities that are energy; and (ii) wholesale markets for without merit. The day ahead and real members of the Midwest ISO, PJM, ISO– long-term sales of capacity and electric time markets are precisely those NE and NYISO have nondiscriminatory energy. contemplated by the words of section 117. We find that the Midwest ISO, access to those markets and that those 210(m)(A)(i) and, indeed, there is no PJM, ISO–NE, and NYISO satisfy section markets readily satisfy the section real dispute that they are Commission 210(m)(1)(A)(i) because the markets 210(m)(1)(A) criteria for removing the approved independently administered administered by these RTO/ISOs are, as 59 PURPA section 210 purchase obligation. entities, and that they operate auction- required by subparagraph (A)(i), EEI states that additional evidence of based day-ahead and real-time independently administered, auction- the scope of market opportunities for wholesale markets for the sale of electric based day-ahead and real-time QFs is seen in the increasing number of energy as represented pursuant to their wholesale markets for the sale of electric QFs filing for authority to sell at market- respective, Commission approved, energy. With respect to section 60 based rates in response to the tariffs. 58 210(m)(1)(A)(ii) and the requirement for 120. With respect to bilateral markets Commission’s recent Order No. 671. wholesale markets for long-term sales of EEI states that the QF’s argument against in these ISOs/RTOs, i.e., section capacity and electric energy, we find 210(m)(A)(ii), no party argues that long- the Commission’s proposal in essence is that, as proposed in the NOPR, the term contracts do not exist in these that markets must assure QFs will existence of bilateral long-term contracts markets or that QFs are precluded from receive the same amount of revenues for long-term sales of capacity and entering into them with willing that they would receive from mandatory energy is a sufficient indication of a buyers.61 The transmission access utility sales at avoided cost rates before market. As the Commission explained offered by RTOs allows suppliers the mandatory purchase requirement in the NOPR, it is reasonable to (including QFs) the opportunity to enter may be lifted. Exelon believes that the conclude that subparagraph (A)(ii) is into long-term bilateral contracts in a PJM markets are effective and offer met because bilateral long-term competitive wholesale market. RTOs nondiscriminatory opportunities for contracts are available to participants in have no incentive to favor one set of QFs and small power producers to sell the footprints of the Midwest ISO, PJM, suppliers over others in providing their output to entities other than the ISO–NE, and NYISO. Although there is transmission access. RTO footprints interconnecting utility. To facilitate no formalized market for such long-term encompass many different wholesale these small generators participating in contracts, nothing in the statute requires buyers, thus proving significant the RTO markets in the absence of a such an organized market. Rather, the opportunity for sellers to reach many mandatory purchase requirement, only requirement for organized markets different wholesale buyers. In addition, Exelon suggests that the Commission relates to subparagraph A(i), and the the organized markets operated by RTOs encourage utilities to work with the QFs requirement that there be auction-based facilitate long-term bilateral contracts and small power producers that qualify day-ahead and real-time markets. between sellers (including qualifying under state renewable resource 118. We disagree with those who programs to develop and implement a argue that because these markets are 59 See Midwest Independent Transmission System voluntary standard offer contract. premature or in their infancy, the Operator, Inc., 97 FERC ¶ 61,326 (2001) order on 115. EEI, PJM, Constellation, Exelon, Commission cannot relieve utilities of reh’g, 103 FERC ¶ 61,169 (2003); PJM FirstEnergy, Montana-Dakota, National Interconnection, L.L.C., 96 FERC ¶ 61,061 (2001). the purchase obligations. The relevant On December 20, 2002, in PJM Interconnection, Grid, PJM Transmission Owners, and issue under the statute is whether these L.L.C., 101 FERC ¶ 61,345 (2002), PJM was granted PPL also support the NOPR’s finding markets satisfy the requirements full, rather than provisional, RTO status. regarding bilateral contracts for long- enumerated above, not whether they are Independence was one of the matters considered in the 2002 Order; ISO New England, Inc., 106 FERC term sales of energy and capacity. PJM ‘‘perfect’’ today or are undergoing ¶ 61,280 (2004); Central Hudson Gas & Electric Co., states that the Commission reasonably reforms as they develop. Again, nothing 83 FERC ¶ 61,352 (1998), order on reh’g, 87 FERC concludes that the existence of in the statutory language suggests such ¶ 61,135 (1999). organized and transparent competitive a test, nor have its proponents provided 60 See Midwest Independent Transmission System markets for capacity and energy provide Operator, Inc., 108 FERC ¶ 61,163 (Midwest ISO, us with any clear demarcation to FERC Electric Tariff, Third Revised Volume No. 1, a platform for the development of determine when such a market is too Module C), order on reh’g, 109 FERC ¶ 61,157 competitive bilateral contracts in ‘‘premature’’ to qualify under section (2004), order on reh’g, 111 FERC ¶ 61,043 (2005), satisfaction of section 210(m)(1)A(ii) of 210(m)(A). Further, we note that the PJM Interconnection, L.L.C., FERC Electric Tariff, Sixth Revised Volume No. 1; New York EPAct 2005. EEI states that the test of Midwest ISO has been an RTO since Independent System Operator, Inc., FERC Electric section 210(m)(1)(A)(ii) can be and is 2001 and began ‘‘Day 2’’ operations (i.e., Tariff Original Volume No. 2. met by markets that provide auction-based, day-ahead markets) in 61 We also know from electric quarterly report opportunities for long term sales 2005. PJM has been an RTO since 2001 (EQR) filings by public utilities that there are long- pursuant to bilateral transactions— term contracts for long-term sales of capacity and and began ‘‘Day 2’’ operations in 2000. energy in each of the markets; those data are ISO–NE has been an RTO since 2004 available on the Commissions Web site. http:// 58 Supra note 15. and began ‘‘Day 2’’ operations in 2003. www.ferc.gov/docs-filing/eqr/data.asp.
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facilities) and wholesale buyers. First, seek clarification as to which entities application will have the burden of organized markets provide transparent are eligible for the exemption from the showing that all elements necessary for spot energy prices that can serve as a mandatory purchase requirement. For granting relief exist. reference in negotiating longer term example, MRES states that not all 3. Compliance Filing contract prices. Second, organized entities within the Midwest ISO markets reduce the costs to suppliers of footprint are transmission-owning a. NOPR making long-term bilateral supply electric utility members of Midwest ISO. 126. The Commission proposed that commitments. That is because whenever MRES states that it is currently a market to claim relief from the purchase a supplier is unable to produce the participant in the Midwest ISO, but not obligation, electric utilities that are energy required under the bilateral a member. MRES states that in addition, members of Midwest ISO, PJM, ISO-NE, contract (for example, because of an MRES has assumed the section 210 and NYISO will need to make outage), the supplier can easily acquire mandatory purchase requirement on compliance filings pursuant to section replacement energy from the organized behalf of its members, many of which 210(m)(3). market at a transparent and competitive are located within the Midwest ISO price. Moreover, even when the supplier footprint. b. Comments is physically capable of producing its 124. Progress states that while a case- 127. AEP and PJM Transmission contractually-required energy, the by-case analysis may be appropriate, it Owners argue that the Commission supplier can acquire the energy from the believes that utilities such as CP&L, that should remove the obligation to require RTO’s market whenever it is cheaper to have Commission-approved OATTs and a compliance filing for utilities located do so. Both of these factors reduce the are adjacent to and directly connected in one of the exempted RTO/ISOs. PJM cost to a supplier of entering into a long- with a ‘‘Day 2’’ RTO (such as PJM), Transmission Owners argue that it is not term bilateral contract. Furthermore, our should obtain a rebuttable presumption apparent that Congress intended the approach is consistent with the that the second prong of the test is met. Commission only to grant relief from language of section 210(m)(1)(A)(ii). As Progress states that there is no such mandatory purchase requirements discussed above, section 210(m)(1)(B) difference between a QF located within upon receipt of an application. AEP and provides for the submission of PJM and a QF located within CP&L’s PJM Transmission Owners contend ‘‘evidence of transactions within the service territory with respect to access there is nothing prohibiting the relevant market.’’ Because this language to short-term and long-term capacity Commission from granting blanket relief is not included in section 210(m)(1)(A), and energy wholesale markets. for all electric utilities in a particular our finding with respect to section c. Commission Determination RTO/ISO that meets the requirements of 210(m)(1)(A)(ii) is consistent with the section 210(m). PJM Transmission 125. The statute is clear that the Owners request, if compliance filings statute. We, therefore, find it reasonable obligation to purchase and thus relief of to conclude that Day 2 markets provide are ultimately required, to be allowed to the obligation resides with the electric make one filing on behalf of all the an opportunity to make long-term sales utility. For purposes of establishing a of capacity and electric energy and meet electric utilities in PJM. rebuttable presumption that QFs 128. EEI states that, instead of the criteria of section 210(m)(1)(A)(ii) as interconnected with certain utilities well as section 210(m)(1)(A)(i). compliance filings by utilities located have access to ‘‘Day 2’’ markets, we within the four ‘‘Day 2’’ markets, the 121. As to ELCON’s citation to a study think that a reasonable line to draw is by the State of Delaware finding that Commission may wish to require with the member utilities of the ‘‘Day 2’’ utilities to apply for relief from the competitive electric energy markets are RTO/ISOs. These utilities have turned not working well in Delaware, we find mandatory purchase requirement, in over the operation of their transmission accordance with section 210(m)(3) of it inapposite. The issue under the facilities to an independent entity that statute is not whether these organized PURPA. EEI states that utilities applying has no stake in the marketplace and will for relief would be entitled to rely on markets are perfect or, alternatively, ensure that all users of the transmission generic Commission findings (as the could be improved. As we stated above, system are treated on a Commission has proposed in the NOPR) all that is required by section nondiscriminatory basis and are that the four ‘‘Day 2’’ markets meet the 210(m)(A)(ii) is the presence of provided access to markets. We tests established in section 210(m)(1)(A) ‘‘wholesale markets for long-term sales recognize that other electric utilities and that a Commission-approved OATT of capacity and electric energy.’’ The may provide nondiscriminatory access is evidence of nondiscriminatory access Delaware report does not demonstrate to the ‘‘Day 2’’ markets. But for purposes to these markets under section that such a market does not exist. of applying a rebuttable presumption 210(m)(1). that QFs have nondiscriminatory access 2. Whether Membership in an RTO/ISO c. Commission Determination Is Necessary To Invoke the Rebuttable to the ‘‘Day 2’’ markets, we believe that Presumption of Access to ‘‘Day 2’’ it is reasonable to draw the line with 129. In light of the comments filed, Markets members of the Midwest ISO, PJM, ISO- we conclude that utilities in ‘‘Day 2’’ NE, or NYISO. Nevertheless, entities RTO/ISO markets should file a. NOPR that are not members of the Midwest applications pursuant to section 122. In the NOPR, the Commission ISO, PJM, ISO-NE, or NYISO may seek 210(m)(3), instead of the ‘‘compliance concluded that QFs interconnected with relief from the purchase obligation filings’’ proposed in the NOPR. We electric utilities that are members of pursuant to either section 210(m)(1)(B) believe that this will be more consistent Midwest ISO, PJM, ISO–NE, and NYISO or (C) pursuant to the procedures with the statute than the compliance have nondiscriminatory access to contained in § 292.310 of the filings proposed in the NOPR. In the markets described in section Commission’s regulations. Such section 210(m)(3) application, a utility 210(m)(1)(A). applications will be reviewed on an within a ‘‘Day 2’’ RTO/ISO will be electric utility-by-electric utility basis required to: (a) Show that it is a member b. Comments pursuant to the procedures contained in of a ‘‘Day 2’’ RTO; (b) provide 123. Missouri River Energy Services § 292.310 of the Commission’s information to enable QFs larger than 20 (MRES), a municipal, and the NRECA regulations. A utility making such an MW to seek to rebut the presumption
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that they have nondiscriminatory access assure nondiscriminatory and the terms ‘‘competitive,’’ ‘‘meaningful to the market; such information will be independent administration, and should opportunity,’’ and ‘‘evidence of a description of transmission constraints rely on this existing body of precedent transactions’’ suggest that Congress not otherwise publicly available, and if when making determinations pursuant intended waiver to occur in a non- publicly available, provide a specific to newly enacted section 210(m). auction based market only if it could be link to such information; and (c) Occidental argued that the NOPR established that QFs had the provide a list of affected interconnected incorrectly suggests that the opportunity to sell their output into QFs. With respect to the section Commission has discretion to deem an competitive wholesale markets to 210(m)(A) ‘‘Day 2’’ RTO/ISO markets, entity to be a ‘‘Commission-approved buyers other than the utility to which these applications, in conjunction with regional transmission entity’’ solely in the QF is interconnected. In the NOPR, the generic findings and rebuttable the context of a determination that the the Commission sought comment on presumptions adopted in this Final Rule QF is provided nondiscriminatory ways that section 210(m)(1)(B)(ii) could and discussed elsewhere, will allow us access in accordance with section be satisfied. The Commission asked if a to timely and fairly process applications 210(m)(1)(B)(i). It requests the demonstration that an organized power within the 90-day time period intended Commission to clarify, at a minimum, procurement process exists in which by Congress. that ‘‘Commission-approved regional QFs can participate would satisfy. C. Section 210(m)(1)(B) transmission entity’’ does not include b. Comments stand-alone electric utilities or Entergy’s 1. Definition of ‘‘Regional’’ for Purposes ICT. 134. AES Shady Point, Deere, Energy of Section 210(m)(1)(B)(i) Producers of California, Utah c. Commission Determination Association of Energy Users (UAE), and a. NOPR 132. In determining whether a Solid Waste of Palm Beach believe that 130. Section 210(m)(1)(B) requires the transmission entity is ‘‘regional,’’ we the existence of an organized power Commission to make a finding, among will not rely solely on the ‘‘scope and procurement process does not indicate other things, that a QF has regional configuration’’ standard as the presence of a competitive wholesale nondiscriminatory access to discussed in Order No. 2000 as one market. Occidental argues that the transmission and interconnection commenter suggests. Section Commission’s reference to a generic services provided by a Commission- 210(m)(1)(B) does not tie ‘‘regional’’ to ‘‘organized procurement process’’ lacks approved ‘‘regional transmission Order No. 2000 but rather leaves to the the specificity required in order to entity.’’ In the NOPR, the Commission Commission’s discretion whether to analyze whether it would satisfy any noted that amended section 210 does deem an entity ‘‘regional’’ and we will element of section 210(m)(1)(B)(ii) and not contain any express definition of make that determination on a case-by- omits the statutory requirement that QFs ‘‘regional transmission entity.’’ The case basis in response to applications have a meaningful opportunity to sell to Commission therefore explained in the filed by electric utilities pursuant to ‘‘buyers other than the utility to which NOPR that we have discretion in § 292.310 of the Commission’s the qualifying facility is interpreting section 210(m)(1)(B)(i) to regulations. Accordingly, we will not interconnected.’’ ELCON states that the deem an entity to be ‘‘regional.’’ The make a finding that Entergy’s ICT or a critical question is whether potential Commission listed factors, such as stand-alone electric utility would not be suppliers have access to other potential buyers apart from the monopsony buyer sufficient regional scope or deemed a ‘‘regional transmission entity’’ holding the request for proposals (RFP). configuration of the multiple discrete at this time. The NOPR laid out some of ELCON states that the Commission transmission systems the regional the factors the Commission may should seek a demonstration of transmission entity controls, to be consider in its determination, such as contractual sales of capacity or energy to considered when determining a sufficient regional scope or 62 utilities other than the interconnected ‘‘regional transmission entity.’’ configuration or the multiple discrete utility in response to RFPs. The UAE transmission systems and electric utility b. Comments argues that an organized procurement controls. In this Final Rule, an electric 131. American Forest & Paper, LEUG, process does not ensure fairness since utility claiming relief pursuant to and NISCO offer suggestions as to how utilities often control their own the Commission should define section 210(m)(1)(B) must set forth the procurement processes and can affect ‘‘regional’’ as it is used in section reasons that it meets the requirements of the outcome. The lack of an 210(m)(1)(B). LEUG suggests that the section 210(m)(1)(B)(i) in an application independently administered market Commission should use a similar made pursuant to § 292.310 of the makes it easy for a utility to select its standard in defining the term ‘‘regional’’ Commission’s regulations. own resource or a resource that it as it’s used in Order No. 2000. American 2. Section 210(m)(1)(B)(ii) prefers. UAE also states that QF Forest & Paper believes that the resources are likely to be eliminated in a. NOPR Commission should exercise the early rounds of the procurement process discretion it has under section 210 in 133. Section 210(m)(1)(B)(ii) requires by unreasonably stringent credit conformance with its observations, QFs to have access to competitive requirements. concerns and findings regarding the wholesale markets that provide a 135. Entergy and EEI contend that a scope and independence of RTOs and meaningful opportunity to sell capacity procurement process should constitute ISOs necessary to assure and energy on both a short- and long- ample evidence that QFs have access to nondiscriminatory access and term basis and energy on a real-time competitive wholesale energy markets. independence. American Forest & Paper basis to a buyer other than the utility to EEI states that the Commission would states that the Commission has which the QF is interconnected. The be correct in finding that QFs with extensive jurisprudence regarding its Commission is to consider, among other opportunities to participate in organized concerns surrounding the scope and the factors, evidence of transactions within power procurement processes have level of independence necessary to the relevant market in determining access to short-term and long-term ‘‘meaningful opportunity.’’ The markets for the sale of energy and 62 NOPR at P 16. Commission stated that, taken together, capacity. EEI states that roughly
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nineteen states already require some and (C), meaningless because the solicitation characteristics,66 and any form of competitive power procurement Commission has authorized market- other information about the process.63 EEI states that QF based sales in every region of the procurement process. This list is not commenters have submitted no continental United States. meant to be exhaustive, but rather evidence to disprove their ability to provides examples of the type of c. Commission Determination participate in these state-overseen information the Commission needs in processes. EEI states that competitive 138. The Commission in the NOPR set order to make a finding. procurements also are a feature of retail forth its interpretation of the statute and 140. SCE argues that the access programs and state renewable or sought comments on ways section ‘‘competitive’’ element of section resource portfolio programs. 210(m)(1)(B)(ii) could be satisfied. 210(m)(1)(B)(ii) could be met if the 136. Pacific Gas and Electric Specifically, the Commission asked if an Commission has authorized market- Company (PG&E) suggests the organized procurement process would based rate authority to the utility Commission should adopt a rebuttable meet the requirements of section seeking relief from the mandatory presumption of a ‘‘competitive 210(m)(1)(B)(ii). After reviewing the purchase requirement. We will not wholesale market’’ in which an comments received, we have decided make a generic finding as suggested by organized power procurement process not to make any generic findings SCE. When the Commission grants an exists in which QFs can participate. concerning whether procurement applicant market-based rate authority, it PG&E notes that the California processes might satisfy section examines an applicant’s generation legislature established a comprehensive 210(m)(1(B)(ii). Reflecting on parties’ market power potential. The procurement process to be administered comments and the Commission’s own competitive element of section and overseen by the California Public experience with utilities’ procurement 210(m)(1)(B)(ii) is not concerned with Utilities Commission (CPUC). PG&E processes leads us to conclude that the how much generation a utility owns or states that load serving entities must processes are complex and not uniform. its ability to exercise generation seller prepare a procurement plan which Thus, we cannot find that simply market power, but rather, whether the contains a process for utility requiring an organized procurement wholesale market provides a meaningful procurement and CPUC approval of process without elaboration would meet opportunity for a QF to sell its capacity procurement strategies. PG&E claims the requirements of the statute. and energy to a buyer other than the that California’s procurement process Accordingly, we will not make a generic utility to which the QF is ensures QFs have fair access to this finding nor establish a rebuttable interconnected. process. SCE argues that QFs have presumption, as PG&E and SCE suggest. robust opportunities to compete in 3. Case-by-Case Determinations for As discussed in a later section, the competitive solicitations issued by Subparagraphs (B) and (C) Commission will entertain applications IOUs. SCE notes that its power for relief of the mandatory purchase a. NOPR procurement solicitations that are 141. In the NOPR, the Commission conducted pursuant to California’s requirement pursuant to section proposed to determine on a case-by-case Renewable Portfolio Standard are open 210(m)(1)(B) on a case-by-case basis basis, rather than generically, whether a to generators as small as one megawatt. pursuant to the procedures specified in 137. SCE suggests the Commission section 292.310 of the Commission’s utility has met the requirements of should make a generic finding that if the regulations. The only rebuttable sections 210(m)(1)(B) and 210(m)(1)(C) Commission has authorized market- presumption that will apply in the for relief from its mandatory purchase based rate authority for any seller in a context of applications under section requirement. The Commission also market then that market should be 210(m)(1)(B) (as well as (C)) is the proposed to allow joint applications to competitive enough to satisfy presumption that QFs 20 MWs or below be filed by several utilities in a region subparagraph (B)(ii). Several do not have nondiscriminatory access to if the applications for relief present commenters oppose SCE’s market-based the relevant markets. common issue of law and fact. The rate proposal and request that the 139. The Commission, however, will NOPR concluded that utilities would be Commission reject it. The CCC argues not rule out the possibility of an required to file such applications for that SCE’s arguments focus solely on the organized procurement process relief with the Commission pursuant to issue of whether sellers in a given satisfying some or all of the section 210(m)(3), which the market are able to exercise market requirements of section 210(m)(1)(B)(ii). Commission proposed to implement in power and fails to address the extent to Should an electric utility seek such a section 292.310 of its regulations. which utilities are able to exercise finding in its application, it is b. Comments monopsony buying power given their incumbent upon the utility to fully 142. No comments were filed role as the only load serving entities demonstrate that the procurement opposing the NOPR’s proposal. (LSEs) with the ability and potential process satisfies one or all of the Constellation seeks clarification as to willingness to buy power on a long-term elements of section 210(m)(1)(B)(ii).64 how the Commission will treat current basis or in significant quantities. Deere The utility must support its application Day 1 or non-RTO markets which may, contends that market-based rate with a detailed description of how the in the future, become ‘‘Day 2’’ markets. authority is focused on the seller and its procurement process is designed, how Constellation wants any future ‘‘Day 2’’ attributes, whereas section 210(m) is winning bids are selected, evidence of market to be analyzed on a case-by-case focused on the QF and its ability to past solicitations and winning bids,65 access a market. Occidental adds that basis pursuant to section 210(m)(3). 143. EPSA supports a case-by-case such a finding would render the 64 All the elements of section 210(m)(1)(B)(ii) approach for subparagraphs (B) and (C) distinction between ‘‘competitive must be satisfied whether it is through an organized wholesale markets,’’ as used in procurement process or by some other means or a provided that an individual QF can subparagraph (B)(ii), and ‘‘wholesale combination. 65 The Commission would be particularly 66 Solicitation characteristics refers to the contract markets,’’ as used in subparagraphs (B) interested in whether QFs have participated in the term, type of service requested, dispatchability, the solicitations and whether QFs have been selected as power terms and conditions, the non-power terms 63 EEI Initial Comments at 44. a winning bidder. and conditions, etc.
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rebut utility’s application. EPSA also and that QFs 20 MWs or below do not 2. Comments argues that utilities should be required have nondiscriminatory access to 150. NRECA states that some non- to file specific contract information that markets. public utility cooperatives do not have would support the premise that there 146. While we will not institute reciprocity tariffs however, a number of are ‘‘competitive wholesale markets that another rulemaking to address whether these non-public electric utilities have provide a meaningful opportunity to sell a new ‘‘Day 2’’ RTO/ISO satisfies the adopted OATTs based on the capacity, including long-term, short- statutory criteria for a utility to claim Commission’s pro forma OATT, and term and real-time sales to buyers other relief from the requirement that it enter have provided nondiscriminatory access than the utility to which the qualifying into new contracts or obligations with to third parties for years. NRECA states facility is interconnected.’’ QFs within the markets, we note that that they too should be deemed to 144. LEUG, NISCO, and Occidental the 90-day proceedings provided for in provide nondiscriminatory access on a seek clarification in the Final Rule that section 210(m)(3) of PURPA and case-by-case basis, or they should at Entergy’s ICT does not satisfy the § 292.310 of our regulations, provide a least be accorded a rebuttable requirements of section 210(m)(1)(B). very compressed period for making the presumption that they provide such These commenters state that access to complex determinations that a regional service. section 210(m)(1)(B) markets does not market satisfies the statutory criteria. 3. Commission Determination exist in Louisiana today, and will not Accordingly, for utilities that wish to result from Entergy’s ICT and weekly obtain a regional generic determination 151. We decline to establish a procurement process proposals. The that a market satisfies the criteria of rebuttable presumption of commenters state that an ICT can not section 210(m)(1)(A), we will entertain nondiscriminatory access here for non- satisfy section 210(m)(1)(B)(i) because declaratory orders to make such public utilities which may have adopted Entergy’s ICT proposal calls for Entergy determinations. If a generic transmission tariffs that are based on the to remain the owner and operator of the determination is made in a declaratory Commission’s pro forma OATT but are transmission system and continue to order context, the utility members of the not on file with the Commission. The have ultimate responsibility for market would then be obligated to file statute clearly states that the providing transmission service. for relief from the requirement that they Commission must find that the QF has nondiscriminatory access to specific c. Commission Determination purchase from QFs on a utility specific basis pursuant to section 292.310 of our markets before the purchase obligation 145. The Commission adopts the regulations before the Commission may be lifted. While the Commission NOPR’s proposal to determine on a would terminate the requirement that appreciates that some non-public case-by-case basis in response to the electric utility purchase electric cooperatives have adopted OATTs applications filed pursuant to section energy from QFs. based on the Commission’s pro forma 292.310 of the Commission’s regulations OATT, the Commission has not had 147. For purposes of obtaining whether an electric utility has met the opportunity to review these nor has the regulatory certainty earlier rather than requirements of sections 210(m)(1)(B) public, including any affected QF. We later, it is also possible that a QF may and 210(m)(1)(C) for relief from its therefore believe that it is more want to seek a declaratory order that, mandatory purchase requirement. We appropriate for the Commission to based on its specific circumstances, it clarify for EPSA that individual QFs evaluate whether QFs interconnected does not have nondiscriminatory access may file comments opposing a utility’s with such utilities have to markets. We will entertain such section 210(m)(3) application for relief nondiscriminatory access to a market declaratory order requests. If a QF pursuant to subparagraphs (B) and (C).67 defined by section 210(m)(1)(A), (B), or obtains such an advance declaratory We will also clarify for Constellation (C) on a case-by-case basis. Non-public order, it may file the order in response that any current ‘‘Day 1’’ market or non- utilities seeking relief from the to a utility’s application to be relieved RTO market that becomes a ‘‘Day 2’’ mandatory purchase requirement may of the mandatory purchase obligation market after issuance of this Final Rule file an application pursuant to § 292.310 under section 292.310 of the will not be addressed generically in a of the Commission’s regulation and may Commission’s regulations. rulemaking but will be addressed on a include their tariffs in support of their case-by-case basis. This is consistent 148. We will not grant the three applications. with what the Commission proposed in commenters’ request that we clarify in E. California Independent System the NOPR. The Commission proposed, the Final Rule that Entergy’s ICT does Operator Corporation and we adopt here, that all issues not satisfy the requirements of section relating to non-RTO/ISOs and RTO/ISOs 210(m)(1)(B). Rather, consistent with the 1. NOPR that do not have both auction-based approach adopted herein, we will consider Entergy’s ICT on a case-by-case 152. In the NOPR, the Commission real-time and day-ahead markets will be did not make a preliminary finding that addressed on a case-by-case basis, basis should Entergy decide to file an application for relief pursuant to section the California region operated by the pursuant to section 210(m)(3) as CAISO met the requirements of PURPA implemented by the Commission in 210(m)(3) and § 292.310 of the Commission’s regulations. section 210(m)(1). The Commission did § 292.310 of the Commission’s recognize that the CAISO is a regulations. The only generic finding in D. Section 210(m)(1)(C)—Nonpublic Commission-approved ISO, but that the this Final Rule that will apply to case- Utilities requirements of section 210(m)(1)(A) by-case determinations are the 1. NOPR have not been satisfied because the rebuttable presumptions that the OATT CAISO does not have a day-ahead and interconnection rules provide 149. The NOPR proposed that there be market. The Commission noted that any nondiscriminatory access to markets, a rebuttable presumption that a utility utility within the CAISO footprint may provides nondiscriminatory access if it file an application with the Commission 67 This also applies to section 210(m)(3) applications for relief pursuant to section has an Order No. 888 OATT on file with to seek relief from the mandatory 210(m)(1)(A), which is discussed in another part of the Commission or a Commission- purchase requirement pursuant to the Final Rule. approved reciprocity tariff. sections 210(m)(1)(B) or (C).
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2. Comments power in the existing wholesale markets transmission entity and administered 153. SCE and PG&E submitted and a lack of a robust, functioning pursuant to an open access transmission comments requesting that the wholesale market in California tariff that affords nondiscriminatory Commission find that the CAISO will discourages cogenerators from installing treatment to all customers. In the NOPR, meet the requirements of section new generation. SCE disputes CCC’s the Commission interpreted section 210(m)(1)(A) once the CAISO’s Market representation of the Energy Report. 210(m)(1)(B)(i) to mean that QFs must 156. Independent Energy Producers Redesign and Technology Upgrade have access to transmission and Association of California (Independent Tariff (MRTU Tariff) is effective.68 SCE interconnection service pursuant to a Energy Producers) states that the MRTU and PG&E note that the MRTU Tariff Commission-approved OATT and has yet to be implemented let alone filing demonstrates that the CAISO interconnection rules and provided by analyzed to ensure it is operating as 70 region will have the requisite features to an entity that is regional in scope. The designed and in a manner that the satisfy section 210(m)(1)(A)(i), CAISO has a Commission-approved CAISO itself has determined sufficient OATT that has been amended to specifically a day-ahead market. SCE to remedy the market deficiencies it has argues that the features described in the incorporate the interconnection identified. Independent Energy requirements of Order No. 2003. Thus, MRTU Tariff compare with those of Producers also notes that the California other regions for which the Commission in order to make a finding that the market cannot provide the CAISO satisfies section 210(m)(1)(B)(i), is prepared to make generic findings. nondiscriminatory access required SCE also states there are bilateral long- the Commission would have to find that because projects smaller than 1 MW are the CAISO is a ‘‘regional transmission term contracts in the CAISO region excluded by rule from participation. today. Therefore, the CAISO region entity.’’ We noted in the NOPR that Independent Energy Producers further amended PURPA section 210 does not meets section 210(m)(1)(A)(ii). The notes CAISO’s intent to subject existing California Public Utilities Commission define ‘‘regional transmission entity,’’ QFs with existing interconnections to and therefore, the Commission has (CPUC) and PG&E also request a finding renewed interconnection studies. that once the Commission has discretion to deem an entity to be determined that CAISO has met the 3. Commission Determination ‘‘regional’’ based on factors such as sufficient regional scope or requirements of section 210(m)(1)(A), 157. Certain commenters request that configuration of the multiple discrete utilities participating in CAISO need the Commission make a generic finding transmission systems it controls. The only make a ministerial filing to be that the CAISO will meet the CAISO offers transmission and granted a waiver by the Commission. requirements of section 210(m)(1)(A) interconnection services throughout the 154. PG&E, SCE and the EEI request once the CAISO’s MRTU Tariff filing state of California over the transmission a generic finding that the CAISO becomes effective. According to the systems of several electric utilities. We satisfies section 210(m)(1)(B)(i), and CAISO, the MRTU Tariff provides for find that California is large enough in thus, a utility interconnected to the operation of a day-ahead market, which CAISO meets section 210(m)(1)(B)(i). is the missing element in meeting the size and configures several discrete EEI notes that the Commission has ruled requirements of section 210(m)(1)(A). It transmission systems for the CAISO to that the CAISO Tariff provides would be premature for the Commission be considered a ‘‘regional transmission nondiscriminatory access to the ISO to make such a generic finding in this entity.’’ Accordingly, the Commission controlled grid. rulemaking proceeding. The CAISO finds that the CAISO satisfies section 155. The CCC objects to the NOPR’s filed its proposed MRTU Tariff on 210(m)(1)(B)(i). A member electric suggestion that California could qualify February 9, 2006, in Docket No. ER06– utility of the CAISO may rely on this for termination of the PURPA purchase 615–000, and requested an effective date finding in its application to be relieved obligation once a day-ahead market of November 1, 2007. While the of the obligation to enter into new starts operating. It argues that such a Commission conditionally approved contracts to purchase QF electric suggestion ignores the realities of the CAISO’s MRTU Tariff on September 21, energy. We will not, however, make any California market. CCC contends that 2006,69 the tariff will not become findings with regard to section QFs continue to have difficulty finding effective until November 1, 2007, as 210(m)(1)(B)(ii). Thus, electric utilities meaningful opportunities to sell their requested. Until there is a functioning that are members of the CAISO seeking output in California due to utilities’ ‘‘Day 2’’ RTO/ISO in California, the relief from the mandatory purchase general reluctance to execute contracts Commission is unable to make the requirement will need to file an with QFs and a lack of viable findings required by section application pursuant to section alternatives to the utility purchaser. It 210(m)(1)(A) for termination of the 210(m)(3) and § 292.310 of the states that merely adding an organized mandatory purchase requirement. Commission’s regulations with the day-ahead market will not resolve these However, for utilities that wish to obtain Commission and make the showings problems. The CCC points to a a regional generic determination that a required by section 210(m)(1)(B)(ii) in California Energy Commission’s 2005 market satisfies the criteria of section order to be relieved of the PURPA Integration Energy Policy Report (Energy 210(m)(1)(A), we will entertain requests purchase obligation. The presumption Report) as support for the position that for declaratory orders to make such that QFs 20 MWs or below do not have QFs do not have meaningful determinations. nondiscriminatory access to markets opportunities to sell their power in 158. Certain commenters request that will apply. California. According to CCC, the the Commission make a finding that the F. Southwest Power Pool Energy Report finds that cogenerators CAISO satisfies section 210(m)(1)(B)(i). have few opportunities to sell their Section 210(m)(1)(B)(i) requires a QF to 1. NOPR have nondiscriminatory access to 159. In the NOPR, the Commission 68 The CAISO filed its proposed MRTU Tariff on transmission and interconnection did not make a preliminary finding that February 9, 2006, in Docket No. ER06–615–000, and services that are provided by a the region operated by the SPP meets requested an effective date of November 1, 2007. The Commission conditionally accepted MRTU on Commission-approved regional the requirements of PURPA section September 21, 2006. California Independent System Operator Corporation, 116 FERC ¶ 61,274 (2006). 69 Supra note 67. 70 NOPR at P 16.
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210(m)(1). The Commission did market. The Commission, on September finding that QFs in the SPP market have recognize that the SPP is a Commission- 26, 2006, acted on rehearing requests nondiscriminatory access to approved RTO, but that the concerning SPP’s proposed tariff ‘‘competitive’’ wholesale markets that requirements of section 210(m)(1)(A) revisions to implement an imbalance provide a ‘‘meaningful opportunity’’ to have not been satisfied because the SPP market,71 which will not be functional make sales to buyers other than the does not operate a day-ahead market. until December 1, 2006, at the earliest. electric utility to which the QFs are The Commission noted that any utility Thus, it would be premature for the interconnected. within the SPP footprint may file an Commission to make such a finding in 166. Moreover, as discussed above, application with the Commission to this rulemaking proceeding. Once SPP’s the Commission will make seek relief from the mandatory purchase market is operational, electric utilities determinations on a case-by-case basis, requirement pursuant to sections who are members of SPP may file, rather than generically, for utilities 210(m)(1)(B) or (C). individually or jointly, an application seeking relief from the mandatory for relief of the PURPA purchase 2. Comments purchase requirement pursuant to obligation pursuant to section 210(m)(3) sections 210(m)(1)(B) and (C). 160. OG&E requests the Commission and section 292.310 of the Accordingly, OG&E, AEP, or any other find that utilities located in the SPP Commission’s regulations. electric utility may file with the satisfy section 210(m)(1)(A). OG&E 164. OG&E and AEP also request the Commission an application for relief notes that the SPP filed revisions to its Commission to make a determination pursuant to section 210(m)(3) of PURPA OATT to implement a real-time that electric utilities operating in the and § 292.310 of the Commission’s imbalance market (EIS Market). The EIS SPP satisfy section 210(m)(1)(B). These regulations and make the showings Market will enable market participants commenters also request a finding that required by section 210(m)(1)(B)(ii) in to undertake both day-ahead and real- the SPP OATT satisfies the order to be relieved of the PURPA time transactions. requirements of section 210(m)(1)(B)(i). purchase obligation. The rebuttable 161. OG&E and AEP also request the With regard to the latter request, section presumption that QFs 20MW or below Commission find that SPP utilities 210(m)(1)(B)(i) requires a QF to have do not have nondiscriminatory access to satisfy section 210(m)(1)(B). The SPP is nondiscriminatory access to markets will apply. a Commission-approved RTO and the transmission and interconnection SPP OATT affords all customers with services that are provided by a G. ERCOT nondiscriminatory treatment and Commission-approved regional 1. Comments complies with all currently-effective transmission entity and administered Commission policies and regulations as pursuant to an OATT that affords 167. Reliant, TXU Energy, Power and they apply to the development of an nondiscriminatory treatment to all Wholesale Companies (TXU) and the OATT. Therefore, OG&E and AEP ask customers. In the NOPR, the Public Utility Commission of Texas the Commission to find that the SPP Commission interpreted section (PUCT) request that the Commission OATT satisfies the criteria of section 210(m)(1)(B)(i) to mean that QFs must extend its preliminary finding regarding 210(m)(1)(B)(i). OG&E states that section have access to transmission and approved RTO/ISOs to include ERCOT 210(m)(1)(B)(ii) is satisfied because load interconnection service pursuant to a through a generic finding under section serving entities in SPP actively solicit Commission-approved OATT and 210(m)(1)(C) of section 210(m) rather power supplies using competitive interconnection rules provided by an than requiring case-by-case review. bidding procedures. OG&E notes that entity that is regional in scope.72 SPP Direct Energy filed reply comments in the Oklahoma Corporation Commission provides transmission and support of this request. requires electric public utilities interconnection service pursuant to a 168. Reliant explains that, while the providing retail service in Oklahoma to Commission-approved OATT that has ERCOT ISO does not meet all the procure long-term electric generation been amended to incorporate the criteria under section 210(m)(1)(A), the through competitive bidding. AEP notes interconnection requirements of Order region is competitive in compliance that Louisiana established competitive No. 2003. As noted above, SPP is a with Texas law under the Public Utility bidding rules that require a utility to Commission-approved RTO, and, Regulatory Act (PURA) and was follow a formal RFP process for the therefore, SPP satisfies the ‘‘regional certified as an ISO by the Public acquisition of generation resources and transmission entity’’ requirement of Utilities Commission of Texas. PURA for purchases of capacity and/or energy section 210(m)(1)(B)(i). Accordingly, the provided for the creation of a regional of more than one year in duration. Commission finds that SPP meets the independent organization to perform Based on these aspects, OG&E and AEP criteria of section 210(m)(1)(B)(i). A key functions to facilitate wholesale and argue that the SPP region satisfies member electric utility of the SPP may retail competition similar to those the section 210(m)(1)(B). rely on this finding in its application to Commission prescribed for RTOs in 162. Deere disagrees with OG&E and be relieved of the obligation to enter Order No. 2000. AEP and argues that the SPP market has into new contracts to purchase QF 169. Reliant describes the features of not yet satisfied the criteria for relief electric energy. the ERCOT market without explicitly from the PURPA mandatory purchase 165. Turning our attention to whether suggesting that it meets the criteria of requirement. Deere notes that SPP’s EIS electric utilities operating in the SPP section 210(m)(1)(A). Reliant notes that Market implementation has been market satisfy section 210(m)(1)(B), we ERCOT is independently administered. delayed until at least October 2006, and decline to make such a finding in this While it does not administer a therefore, it has not been ‘‘road tested.’’ rulemaking proceeding. As an initial centralized day-ahead market or forward market, ERCOT has a real-time market 3. Commission Determination matter, the Commission does not have the evidence of transactions, as required sufficient to support a robust market- 163. Similar to the determination we by the statute, to make the requisite based day-ahead market for sales of made for the CAISO, the Commission electricity. The ERCOT ISO supports the will not make the findings required by 71 Southwest Power Pool, Inc., 116 FERC ¶ 61,289 scheduling of bilateral capacity and section 210(m)(1)(A) for termination (September 26, 2006). energy contracts (both short- and long- until there is a functioning ‘‘Day 2’’ 72 NOPR at P 16. term) by qualified scheduling entities
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and conducts day-ahead auctions for markets described in section may use the balancing energy market to ancillary services. 210(m)(1)(A). sell energy in the real-time at the market 170. Reliant asserts that the ERCOT 174. The PUCT states that wholesale clearing price of energy. In addition, region meets the criteria for electric competition has been in effect in ERCOT operates a day-ahead and real- utility relief from the purchase ERCOT under open-access rules time market for ancillary services. obligation under 210(m)(1)(C) because prescribed by the PUCT since 1996. ERCOT does not administer a access to a sufficiently competitive According to the PUCT, these open centralized day-ahead market for market for QFs to sell their power access rules ensure access to the energy, but Reliant submitted testimony currently exists in ERCOT and has been transmission and distribution systems that ERCOT’s real-time market has been affirmed by the PUCT. Reliant contends for all buyers and sellers of electricity sufficient to support a robust market- that this access parallels the on nondiscriminatory terms. PUCT based (as opposed to administratively- nondiscriminatory access to competitive states that the ERCOT system is created) day-ahead market for sale of markets in Commission-approved RTOs administered independently of any electricity. and ISOs. It believes that the PUCT’s individual market participant. Utility 178. As part of its filing, Reliant certification of ERCOT as a competitive and non-utility sellers have submitted the ERCOT protocols to market and the ‘‘operational reality’’ of nondiscriminatory access to wholesale support its claim that QFs have a robust wholesale and retail market in transmission service. Scheduling nondiscminatory access to markets that ERCOT further support this conclusion. protocols afford non-discriminatory are of equal competitive quality to 171. Reliant argues that the most access to all customers. In ERCOT, there administratively efficient application of is no ‘‘native load preference,’’ and thus section 210(m)(1)(A) markets. These section 210(m)(1) would be to extend protocols are not a FERC tariff. They are, QFs receive the same quality of access 73 the Commission’s preliminary finding to ERCOT markets as all other market however, approved by the PUCT. In its regarding its approved RTOs or ISOs to participants. In addition, ERCOT uses a comments, the PUCT states that the the ERCOT region through a generic market-based congestion management market that has developed in ERCOT is finding under section 210(m)(1)(C). This system. ERCOT’s zonal model uplifts sufficiently robust that QFs operating would allow ERCOT entities to submit local congestion costs system-wide, within ERCOT now rely on the market ministerial applications under this while directly assigning the cost of to make sales and no longer rely on the section and to have the application relieving inter-zonal congestion. ERCOT PURPA purchase obligation to make treated as a compliance filing under conducts auctions that allow market sales. § 292.310(a) of the proposed rule. It participants to hedge their risk by 179. As noted above, Reliant, TXU would allow the Commission to avoid buying financial transmission rights on and the PUCT have asked that the the filing of separate applications from commercially significant flowgates. Commission make a generic finding that electric utilities located in a region that 175. On January 1, 2002, retail QFs in ERCOT have nondiscriminatory has robust wholesale and retail competition in the electric market began access to markets that satisfy section competition. Reliant states that for all customers of investor-owned 210(m)(1)(C). No commenters have extension of the Commission’s finding utilities (IOU) in the ERCOT region. As opposed this request. Based on our is appropriately based on the of October 2004, there were 85 retail review of the ERCOT protocols, the demonstrated competitive market electric providers (REPs) certified by the support of the PUCT for termination of conditions existing in the ERCOT PUCT. The PUCT states that with the the purchase obligation in ERCOT, and region, in which QFs have the numerous REPs in the ERCOT market- the lack of opposition to our making a opportunity to sell energy and capacity place QFs have ample opportunity, generic finding, the Commission finds to buyers other than the utilities to equal to that of all other generators in that: (1) there is a rebuttable which they are interconnected. TXU the marketplace, to competitively presumption that QFs larger than 20 supports Reliant’s positions for the same procure contracts for the output of their MW operating in ERCOT have reasons. facilities. nondiscriminatory access to markets,74 172. The PUCT adds that wholesale 176. According to the PUCT, QFs in and (2) the markets in ERCOT satisfy the competition has been in effect in ERCOT have ample opportunity to sell criteria of section 210(m)(1)(C) in that ERCOT under open-access rules both firm and non-firm power. Power is they are markets of comparative prescribed by the PUCT since 1996. It sold to REPs in the ERCOT market states that, on January 1, 2002, retail primarily through bilateral contracts of 73 Texas State law requires states: ‘‘The competition in the electric market began varying lengths of time. While ERCOT commission shall ensure that an electric utility or for all customers of investor-owned operates a real-time balancing energy transmission and distribution utility provides utilities in the ERCOT region. The PUCT market, bilateral transactions permit a nondiscriminatory access to wholesale transmission buyer and seller to come to mutually service for qualifying facilities, exempt wholesale also states that, as of October 2004, there generators, power marketers, power generation were 85 retail electric providers agreed to terms with a greater degree of companies, retail electric providers, and other certified by the PUCT, with 55 of those price certainty than in the balancing utilities or transmission and distribution utilities.’’ actively serving customers. market and the majority of transactions Public Utility Regulatory Act, TEX. UTIL. CODE in ERCOT take place pursuant to ANN. 35.0004 (PURA). 2. Commission Determination 74 QFs may rebut this presumption by making a bilateral transactions. demonstration by making a demonstration that: (i) 173. The information Reliant provides 177. In ERCOT, QFs have the The QF has certain operational characteristics that with regard to ERCOT supports a opportunity to sell in an organized effectively prevent the QF’s participation in a finding that QFs have access to the energy market. ERCOT’s balancing market; or (ii) a QF lacks access to markets due to transmission constraints. An existing QF can show transmission and distribution systems energy market is an independently that it is located in an area where persistent so that they have access to markets in administered, aution-based, real time transmission constraints in effect cause the QF to ERCOT; the information also supports a market and provides cogeneration QFs have neither physical nor financial access to finding that the markets in ERCOT an opportunity to sell in the electric markets outside a persistently congested area and there is not a sufficient opportunity to redispatch satisfy the criteria of section market while fulfilling contractual around the constraint or to sell the QF output or 210(m)(1)(C) in that they are of obligations to provide steam to their capacity within the area on a short-term and/or comparable competitive quality as the thermal hosts. QFs, as well as others, long-term basis because of the constraint.
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competitive quality to markets met.’’ 75 Prior to the issuance of the proposed § 292.310(c)(4). We agree that described in section 210(m)(1)(A). NOPR, the Commission dealt with two an applicant would not necessarily 180. Electric utilities operating within section 210(m)(3) applications.76 In know about QF developers that have ERCOT may make a filing to be relieved Alliant, the Commission explained its initiated state avoided cost proceedings of the purchase obligation pursuant to interpretation and application of that do not involve the applicant. Nor section 292.310 of the regulations. The ‘‘notice, including sufficient notice to did we intend for applicants in this rebuttable presumption that QFs 20 MW potentially affected [QFs].’’ The situation to identify such QF or smaller lack nondiscriminatory Commission clarified that an applicant developers. We find PSNM’s proposed access shall be applicable to QFs in would be required to identify all revision adds clarity to § 292.310(c)(4) ERCOT. Electric utilities may rebut that potentially affected QFs in any section and it is consistent with the presumption on the same grounds as 210(m)(3) application. The Commission Commission’s interpretation of ‘‘all electric utilities in other markets rebut also listed five categories of facilities potentially affected QFs.’’ Accordingly, the presumption. that would constitute ‘‘all potentially we will modify § 292.310(c)(4) to state: affected QFs.’’ In the NOPR, the ‘‘(4) The developers of facilities that H. Section 210(m)(2)—Revised Purchase Commission proposed to incorporate have pending state avoided cost and Sale Obligation for New this interpretation of ‘‘sufficient notice’’ proceedings involving the applicant; Cogeneration Facilities and ‘‘all potentially affected QFs’’ in and’’. 181. Section 210(m)(2)(A) reads: new § 292.310(b) and (c) of the 188. We disagree with SCE’s notion REVISED PURCHASE AND SALE Commission’s regulation. that ‘‘all potentially affected QFs’’ will receive sufficient notice through the OBLIGATIONS FOR NEW FACILITIES—(A) b. Comments After the date of enactment of this Federal Register notice process. While subsection, no electric utility shall be 185. PSNM is concerned with the statutory language does not required pursuant to this section to enter into requiring notice by applicants seeking explicitly state that the ‘‘notice, a new contract or obligation to purchase from relief from the purchase obligation to including sufficient notice’’ shall be or sell electric energy to a facility that is not developers of facilities that have actual notice, the Commission an existing qualifying cogeneration facility pending state avoided cost proceedings nonetheless believes its statutory unless the facility meets the criteria for and any other QFs that the applicant requirement is best met by providing all qualifying cogeneration facilities established reasonably believes to be affected by its potentially affected QFs, many of which by the Commission pursuant to the petition. Specifically, it states that the rulemaking required by subsection (n). are small entities that do not regularly applicant seeking relief may not read the Federal Register, with actual 182. In the NOPR the Commission necessarily be aware of all of the entities notice. stated that this provision reinforces the falling within these classifications. requirement that new qualifying PSNM recommends that the 2. Filing Fee cogeneration facilities must satisfy the Commission revise the proposed a. NOPR section 210(n) criteria for new § 292.310(c)(4) to state: ‘‘developers of 189. Section 210(m)(3) states, in qualifying cogeneration facilities. The facilities that have pending state relevant part, that any electric utility Commission proposed to include this avoided cost proceedings involving the may file an application for relief from language in § 292.309(d) of the proposed applicant.’’ the mandatory purchase requirement. In regulations. There were no comments 186. SCE is concerned with proposed the NOPR, the Commission proposed objecting to this proposal, and the § 292.310(b), (c)(2) and (c)(5). It states that utilities seeking relief from the Commission will adopt the NOPR’s that these categories may capture too mandatory purchase requirement would proposal. The language proposed by the broad a category of entities and thus need to file an application pursuant to Commission is adopted in this Final lead to needless debates over the scope section 210(m)(3). Rule as § 292.309(h) of the of notice provided. It states that in any Commission’s regulations. case uncertified QFs and certified QFs b. Comments 183. Section 210(m)(1)(B) defines the not in the service territory of the 190. SCE seeks confirmation that an term ‘‘existing qualifying cogeneration applicant, as well as all other interested application filed pursuant to section parties, will receive sufficient notice facility.’’ The Commission proposed a 210(m)(3) is not subject to Rule 207.77 through the Federal Register notice definition of ‘‘existing qualifying SCE argues that the statute indicates process. SCE argues that the relevant cogeneration’’ in § 292.309(b)(1) of the that the filing is an ‘‘application’’ and statute requires sufficient notice, not proposed regulations. There were no thus should be subject to Rule 204,78 actual notice. comments objecting to the proposal. The which does not require the payment of proposed language is adopted in this c. Commission Determination a fee. Final Rule as § 292.309(i). 187. The Commission will adopt the c. Commission Determination I. Section 210(m)(3)—Commission NOPR’s proposal to incorporate its 191. SCE is the only commenter to Review interpretation of ‘‘sufficient notice’’ and seek clarification on whether or not a ‘‘all potentially affected QFs’’ as 1. Sufficient Notice filing fee is associated with a section described in Alliant with one 210(m)(3) application. We find that no a. NOPR modification. PSNM points out that an applicant may not be aware of state filing fee shall apply to section 184. Section 210(m)(3) states, in 210(m)(3) applications. relevant part, that ‘‘after notice, avoided cost proceedings that do not including sufficient notice to potentially involve the applicant and recommends J. Section 210(m)(4)—Reinstatement of affected [QFs], and an opportunity for adding ‘‘involving the applicant’’ to Obligation to Purchase comment, the Commission shall make a 192. In the NOPR, the Commission 75 final determination within 90 days of 16 U.S.C. 824a–3(m)(3) (emphasis added). proposed § 292.311 to the Commission’s 76 See Alliant Energy Corporate Services, Inc., 113 such application regarding whether the FERC ¶ 61,024 (2005) (Alliant); Montana-Dakota conditions set forth in subparagraph (A), Utilities Co., 113 FERC ¶ 61,045 (2005) (Montana- 77 18 CFR 385.207. (B), or (C) of paragraph (1) have been Dakota). 78 18 CFR 385.204.
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regulations which is identical to QFs have available at least two 3. Commission Determination statutory language of section 210(m)(4). competing suppliers who are not 200. We clarify that lifting of the The Commission viewed section affiliated with the utility before PURPA obligation to purchase QF 210(m)(4) as an opportunity for a QF, a relieving the utility of its sales electricity for a particular utility does state agency, or any affected person to obligations under section 210(m)(5). not relieve such utility of its obligation seek to reinstate the purchase obligation They assert that this is required by the to sell supplemental, backup, standby should there be a material change in the statutory language referring to and maintenance power to the QF. Any circumstances under which the ‘‘competing retail electric providers’’ in finding under section 210(m)(5) which Commission granted relief. The the plural. Moreover, the Coalition of would relieve the utility from selling to Commission noted that the applicant CIBO argue that the utility be required a QF would be made under a separate bears the burden to ‘‘set forth the factual to demonstrate that all of the services standard and in a separate proceeding basis’’ upon which the application is are competitively available. pursuant to § 292.312 of the based. The Commission further stated 196. In addition, CCC, EPSA, Florida Commission’s regulations. We agree, that the requirement for a ‘‘factual Industrial, Energy Consumers, Solid with EEI, however, that it is beyond the basis’’ indicates that allegations of a Waste Authority request that the Commission’s jurisdiction to determine change in the conditions upon which Commission clarify that lifting of the the justness and reasonableness of retail relief was granted must be supported PURPA obligation to purchase QF rates. with evidence. The Commission electricity for a particular utility does 201. Also, we agree with ELCON and proposed to consider these applications not relieve such utility of its obligation American Forest & Paper that the on a case-by-case basis.79 to sell supplemental, backup, standby language in section 210(m)(5), 193. No adverse comments were filed and maintenance power to the QF at ‘‘competing retail electric providers,’’ in response to the Commission’s fair, reasonable and nondiscriminatory requires that QFs have available at least proposal. Therefore, the Commission rates. two competing suppliers who are not will adopt § 292.311 to the 197. Also, the CCC argues that the affiliated with the utility before Commission’s regulations, as proposed. statute requires that the competing relieving the utility of its sales K. Section 210(m)(5)—Obligation to Sell supplier must be able to ‘‘deliver’’ as obligations under section 210(m)(5). We well as ‘‘sell’’ the backup and standby emphasize that during a section 1. NOPR power and that the Commission must 210(m)(5) proceeding, the Commission 194. Section 210(m)(5) of PURPA make certain that the utility cannot use will strictly interpret the statutory removes the requirement that an electric its monopoly over retail delivery (i.e., language. We note that the utility sell electric energy to any QF if distribution) service to impede the Commission’s regulations provide that a the Commission finds that: ‘‘competing development of QF projects. utility must interconnect with a QF, and retail electric suppliers are willing and 198. Further, the CCC states that the nothing in section 210(m) of PURPA able to sell and deliver electric energy Commission should recognize that in terminates that obligation. to the qualifying cogeneration facility or addition to a showing of an alternative 202. As to the CCC’s argument that qualifying small power production retail supplier of electricity, the statute section 210(m)(5) has an additional state facility; and the electric utility is not requires a second showing that the law prong that has to be met, we agree. required by State law to sell electric utility no longer has any state law Whether a utility that has an obligation energy in its service territory.’’ In the obligation to serve retail customers in its to provide Standard Offer or Default NOPR, the Commission proposed to service territory. ELCON and American service is ‘‘required by state law to sell incorporate the statutory language into Forest & Paper add that the Commission electric energy in its service territory’’ is its regulations. should interpret this second prong to an issue that invokes consideration of 2. Comments require any utility that has an obligation particular state laws or state regulatory to provide Standard Offer or Default authority actions. Accordingly, the 195. ACC, American Iron and Steel service is ‘‘required by state law to sell Commission believes that the issue is Institute, ELCON and Midwest ISO electric energy in its service territory.’’ more appropriately addressed on a case- Transmission Customers argue that by They state that typically the state has by-case basis in proceedings under simply importing into its regulations the imposed such obligations where § 292.312 of the Commission’s statutory standard in section 210(m)(5), necessary to achieve just and reasonable regulations rather than generically in the Commission provides no assurance this rulemaking. that it will continue to protect the rights rates or adequate, reliable service. of QFs to receive standby and backup ELCON and American Forest & Paper L. Section 210(m)(6)—No Effect on power at just, reasonable, and state that QFs should not be deprived of Existing Rights and Remedies any benefit that the state has determined nondiscriminatory rates. They argue 1. NOPR that no such finding can be made unless to be appropriate for retail customers. the Commission conducts an 199. In response to the arguments for 203. Section 210(m)(6) protects the investigation to assure itself that there is the Commission to retain a utility right and remedies under a contract or sufficient competition among suppliers obligation to supply backup power at obligation in effect or pending approval that market power will not be exercised just and reasonable rates, EEI argues that before the state regulatory authority. In in the sale of power. For instance, as backup power is a retail electric the NOPR, the Commission clarified ELCON and American Forest & Paper service, it is beyond the Commission’s that the protections provided for in suggest that the Commission require jurisdiction to determine the justness section 210(m)(6) are triggered and reasonableness of such retail rates. regardless of the stage of construction of 79 In the NOPR, the Commission also stated that, It argues that the most the Commission a facility that may be the subject of the consistent with our interpretation of ‘‘notice’’ under can find, as the statute makes clear, is contract or obligation. The Commission section 210(m)(3), the Commission will require an that competing retail suppliers are proposed to adopt the language of the applicant to identify all potentially affected utilities in the application so that the Commission will be willing and able to sell to the QF, and statute and solicited comments on able to meet its statutory requirement to provide that there is no applicable state whether further or different language sufficient notice and an opportunity for comment. obligation to serve. and/or clarifications other than those
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proposed should be incorporated into through contracts, but through While there appears to be some ambiguity our regulations. obligations created by non-contractual surrounding the term ‘‘obligation’’ in mechanisms, such as a state regulatory 210(m)(6), we find that the reading favored 2. Comments process. by protestors would eliminate the term ‘‘or 204. Most of the comments received 208. ELCON and American Forest & pending approval’’ from the statutory regarding the Commission’s language, and would be contrary to the well- Paper state that the Commission should established rule of statutory construction that interpretation of section 210(m)(6) were emphasize that even where mandatory every clause and word of a statute be given focused on the terms ‘‘contract’’ and purchase requirements are terminated as effect and that no clause or word be ‘‘obligation.’’ EEI and PG&E argue that to new contracts, existing contracts and interpreted so as to render it superfluous, the terms ‘‘contract’’ and ‘‘obligation’’ obligations may not be reopened. redundant, void or insignificant. To the are synonymous and that an contrary, we find the phrase ‘‘or pending ‘‘obligation’’ within the meaning of 3. Commission Determination approval’’ to be quite significant, as it PURPA section 210(m)(6) thus refers to 209. The Commission will adopt the ensures that contracts or obligations that had a specific legal arrangement between statutory language of section 210(m)(6) not yet been entered into but were being specific parties that establishes all the into its regulations. Based on the pursued in the context of the state relevant and material rates, terms and commission proceedings that were pending comments received, it is evident that the on the date of enactment of EPAct 2005 will conditions under which power will be term ‘‘obligation’’ as it is used in section fall within savings clause.83 bought and sold. They contend that 210(m)(6) and section 210(m)(1) needs ‘‘obligation’’ must provide the same to be clarified. Section 210(m)(6) reads, 212. When a utility refuses to enter level of certainty as a contract, even in relevant part, that ‘‘Nothing in this into a contract with a QF and the QF though a contract per se may not subsection affects the rights and seeks state regulatory authority help to actually be formed until regulatory remedies of any party under any enforce its PURPA regulations, a non- approval is obtained. They further argue contract or obligation, in effect or contractual legally enforceable that the only obligations that were pending approval before the appropriate obligation may be created pursuant to preserved under the savings clause were State regulatory authority * * *.’’ 80 the state’s implementation of PURPA. those obligations that (1) contain the Section 210(m)(1) states, in relevant Such obligations do not necessarily mutual commitments of specific buyers part, that ‘‘no electric utility shall be involve a single writing completely and sellers of QF-generated electricity; required to enter into a new contract or containing all material terms. How QFs (2) define all the relevant and material obligation to purchase electric energy initiate the PURPA process varies from rates, terms and conditions of the sales; ***.’’ 81 Because the term state to state. Thus, to narrowly define and (3) were in effect or pending ‘‘obligation’’ appears in two distinct ‘‘obligation’’ to encompasses only a regulatory approval on August 8, 2005. subsections of amended section 210(m), specific legal arrangement with all the 205. SCE supports EEI and argues that we believe it necessary to clarify how relevant and material rates, terms and ‘‘obligation’’ should refer only to mutual the Commission will interpret the term conditions established may be at odds arrangements that were sufficiently ‘‘obligation.’’ with a state’s implementation of developed to include all relevant terms 210. The Commission has previously PURPA. Accordingly, the Commission and mutual commitments of the parties addressed the meaning of section views the term ‘‘obligation’’ as a ‘‘legally and were in effect, or awaiting state 210(m)(6) in Midwest Renewable Energy enforceable obligation’’ which is commission approval, as of August 8, Projects, LLC.82 In Midwest Renewable, established through a state’s 2005. we rejected the notion offered here by implementation of PURPA. A QF that 206. Midwest Renewable Energy EEI and PG&E that ‘‘contract’’ and had initiated, prior to August 8, 2005, a Products argues that the Commission ‘‘obligation’’ are synonymous terms. We state PURPA proceeding that may result should clarify that any QF that was stated that such an interpretation would in a contract or legally enforceable certified under 18 CFR 292.206 and render the term ‘‘obligation’’ obligation would be considered to have made a filing with the relevant state superfluous because then section triggered an ‘‘obligation’’ with the regulatory authority before August 8, 210(m)(6) would only apply to existing electric utility regarding section 2005 (to implement the mandatory contracts. Had Congress intended 210(m)(6). 213. With regard to section 210(m)(1), purchase requirement) falls under the section 210(m)(6) to apply to only ‘‘obligation’’ will be viewed as a ‘‘legally protection of the savings clause in existing contracts, it would not have enforceable obligation’’ and a QF that section 210(m)(6), as having an included the term ‘‘obligation.’’ Thus, has initiated a state’s PURPA ‘‘obligation’’ in effect as of August 8, we found Congress intended there to be proceeding that may result in a legally 2005. a distinction between ‘‘contract’’ and 207. Deere argues that EEI and SCE enforceable contract or obligation prior ‘‘obligation.’’ ignore that there can be non-contractual 211. In Midwest Renewable, we also to the applicable electric utility filing its legally enforceable obligations, created disagreed with the theory offered by EEI petition for relief pursuant to § 292.310 pursuant to a state’s PURPA and PG&E in this proceeding that an of the Commission’s regulations will be implementing scheme, which do not ‘‘obligation’’ within the meaning of considered to have triggered an necessarily involve a single writing PURPA section 210(m)(6) refers to a ‘‘obligation’’ with the electric utility. completely containing all material specific legal arrangement between Whether or not the utility’s date of filing terms. Deere also argues that they ignore specific parties that establishes all the a petition for relief pursuant to the new act’s express mention of relevant and material rates, terms and § 292.310 of the Commission’s ‘‘contracts’’ separate from ‘‘obligations,’’ conditions under which power will be regulations becomes the end date for the using the disjunctive ‘‘or.’’ It states that bought and sold. As we stated in mandatory purchase requirement equating ‘‘obligations’’ to contracts Midwest Renewable: depends on whether the Commission would make it superfluous, contrary to makes a final determination that the the rules of statutory construction. 80 16 U.S.C. 824a–3(m)(3) (emphasis added). criteria for granting relief have been Deere also states that Congress 81 16 U.S.C. 824a–3(m)(6) (emphasis added). satisfied, and the Commission recognized that PURPA’s purchase 82 Midwest Renewable Energy Projects, LLC, 116 obligation is effectuated not only FERC ¶ 61,017 (2006) (Midwest Renewable). 83 Midwest Renewable at P 14.
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terminates the mandatory purchase The Commission further clarified that which the particulars of the contract can requirement. QF status does not mean that an electric be examined. utility has an ‘‘obligation’’ to purchase M. Section 210(m)(7)—Recovery of Costs 2. Effective Date of Contracts from the QF in perpetuity, or that a QF 1. NOPR has the right to demand that the utility a. NOPR 214. In the NOPR the Commission purchase at avoided-cost rates in 220. In the NOPR, the Commission stated that it did not believe that perpetuity. proposed to find that if a contract is regulations are necessary at this time to b. Comments entered into after August 8, 2005, the ensure that an electric utility that date of EPAct 2005 enactment, but purchases electric energy or capacity 218. AEP, Deere, EEI, Entergy, before the Commission has determined from a QF recovers all prudently Occidental, PPL, and PSNM agree with that an electric utility is entitled to relief incurred costs associated with the the NOPR’s position. AEP and from the mandatory purchase purchase as described in section Occidental seek clarification or requirement, the contract already 210(m)(7). Nonetheless, the Commission expansion of the NOPR’s position. AEP entered into will be treated as though it requested comments on whether there is believes that ‘‘terminates by its own was in effect on August 8, 2005 for a need for the Commission to consider accord’’ should also include the fact that purposes of section 210(m)(1). such a regulation. a contract may terminate mutually between the parties and the electric b. Comments 2. Comments utility would not be compelled to enter 221. EEI, SCE, and PG&E disagree 215. EEI, Allegheny, Alliant, into another contract with that QF. with the Commission’s proposed Montana-Dakota, PSNM and TNMP Occidental seeks clarification that the statutory construction. They argue that state that the Commission should adopt proposed rules do not abrogate existing once a utility is granted relief from the the statutory language in section contracts. As such, Occidental wants the PURPA purchase obligation, it should 210(m)(7) into its regulations and terms ‘‘terminates by its own accord’’ not be required to honor any QF provide for case-by-case relief where clarified to mean ‘‘expires by its own contracts entered into after August 8, required. Central Vermont and Progress terms.’’ 2005. EEI, SCE, and PG&E argue that Energy argue that the Commission c. Commission Determination this is the only determination that is should establish wholesale and retail consistent with the clear intent and riders to permit consistent, complete 219. The Commission will adopt the express language of EPAct 2005, setting and timely recovery of the utility’s NOPR’s proposal regarding contract August 8, 2005 as the end date of the prudently-incurred QF purchase costs. termination in the context of finding PURPA purchase obligation for utilities They state that the states and the made pursuant to section 210(m)(1). in appropriate markets. They state that Commission often use different Two commenters, AEP and Occidental, this finding is also critical to preventing methodologies for allocating costs seek clarification of the phrase a QF ‘‘gold rush,’’ i.e., QFs with expiring between the jurisdictions and the fact ‘‘terminates by its own accord.’’ AEP contracts and/or new QFs may seek to that utilities do not traditionally have points out that some contracts may be obtain a contract prior to the general rate cases before the terminated by mutual agreement Commission making the requisite Commission and the state commissions between the parties to the contract and finding under section 210(m)(1) that every year. Therefore, when a QF believes this type of contract would relieve electric utilities like SCE purchase is made in a year without a termination should also be included in and PG&E from the mandatory purchase general rate case at wholesale and retail, the Commission’s interpretation of requirement. those costs are not recovered via the ‘‘terminates by its own accord.’’ As long 222. In the alternative, SCE and PG&E utility’s retail or wholesale rates. as there is mutual agreement between a state that if the Commission believes 3. Commission Determination QF and the electric utility to terminate that some contracts entered into after 216. We adopt our proposal in the a contract, then the Commission finds August 8, 2005 must be honored, it NOPR. We do not find Central Vermont that the electric utility is not compelled should adopt a rule that ensures that and Progress Energy’s argument to enter into a new, successor contract electric utilities either: (1) are not persuasive. No evidence has been with the QF. Occidental requests compelled by their state commissions to presented that utilities will not be able clarification that the NOPR does not enter into new contracts or extend to recover costs associated with abrogate existing contracts and thus existing contracts after a petition for purchases of electric energy or capacity wants the phrase ‘‘terminates by its own relief is filed pursuant to section 210(m) from a QF. Until such time, we are accord’’ to be clarified to mean ‘‘expires (PURPA Petition) until and unless the reluctant to review an issue that should by its own terms.’’ We will also clarify PURPA Petition is denied; or (2) are not be handled by the states in the first that the proposed rules adopted in this required to honor contracts (or contract instance. Therefore, we see no reason to Final Rule do not abrogate existing extensions) entered into after a PURPA act now. contracts. Thus, under the Final Rule, a Petition is filed, if the PURPA Petition QF contract is to remain in effect until is subsequently granted. Under this N. Other Issues it terminates by mutual agreement or by approach, contracts entered into 1. Contract Termination its own terms. We note, however, that between August 8, 2005, and the filing there may be contracts that contain of a PURPA Petition would be honored, a. NOPR provisions that legislation, such as but there would be no ‘‘gold rush’’ 217. In the NOPR, the Commission EPAct 2005, or a Final Rule, such as this incentive created by the filing of the proposed to find that when a contract one, trigger a termination clause in the utility’s PURPA Petition. terminates by its own accord, an electric contract. To the extent that the parties 223. OG&E proposes that when a QF utility is not compelled to enter into a to a contract cannot agree whether a attempts to establish a contract or new, successor contract with the QF if termination clause has been triggered, obligation after August 8, 2005, a utility the Commission has made a finding that the issue will be best determined in an should have a reasonable opportunity to section 210(m)(1) has been satisfied. individual case-specific proceeding in demonstrate in a filing at the
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Commission that the utility satisfies one Commission terminates the obligation, electric utility’s obligation to enter into of the tests set forth in section after an electric utility filing. Until an new contracts or obligations is 210(m)(1). A QF attempting to establish electric utility makes a filing pursuant reinstated as of the date of a a new obligation would be required to to the regulations, and the Commission Commission order and a QF seeking a provide the utility with formal notice. makes the required findings, the new contract or obligation shall not be Within 60 days of such notice, the purchase obligations remains in effect. denied. As such, a new contract or utility could file a PURPA Petition if it A different statutory interpretation, such obligation in this situation will be believed the requisite market conditions as the one advocated by EEI, would lead treated as in effect prior to August 8, existed. to QF contracts being abrogated 2005. We believe this modification will 224. The CCC, and the APPA and potentially several years after execution. remove any ‘‘gold rush’’ incentive QFs LPPC argue that the language is clear We believe Congress did not intend for may have and preserves the integrity of that the ability of a utility to have its this after-the-fact abrogation of contracts the mandatory purchase requirement mandatory purchase requirement to occur. Thus, we believe the NOPR’s and contracts entered into between QFs terminated is dependent on a interpretation of this statutory language and electric utilities. We note, however, Commission determination that a is reasonable. that to the extent that a QF had a nondiscriminatory market satisfying the 227. Nonetheless, some of EEI, SCE, contract or obligation pending approval statutory conditions exists. Until this and PG&E’s arguments are compelling. before an appropriate state regulatory determination is made, the mandatory The Commission’s interpretation could authority, or non-regulated utility on purchase requirement remains in effect. potentially lead to what these August 8, 2005, a finding by that state Deere adds that generation project commenters describe as a ‘‘gold rush’’ of regulatory authority or non-regulated financing is long-term in nature, and QFs seeking contracts once an electric utility that an electric utility has an contractual and non-contractual legally utility files for relief. Since the obligation to purchase or must enter enforceable obligations are typically for Commission has 90 days in which to into a contract is binding. up to 20 years or longer so as to support render a finding, QFs would be able to 229. The Commission recognizes that the long-term financing. The possibility seek new contracts or obligations from there is a possibility of electric utilities of a new QF contract or obligation being the electric utility upon learning of the filing PURPA Petitions one right after negated, either ab initio or at the time electric utility’s relief application until another in order to invoke the of a section 210(m) order, would leave the Commission makes a finding, and temporary suspension period of the the remaining term of the financing the electric utility would be subject to mandatory purchase requirement. arrangements unsupported. the mandatory purchase requirement Repeated section 210(m)(3) applications 225. The CPUC states that should the even if the Commission eventually by utilities intended will not be Commission adopt a rule as suggested made a finding removing the mandatory tolerated and the Commission will take by SCE and PG&E, the rule should purchase requirement. We believe this appropriate action if utilities abuse the affirm that state commissions retain possibility would undermine and process. oversight of such terminable contracts to circumvent the intent of section V. Information Collection Statement ensure utilities afford equal treatment of 210(m)(1). all QF contracts. 228. In order to prevent the possibility The following collections of of a ‘‘gold rush,’’ the Commission will information referenced in this Final c. Commission Determination modify its proposed interpretation. Rule have been submitted to the Office 226. Section 210(m)(1) states, in Rather than treat new contracts and of Management and Budget (OMB) for relevant part, that, after August 8, 2005, obligations entered into after a PURPA review under section 3507(d) of the no electric utility shall be required to petition is filed but before the Paperwork Reduction Act of 1995.84 enter into a new contract or obligation Commission renders a finding as in OMB’s regulations require OMB to to purchase electric energy from QFs if effect prior to August 8, 2005, the approve certain information collection the Commission finds that the QF has Commission will temporarily suspend requirements imposed by agency rule.85 nondiscriminatory access to either an electric utility’s obligation to enter Upon approval of a collection of section 210(m)(1)(A), (B), or (C). The into new contracts and obligations upon information, OMB will assign an OMB Commission’s interpretation of this the filing of its PURPA petition. When control number and expiration date. statutory language, as expressed in the an electric utility files its PURPA Respondents subject to the filing NOPR, was to treat new contracts or petition, that electric utility will not be requirements of this Final Rule will not obligations entered into after August 8, obligated to enter into new contracts or be penalized for failing to respond to 2006, but before the Commission makes obligations with QFs as of the date its these collections of information unless a finding, as contracts or obligations in PURPA petition is filed. If the the collections of information display a effect prior to August 8, 2005. This Commission finds that section 210(m)(1) valid OMB control number or the interpretation is consistent with the has been met, then the mandatory Commission had provided a Commission’s policy of not abrogating purchase requirement for that electric justification as why the control number contracts. Moreover, this is consistent utility ends as of the date of the PURPA should be displayed. with the statute. Under the statue, the petition. However, if the Commission In the NOPR the Commission purchase obligation is not terminated on finds that the requirements of section provided the following burden estimates August 8, 2005, but only when the 210(m)(1) have not been met, then the for complying with the rule as follows:
Number of Number of Hours per Total annual Data collection FERC–556 respondents responses response hours
§ 292.310 ...... 230 1 2 460 § 292.312 ...... 230 1 2 460
84 See 44 U.S.C. 3507(d). 85 5 CFR 1320.11.
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Number of Number of Hours per Total annual Data collection FERC–556 respondents responses response hours
§ 292.313 ...... 630 1 3 1,890
Totals ...... 860 1 ...... 2,810
Information Collection Costs: Because of Washington, DC 20426 [Attention: regurgitates statutory language.’’ 88 The the regional differences and the various Michael Miller, Office of the Executive rule we are proposing in this docket is staffing levels that have been involved Director, Phone (202)502–8415, fax: mostly an interpretative rule and thus, in preparing the documentation (legal, (202)273–0873, e-mail: does not require a regulatory flexibility technical and support) the Commission [email protected]] For submitting analysis. The exception, however, is the is using the hourly rate of $150 to comments concerning the collection of Commission’s establishment of a estimate the costs for filing and other information(s) and the associated rebuttable presumption that small QFs, administrative processes (reviewing burden estimates, please send your with a net capacity no greater than 20 instructions, searching data sources, comments to the contact listed above MW, do not have nondiscriminatory completing and transmitting the and to the Office of Management and access to wholesale markets described collection of information). The Budget, Office of Information and in section 210(m)(1)(A), (B), or (C). estimated cost is anticipated to be Regulatory Affairs, Washington, DC Unless an electric utility seeking the $421,500. 20503, Attention: Desk Officer for the right to terminate its requirement to In response to the NOPR, the Federal Energy Regulatory Commission; purchase small QF power specifically Commission received no comments Phone: (202) 395–4650, fax: (202) 395– rebuts this small QF presumption, and concerning its estimates for burden and 7285. that electric utility’s request is granted costs and will use those estimates here by the Commission, a small QF would in the final rule. Where commenters VI. Environmental Analysis continue to be eligible to require the believed that a disproportionate amount 230. The Commission is required to electric utility to purchase its electric of burden had been placed on certain prepare an Environmental Assessment energy. With this 20 MW rebuttable entities in order to meet statutory or an Environmental Impact Statement presumption the Commission reduces criteria, the Commission has addressed for any action that may have a the burden, i.e., the cost of participating this issue elsewhere in the rule and will significant adverse effect on the human in termination proceedings, of small not repeat its responses here. The environment. The Commission has QFs to participate in the section 210(m)(3) proceedings. In fact, the actions taken in the Final Rule should categorically excluded certain actions Commission is being generous in ameliorate their concerns of a from this requirement as not having a allowing small QFs up to 20 MWs to significant shift in the burden. significant effect on the human have a rebuttable presumption given Title: FERC–556 ‘‘Small Power environment. As explained above, this that the Small Business Administration Production and Cogeneration rule is clarifying in nature. It interprets considers ‘‘small’’ to mean 4 MW or Facilities’’. several amendments made to PURPA by less. Action: Proposed collections. EPAct 2005, and clarifies the OMB Control Nos.: 1902–0075. VIII. Document Availability Respondents: Businesses or other for applicability of these amendments to profit. electric utilities and QFs; it does not 232. In addition to publishing the full Frequency of responses: Annually and substantially change the effect of the text of this document in the Federal on occasion. legislation. Accordingly, no Register, the Commission provides all Necessity of the Information: The environmental consideration is interested persons an opportunity to Commission amends its regulations to necessary. view and/or print the contents of this implement Section 210(m) of PURPA VII. Regulatory Flexibility Act document via the Internet through which was enacted in Section 1253 of Certification FERC’s Home Page (http://www.ferc.gov) the EPACT 2005 to implement a process and in FERC’s Public Reference Room by which electric utilities may apply for 231. The Regulatory Flexibility Act of during normal business hours (8:30 a.m. removal of the requirement that they 1980 (RFA) 86 generally requires a to 5 p.m. Eastern time) at 888 First enter into new contracts or obligations description and analysis of rules that Street, NE., Room 2A, Washington DC for the purchase of electric energy from will have significant economic impact 20426. qualifying facilities (QFs) after August 8, on a substantial number of small entities 233. From FERC’s Home Page on the 2005. The Final Rule is in response to and where notice and comment Internet, this information is available on a Congressional mandate that addresses rulemaking is required. Certain rules are eLibrary. The full text of this document complaints of electric utilities of having exempt from notice and comment from is available on eLibrary in PDF and to pay contractually high prices for the RFA requirements; exempt rules Microsoft Word format for viewing, power they did not need. In adding include interpretative rules, general printing, and/or downloading. To access Section 210, Congress described a statements of policy, or rules of agency this document in eLibrary, type the standard of relief for the requirement organization procedure or practice.87 docket number excluding the last three that electric utilities enter into new Interpretative rules ‘‘generally interpret digits of this document in the docket obligations to purchase electric power the intent expressed by Congress, where number field. from QFs. an agency does not insert its own 234. User assistance is available for Interested persons may obtain judgments or interpretations in eLibrary and the FERC’s Web site during information on the reporting implementing a rule and simply requirements by contacting the 88 ‘‘How to Comply with the Regulatory Flexibility Act: A Guide for Government Agencies’’, following: Federal Energy Regulatory 86 5 U.S.C. 601–12. Small Business Administration, Office of Advocacy, Commission, 888 First Street, NE., 87 5 U.S.C. 553(b)(A). P.5, May 2003.
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normal business hours from our Help such interconnections with any (ii) Wholesale markets for long-term line at (202) 502–8222 or the Public qualifying facility as may be necessary sales of capacity and electric energy; or Reference Room at (202) 502–8371 Press to accomplish purchases or sales under (2)(i) Transmission and 0, TTY (202) 502–8659. E-mail the this subpart. The obligation to pay for interconnection services that are Public Reference Room at any interconnection shall be determined provided by a Commission-approved [email protected]. in accordance with § 292.306. regional transmission entity and (2) No electric utility is required to administered pursuant to an open IX. Effective Date interconnect with any qualifying facility access transmission tariff that affords 235. These regulations are effective if, solely by reason of purchases or sales nondiscriminatory treatment to all January 2, 2007. The Commission has over the interconnection, the electric customers; and determined, with the concurrence of the utility would become subject to (ii) Competitive wholesale markets Administrator of the Office of regulation as a public utility under part that provide a meaningful opportunity Information and Regulatory Affairs of II of the Federal Power Act. to sell capacity, including long-term and OMB, that this rule is not a ‘‘major rule’’ (d) Transmission to other electric short-term sales, and electric energy, as defined in section 251 of the Small utilities. If a qualifying facility agrees, an including long-term, short-term and Business Regulatory Enforcement electric utility which would otherwise real-time sales, to buyers other than the Fairness Act of 1996. The Commission be obligated to purchase energy and utility to which the qualifying facility is will submit the Final Rule to both capacity from such qualifying facility interconnected. In determining whether houses of Congress and the General may transmit the energy or capacity to a meaningful opportunity to sell exists, Accounting Office. any other electric utility. Any electric the Commission shall consider, among List of Subjects in 18 CFR Part 292 utility to which such energy or capacity other factors, evidence of transactions is transmitted shall purchase such within the relevant market; or Electric power, Electric power plants, energy or capacity under this subpart as (3) Wholesale markets for the sale of Electric utilities. if the qualifying facility were supplying capacity and electric energy that are, at By the Commission. energy or capacity directly to such a minimum, of comparable competitive Magalie R. Salas, electric utility. The rate for purchase by quality as markets described in Secretary. the electric utility to which such energy paragraphs (a)(1) and (a)(2) of this is transmitted shall be adjusted up or I In consideration of the foregoing, the section. down to reflect line losses pursuant to Commission amends part 292, chapter I, (b) For purposes of § 292.309(a), a § 292.304(e)(4) and shall not include title 18, Code of Federal Regulations, as renewal of a contract that expires by its any charges for transmission. follows. own terms is a ‘‘new contract or (e) Parallel operation. Each electric obligation’’ without a continuing PART 292—REGULATIONS UNDER utility shall offer to operate in parallel obligation to purchase under an expired SECTIONS 201 AND 210 OF THE with a qualifying facility, provided that contract. PUBLIC UTILITY REGULATORY the qualifying facility complies with any (c) For purposes of § 292.309(a)(1), (2) POLICIES ACT OF 1978 WITH REGARD applicable standards established in and (3), with the exception of paragraph TO SMALL POWER PRODUCTION AND accordance with § 292.308. (d) of this section, there is a rebuttable presumption that a qualifying facility COGENERATION I 3. Sections 292.309 through 292.314 has nondiscriminatory access to the I are added to read as follows: 1. The authority citation for part 292 market if it is eligible for service under continues to read as follows: Sec. 292.309 Termination of obligation to a Commission-approved open access Authority: 16 U.S.C. 791a–825r, 2601– purchase from qualifying facilities. transmission tariff or Commission-filed 2645; 31 U.S.C. 9701; 42 U.S.C. 7101–7352. 292.310 Procedures for utilities requesting reciprocity tariff, and Commission- approved interconnection rules. If the I 2. Section 292.303 is revised to read termination of obligation to purchase from qualifying facilities. Commission determines that a market as follows: 292.311 Reinstatement of obligation to meets the criteria of § 292.309(a)(1), (2) § 292.303 Electric utility obligations under purchase. or (3), and if a qualifying facility in the this subpart. 292.312 Termination of obligation to sell to relevant market is eligible for service qualifying facilities. under a Commission-approved open (a) Obligation to purchase from 292.313 Reinstatement of obligation to sell. qualifying facilities. Each electric utility 292.314 Existing rights and remedies. access transmission tariff or shall purchase, in accordance with Commission-filed reciprocity tariff, a § 292.304, unless exempted by § 292.309 § 292.309 Termination of obligation to qualifying facility may seek to rebut the and § 292.310, any energy and capacity purchase from qualifying facilities. presumption of access to the market by which is made available from a (a) After August 8, 2005, an electric demonstrating, inter alia, that it does qualifying facility: utility shall not be required, under this not have access to the market because of (1) Directly to the electric utility; or part, to enter into a new contract or operational characteristics or (2) Indirectly to the electric utility in obligation to purchase electric energy transmission constraints. accordance with paragraph (d) of this from a qualifying cogeneration facility (d)(1) For purposes of § 292.309(a)(1), section. or a qualifying small power production (2), and (3), there is a rebuttable (b) Obligation to sell to qualifying facility if the Commission finds that the presumption that a qualifying facility facilities. Each electric utility shall sell qualifying cogeneration facility or with a capacity at or below 20 to any qualifying facility, in accordance qualifying small power facility megawatts does not have with § 292.305, unless exempted by production has nondiscriminatory nondiscriminatory access to the market. § 292.312, energy and capacity access to: (2) For purposes of implementing requested by the qualifying facility. (1)(i) Independently administered, paragraph (d)(1) of this section, the (c) Obligation to interconnect. (1) auction-based day ahead and real time Commission will not be bound by the Subject to paragraph (c)(2) of this wholesale markets for the sale of electric one-mile standard set forth in section, any electric utility shall make energy; and § 292.204(a)(2).
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(e) Midwest Independent (h) No electric utility shall be agreed to enter into power purchase Transmission System Operator required, under this part, to enter into contracts, as of the date of the (Midwest ISO), PJM Interconnection, a new contract or obligation to purchase application filed pursuant to this L.L.C. (PJM), ISO New England, Inc. from or sell electric energy to a facility section, or are in discussion, as of the (ISO–NE), and New York Independent that is not an existing qualifying date of the application filed pursuant to System Operator (NYISO) qualify as cogeneration facility unless the facility this section, with regard to power markets described in § 292.309(a)(1)(i) meets the criteria for new qualifying purchase contacts; and (ii), and there is a rebuttable cogeneration facilities established by the (4) The developers of facilities that presumption that qualifying facilities Commission in § 292.205. have pending state avoided cost with a capacity greater than 20 (i) For purposes of § 292.309(h), an proceedings, as of the date of the megawatts have nondiscriminatory ‘‘existing qualifying cogeneration application filed pursuant to this access to those markets through facility’’ is a facility that: section; and Commission-approved open access (1) Was a qualifying cogeneration (5) Any other qualifying facilities that transmission tariffs and interconnection facility on or before August 8, 2005; or the applicant reasonably believes to be rules, and that electric utilities that are (2) Had filed with the Commission a affected by its application filed pursuant members of such regional transmission notice of self-certification or self- to paragraph (a) of this section. organizations or independent system recertification, or an application for (d) The following information must be operators (RTO/ISOs) should be relieved Commission certification, under filed with an application: of the obligation to purchase electric § 292.207 prior to February 2, 2006. (1) Identify whether applicant seeks a energy from the qualifying facilities. A (j) For purposes of § 292.309(h), a finding under the provisions of qualifying facility may seek to rebut this ‘‘new qualifying cogeneration facility’’ § 292.309(a)(1), (2), or (3). presumption by demonstrating, inter is a facility that satisfies the criteria for (2) A narrative setting forth the factual alia, that: qualifying cogeneration facilities basis upon which relief is requested and (1) The qualifying facility has certain pursuant to § 292.205. describing why the conditions set forth operational characteristics that in § 292.309(a)(1), (2), or (3) have been effectively prevent the qualifying § 292.310 Procedures for utilities met. Applicant should also state in its facility’s participation in a market; or requesting termination of obligation to application whether it is relying on the (2) The qualifying facility lacks access purchase from qualifying facilities. findings or rebuttable presumptions to markets due to transmission (a) An electric utility may file an contained in § 292.309(e), (f) or (g). To constraints. The qualifying facility may application with the Commission for the extent applicant seeks relief from show that it is located in an area where relief from the mandatory purchase the purchase obligation with respect to persistent transmission constraints in requirement under § 292.303(a) a qualifying facility 20 megawatts or effect cause the qualifying facility not to pursuant to this section on a service smaller, and thus seeks to rebut the have access to markets outside a territory-wide basis. Such application presumption in § 292.309(d), applicant persistently congested area to sell the shall set forth the factual basis upon must also set forth, and submit evidence qualifying facility output or capacity. which relief is requested and describe of, the factual basis supporting its (f) The Electric Reliability Council of why the conditions set forth in contention that the qualifying facility Texas (ERCOT) qualifies as a market § 292.309(a)(1), (2) or (3) have been met. has nondiscriminatory access to the described in § 292.309(a)(3), and there is After notice, including sufficient notice wholesale markets which are the basis a rebuttable presumption that qualifying to potentially affected qualifying for the applicant’s filing. facilities with a capacity greater than 20 cogeneration facilities and qualifying (3) Studies, including the applicant’s megawatts have nondiscriminatory small power production facilities, and long-term transmission plan, conducted access to that market through Public an opportunity for comment, the by applicant, or the RTO, ISO or other Utility Commission of Texas (PUCT) Commission shall make a final relevant entity, that show: approved open access protocols, and determination within 90 days of such (i) Transmission constraints by path, that electric utilities that operate within application regarding whether the element or other level of comparable ERCOT should be relieved of the conditions set forth in § 292.309(a)(1), detail that have occurred and/or are obligation to purchase electric energy (2) or (3) have been met. known and expected to occur, and any from the qualifying facilities. A (b) Sufficient notice shall mean that proposed mitigation including qualifying facility may seek to rebut this an electric utility must identify with transmission construction plans; presumption by demonstrating, inter names and addresses all potentially (ii) Levels of congestion, if available; alia, that: affected qualifying facilities in an (iii) Relevant system impact studies (1) The qualifying facility has certain application filed pursuant to paragraph for the generation interconnections, operational characteristics that (a). already completed; effectively prevent the qualifying (c) All potentially affected qualifying (iv) Other information pertinent to facility’s participation in a market; or facilities shall include: showing whether transfer capability is (2) The qualifying facility lacks access (1) Those qualifying facilities that available; and to markets due to transmission have existing power purchase contracts (v) The appropriate link to applicant’s constraints. The qualifying facility may with the applicant; OASIS, if any, from which a qualifying show that it is located in an area where (2) Other qualifying facilities that sell facility may obtain applicant’s available persistent transmission constraints in their output to the applicant or that transmission capacity (ATC) effect cause the qualifying facility not to have pending self-certification or information. have access to markets outside a Commission certification with the (4) Describe the process, procedures persistently congested area to sell the Commission for qualifying facility status and practices that qualifying facilities qualifying facility output or whereby the applicant will be the interconnected to the applicant’s system (g) The California Independent purchaser of the qualifying facility’s must follow to arrange for the System Operator and Southwest Power output; transmission service to transfer power to Pool, Inc. satisfy the criteria of (3) Any developer of generating purchasers other than the applicant. § 292.309(a)(2)(i). facilities with whom the applicant has This description must include the
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process, procedures and practices of all Commission finds that the conditions Commission finds that the conditions distribution, transmission and regional set forth in § 292.309(a), (b), or (c) which set forth in paragraphs (b)(1) and (b)(2) transmission facilities necessary for relieved the obligation to purchase, are of this section are no longer met. qualifying facility access to the market. no longer met. (5) If qualifying facilities will be § 292.314 Existing rights and remedies. required to execute new interconnection § 292.312 Termination of obligation to sell Nothing in this section affects the agreements, or renegotiate existing to qualifying facilities. rights or remedies of any party under agreements so that they can effectuate (a) Any electric utility may file an any contract or obligation, in effect or wholesale sales to third-party application with the Commission for pending approval before the appropriate purchasers, explain the requirements, relief from the mandatory obligation to State regulatory authority or non- charges and the process to be followed. sell under this section on a service regulated electric utility on or before Also, explain any differences in these territory-wide basis or a single August 8, 2005, to purchase electric requirements as they apply to qualifying qualifying facility basis. Such energy or capacity from or to sell facilities compared to other generators, application shall set forth the factual electric energy or capacity to a or to applicant-owned generation. basis upon which relief is requested and qualifying cogeneration facility or (6) Applicants seeking a Commission describe why the conditions set forth in qualifying small power production finding pursuant to § 292.309(a)(2) or paragraphs (b)(1) and (b)(2) of this facility under this Act (including the (3), except those applicants located in section have been met. After notice, right to recover costs of purchasing ERCOT, also must provide evidence of including sufficient notice to potentially electric energy or capacity). competitive wholesale markets that affected qualifying facilities, and an Note: The following appendix will not be provide a meaningful opportunity to sell opportunity for comment, the published in the Code of Federal capacity, including long-term and short- Commission shall make a final Regulations. term sales, and electric energy, determination within 90 days of such including long-term, short-term and application regarding whether the Appendix A: List of Petitioners real-time sales, to buyers other than the conditions set forth in paragraphs (b)(1) Requesting Clarification or Submitting utility to which the qualifying facility is and (b)(2) of this section have been met. Comments (b) After August 8, 2005, an electric interconnected. In demonstrating that a AES Shady Point, LLC (AES Shady Point) meaningful opportunity to sell exists, utility shall not be required to enter into Albers, John D. (Mr. Albers) provide evidence of transactions within a new contract or obligation to sell Allegheny Power (Allegheny) the relevant market. Applicants must electric energy to a qualifying small Alliant Energy Corporate Services, Inc. include a list of known or potential power production facility, an existing (Alliant) purchasers, e.g., jurisdictional and non- qualifying cogeneration qualifying American Chemistry Council jurisdictional utilities as well as retail facility, or a new qualifying American Electric Power Service Corporation energy service providers. cogeneration facility if the Commission (AEP) has found that; American Energy Company (7) Signature of authorized individual American Forest and Paper Association evidencing the accuracy and (1) Competing retail electric suppliers (American Forest & Paper) authenticity of information provided by are willing and able to sell and deliver American Iron and Steel Institute applicant. electric energy to the qualifying American Petroleum Institute (8) Person(s) to whom cogeneration facility or qualifying small American Public Power Association and communications regarding the filed power production facility; and Large Public Power Council (APPA) information may be addressed, (2) The electric utility is not required American Wind Energy Association (AWEA) including name, title, telephone by State law to sell electric energy in its Caithness Energy, LLC (Caithness) number, and mailing address. service territory. California Cogeneration Council (CCC) California Independent System Operator § 292.311 Reinstatement of obligation to § 292.313 Reinstatement of obligation to Corporation (CAISO) purchase. sell. Central Hudson Gas & Electric Corporation, At any time after the Commission At any time after the Commission Consolidated Edison Company of New York, Inc., LIPA, New York Power makes a finding under §§ 292.309 and makes a finding under § 292.312 Authority, New York State Electric & Gas 292.310 relieving an electric utility of its relieving an electric utility of its Corporation, Orange and Rockland obligation to purchase electric energy, a obligation to sell electric energy, a Utilities, Inc., and Rochester Gas and qualifying cogeneration facility, a qualifying cogeneration facility, a Electric Corporation (New York qualifying small power production qualifying small power production Transmission Owners) facility, a State agency, or any other facility, a State agency, or any other Central Vermont Public Service Corporation affected person may apply to the affected person may apply to the and Green Mountain Power Corporation Commission for an order reinstating the Commission for an order reinstating the (Central Vermont) Coalition of Midwest Transmission electric utility’s obligation to purchase electric utility’s obligation to purchase Customers (Midwest Transmission electric energy under this section. Such electric energy under this section. Such Customers) application shall set forth the factual application shall set forth the factual Cogeneration Association of California and basis upon which the application is basis upon which the application is Energy Producers and Users Coalition based and describe why the conditions based and describe why the conditions (Cogeneration Association of California) set forth in § 292.309(a), (b) or (c) are no set forth in Paragraph (b)(1) and (b)(2) of Cogeneration Coalition of Washington longer met. After notice, including this section are no longer met. After Congressmen Boucher, Brown and Pickering sufficient notice to potentially affected notice, including sufficient notice to Consolidated Edison Company of New York, electric utilities, and opportunity for potentially affected utilities, and Inc. (ConEd) Constellation Energy Group, Inc. comment, the Commission shall issue opportunity for comment, the (Constellation) an order within 90 days of such Commission shall issue an order within Council of Industrial Boiler Owners (CIBO) application reinstating the electric 90 days of such application reinstating Deere & Company (Deere) utility’s obligation to purchase electric the electric utility’s obligation to sell Direct Energy Services, LLC (Direct Energy) energy under this section if the electric energy under this section if the Dow Chemical Company (Dow)
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Edison Electric Institute (EEI) National Petrochemical & Refiners Policy, West Wind Wires, and Western Electricity Consumers Resource Council Association (NPRA) Resource Advocates) (ELCON) National Rural Electric Cooperative Public Interest and Renewable Energy Electric Power Supply Association (EPSA) Association (NRECA) Organizations Entergy Services, Inc. (Entergy) Nelson Industrial Steam Company’s Public Power Council Environmental Law and Policy Center Industrial Participants (NISCO) Public Service Company of New Mexico Exelon Corporation (Exelon) New York Independent System Operator, Inc. (PSNM) jointly with Texas-New Mexico The Fertilizer Institute (NYISO) Power Company (TNP) FirstEnergy Corp. (FirstEnergy) NSTAR Electric & Gas Corporation (NSTAR) Public Utilities Commission of the State of Florida Industrial Cogeneration Association Occidental Chemical Corporation California (CPUC) (Florida Industrial Cogeneration) (Occidental) Public Utility Commission of Texas (PUCT) Granite State Hydropower Association, Inc. Oklahoma Corporation Commission Reliant Energy, Inc. (Reliant) and Vermont Independent Power Oklahoma Gas and Electric Company (OG&E) Senators Alexander, Carper and Collins Producers Association (Granite State) Ottinger, Richard L. (Mr. Ottinger) Solid Waste Authority of Palm Beach, Florida Independent Energy Producers Association of Pacific Gas and Electric Company (PG&E) (Solid Waste Authority) California (Independent Energy Producers) PacifiCorp Southeast Electricity Consumers Association (SeECA) Industrial Energy Consumers of America PJM Interconnection, LLC (PJM) Southern California Edison Company (SCE) (Industrial Energy Consumers) PJM Transmission Owners Swecker, Gregory (Mr. Swecker) Landfill Gas Coalition PPL Electric Utilities Corporation (PPL) Transmission Agency of Northern California Louisiana Energy Users Group (LEUG) Progress Energy, Inc. (Progress Energy) (TANC) Midwest Renewable Energy Projects, LLC Public Interest Organizations (PIOs) (Center TXU Energy, Power and Wholesale (Midwest Renewable Energy Projects) for Energy Efficiency & Renewable Companies (TXU) Missouri River Energy Services (Missouri Technologies, Delaware Division of the U.S. Combined Heat & Power Association River) Public Advocate, Environmental Law & (USCHPA) Midwest Transmission Customers Policy Center, Interwest Energy Alliance, Utah Association of Energy Users (UAE) Modesto Irrigation District (Modesto Izaak Walton League of America, Natural Wisconsin Industrial Energy Group, Inc. Irrigation) Resources Defense Council, Northwest Xcel Energy Services Inc. (Xcel) Montana-Dakota Utilities Co. (Montana- Energy Coalition, Office of the Ohio Dakota) Consumers’ Counsel, Pace Energy Project, [FR Doc. 06–8928 Filed 10–31–06; 8:45 am] National Grid USA (National Grid) Project for Sustainable FERC Energy BILLING CODE 6717–01–P
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Part III
Department of Education 34 CFR Parts 668, 673, 682 and 685 Federal Student Aid Programs; Final Rule
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DEPARTMENT OF EDUCATION Protection Act of 2004 (Pub. L. 108– Discussion: The Secretary does not 409); certain provisions of Pub. L. 107– agree. The regulations do not restrict the 34 CFR Parts 668, 673, 682 and 685 139; the Pell Grant Hurricane and curricula institutions may offer or the RIN 1840–AC87 Disaster Relief Act (Pub. L. 109–66); the delivery modes they may use. Instead, Student Grant Hurricane and Disaster the regulations reflect the clear Federal Student Aid Programs Relief Act (Pub. L. 109–67); and the distinction in the HERA between Emergency Supplemental telecommunications courses and AGENCY: Office of Postsecondary Appropriations Act for Defense, the correspondence courses. This Education, Department of Education. Global War on Terror, and Hurricane distinction is necessary because the ACTION: Final regulations. Recovery, 2006 (Pub. L. 109–234). HERA eliminated the circumstances The August 9, 2006, interim final under which telecommunications SUMMARY: The Secretary is amending the regulations included a request for public courses are considered correspondence Federal Student Aid Program comment. This document contains a courses, and excluded regulations to implement the changes to discussion of the comments we received telecommunications courses from the the Higher Education Act of 1965, as and revisions to the interim final ‘‘50 percent rule’’ limitations on amended (HEA), resulting from the regulations that we made as a result of institutional eligibility for Title IV, HEA Higher Education Reconciliation Act of these comments. program assistance, while retaining 2005 (HERA), Pub. L. 109–171, and In the interim final regulations, we them for correspondence courses. other recently enacted legislation. These stated that changes to the final Because of the changes made by the final regulations reflect the provisions of regulations made after consideration of HERA, it is necessary to clarify the the HERA that affect students, the public comments would be effective regulatory definition to distinguish borrowers, postsecondary educational July 1, 2007. After considering the telecommunications courses from institutions, lenders, and other program comments we received, we have correspondence courses. We have participants in the Federal student aid decided not to make any substantive defined the term telecommunications programs authorized under Title IV of changes to the regulations. We have course to conform to the usage of that the HEA. made some technical and conforming term by the higher education Final regulations for the two new changes that were identified during the community. None of the commenters Title IV grant programs created by the public comment period, but these proposed alternative language. HERA, the Academic Competitiveness technical changes are not subject to the The revised definition of the term Grant Program and the National Science delayed effective date under section 482 telecommunications course does not and Mathematics Access to Retain of the HEA, and therefore become impose any new requirements on Talent (SMART) Grant Program, are effective 30 days after publication of accrediting agencies. Since 1998, being published in a separate notice in these final regulations. section 496(n)(3) of the HEA has the Federal Register. required the Secretary to specifically Analysis of Comments and Changes DATES: Effective Date: These final designate whether recognized regulations are effective December 1, The changes to the interim final accrediting agencies have accreditation 2006. regulations included in this document of distance education within the scope were developed through the analysis of FOR FURTHER INFORMATION CONTACT: Ms. of their recognition. Since 1994, comments received on the interim final Gail McLarnon, U.S. Department of accrediting agencies have also been regulations published on August 9, Education, 1990 K Street, NW., 8th required under § 602.22(a)(2)(iii) to 2006. We received 55 comments on the Floor, Washington, DC 20006. provide prior approval for an interim final regulations. Telephone: (202) 219–7048 or via the institution’s addition of courses or An analysis of the comments and of programs that represent a significant Internet at: [email protected]. the changes in the regulations since If you use a telecommunications departure in the method of delivery publication of the interim final device for the deaf (TDD), you may call from those previously offered. The regulations follows. We group major the Federal Relay Service (FRS) at 1– interim final regulations do not modify issues according to subject, with 800–877–8339. these requirements, or add any new appropriate sections of the regulations Individuals with disabilities may ones. referenced in parentheses. Generally, we Changes: None. obtain this document in an alternative do not address technical and other Comments: While supporting our format (e.g., Braille, large print, minor changes and suggested changes effort to draw a clear distinction audiotape, or computer diskette) on the law does not authorize the Secretary between telecommunications and request to the contact person listed to make. We also do not respond to correspondence courses, one commenter under FOR FURTHER INFORMATION comments pertaining to issues that were thought that the language in the CONTACT. not within the scope of the interim final definition of telecommunications course SUPPLEMENTARY INFORMATION: On August regulations. was not specific enough to determine 9, 2006, the Secretary published in the how much interactivity was sufficient. Federal Register interim final Definition of Telecommunications The commenter suggested that the regulations with a request for comments Course (§ 600.2) definition be revised to include (71 FR 45666) for the Federal student Comments: A commenter representing interaction among students and that we financial assistance programs. The accrediting agencies believed that the clarify that ‘‘regular’’ interaction means interim final regulations were effective reference to ‘‘regular and substantive ‘‘not trivial’’ rather than ‘‘at specific on September 8, 2006, and implemented interaction’’ in the definition of intervals.’’ most of the changes made to the HEA telecommunications course was Discussion: The primary purpose of by the HERA, enacted as part of the inconsistent with Congress’ intent to revising the definition of Deficit Reduction Act of 2005 (Pub. L. permit institutions maximum flexibility telecommunications course was to draw 109–171). The interim final regulations in the development and application of a clear distinction between also implemented changes made to the curriculum, and placed an undue telecommunications and HEA by: The Taxpayer-Teacher burden on accrediting agencies. correspondence courses. In drawing this
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distinction, we wanted to avoid as much a foreign school be modified to permit Department will evaluate satisfactory as possible dictating a particular the inclusion of telecommunications academic progress for direct assessment teaching method. The Secretary believes courses. Specifically, the commenters programs. that requiring interaction among suggested the definition be changed to Discussion: Students enrolled in students, as well as between students include a program at a foreign school direct assessment programs who are and the instructor, would preclude that requires on-site attendance in receiving Title IV HEA, program certain teaching methods, such as self- traditional classroom or lab settings in assistance must meet the same paced instruction. at least one class while permitting one satisfactory academic progress We disagree with the commenter on or more additional telecommunications requirements as do students attending the meaning of ‘‘regular’’ interaction. classes, while excluding a program at a other types of programs. However, since We believe the phrase ‘‘regular and foreign school that permits the student direct assessment programs may be substantive’’ means that the interaction to attend courses solely via designed in a variety of ways, we will should both take place at regular telecommunications instruction. determine how we will evaluate intervals and not be trivial. Alternatively, the commenters institutional compliance with Changes: None. suggested that the effective date of the satisfactory academic progress standards Comments: Two commenters regulations be changed to allow foreign on a case-by-case basis as part of the representing financial aid schools to deliver second and initial eligibility review. administrators supported the change in subsequent disbursements of pending Changes: None. the definition of the term loans on or after July 1, 2006 if the first Comments: One commenter thought telecommunications course but asked disbursement was made prior to July 1, that § 668.10(a)(3) was intended to whether instruction by video cassette or 2006. require an institution to develop a disc recording would be considered to Discussion: The final regulations protocol for equating programs be telecommunications coursework. reflect the statutory requirements for an administered under direct assessment Discussion: We believe that the eligible program to include programs rules with clock hours for credit hour definition of telecommunications course offered in whole or in part through measurements, but that the text in the adequately addresses the issue raised in telecommunications instruction by interim final regulations was unclear. the comments. The regulations provide institutions in the United States with The commenter suggested some revised that instruction by video cassette or disc appropriate accreditation. The statute language. recording is telecommunications does not extend this eligibility to foreign Discussion: The commenter is correct coursework when the course involves schools and the Secretary does not have about the intent of the regulations. We the use of other telecommunications the authority to do so by regulation. agree that the commenter’s proposed technologies for regular and substantive In response to the comment regarding revised language is clearer than the interaction between students and U.S. military personnel located abroad, language in the interim final instructor, and when the course is it is the Secretary’s understanding that regulations. offered onsite in the same award year. such students do not usually attend Changes: We have revised Otherwise, the use of video cassettes or foreign schools because they have § 668.10(a)(3) for clarity, but without disc recording is considered a access to programs offered by domestic changing the meaning. correspondence course. institutions. Lastly, the effective date is Treatment of Title IV Funds When a Changes: None. established by the HERA and cannot be Student Withdraws (§§ 668.22, 668.35, changed by regulation. Distance Education (§§ 600.2, 600.7, and 668.173) 600.51, 668.8 and 668.38) Changes: None. Post-Withdrawal Disbursement Comments: One commenter agreed Academic Year (§ 668.3) Counseling that academic programs offered through Comments: One commenter suggested any use of telecommunications or that the Secretary change the definition Comments: Several commenters correspondence by foreign schools of an academic year so that institutions questioned why an institution must should not be eligible for Title IV, HEA can use the same definition as they use obtain the student’s confirmation to program assistance. for grade level in the Stafford Loan apply loan funds to the student’s A few commenters did not believe Program. account, but not to apply other Title IV that the HERA intended to deny Discussion: The definition of an program funds to that account. Several eligibility under the Federal Family academic year in § 668.3 reflects the commenters questioned why an Education Loan (FFEL) Program to a statutory definition in section 481(a) of institution must obtain confirmation student who physically attends a foreign the HEA, and the Secretary cannot that a student wishes to receive grant school but takes a portion of his or her change that definition. funds as a direct disbursement. program through telecommunications Changes: None. Commenters noted that the HERA classes. The commenters felt that it is provision that changed the post- unfair to bar from FFEL eligibility a Direct Assessment Programs (§ 668.10) withdrawal disbursement requirements student who could fulfill a program Comments: One commenter agreed addressed confirmation of receipt of requirement only through that direct assessment programs offered loan funds, but not grant funds. telecommunications coursework at foreign schools should not be Discussion: As in the past, because the class is not offered at the considered eligible for Title IV funding. § 668.164(d)(1) and (d)(2) require an foreign school the student attends. One Discussion: The Secretary appreciates institution to obtain a student’s commenter suggested that U.S. military the commenter’s support. authorization (or a parent’s personnel deployed outside of the U.S. Changes: None. authorization in the case of a parent may need to take courses via Comments: One commenter PLUS loan) to credit the student’s telecommunications instruction as part representing several higher education account with any Title IV, HEA funds of their program of study. associations, and two commenters for charges other than tuition, fees, and The commenters recommended that representing financial aid room and board if the student contracts the definition of an eligible program for administrators, asked how the with the institution for other services.
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An institution may obtain such an students who do not withdraw, but the HERA changed the law to allow the authorization from a student or parent at cease to be enrolled as at least half-time use of scheduled hours only. any time. The HERA added a new students (§ 668.164(g)(3)(iii)). Changes: None. provision that goes beyond the pre- The commenters are correct that a Grant Overpayment Requirements existing requirements in § 668.164(d)(1) conforming amendment to and (d)(2) to require an institution to § 668.165(a)(2) is necessary. For Comments: One commenter suggested obtain confirmation from a student (or students who withdraw and are due a that the regulations be modified to a parent in the case of a parent PLUS post-withdrawal disbursement, the new clarify that the provision that a student Loan) before making any post- post-withdrawal disbursement is not required to return an original withdrawal disbursement of loan funds. procedures in § 668.22 supersede the grant overpayment amount of $50 or This confirmation cannot be made until provisions in § 668.165(a)(2) that require less applies on a Title IV, HEA program- the need for the post-withdrawal an institution to notify a student or by-program basis. disbursement has been determined, i.e., parent of loan funds that are credited to Discussion: The Secretary agrees with after the student withdraws. This a student’s account. Because the new the commenter. change ensures that a student or a post-withdrawal disbursement Changes: Section 668.22(h)(3)(ii)(B) parent has an opportunity after the procedures require an institution to has been revised to make it clear that student’s withdrawal to decline all or a obtain a student’s confirmation (or a the provision that a student is not part of the loan, thus eliminating or parent’s confirmation in the case of a required to return an original grant reducing his or her loan debt. The parent PLUS Loan), the institution does overpayment amount of $50 or less Secretary did not add a similar change not have to notify the student or parent applies on a Title IV, HEA program-by- to the regulations for grant funds again when the institution credits the program basis. because she believes the requirements of loan funds to the student’s account after Comments: Several commenters asked § 668.164(d)(1) and (d)(2) are sufficient it receives the borrower’s confirmation. the Department to raise to $50 the $25 to control the application of grant funds The notification requirement in de minimis amount for overpayments in to a student’s account. § 668.165(a)(2) still applies in all other the Academic Competitiveness Grant The requirement in § 668.164(g)(3)(i) cases when an institution credits loan (ACG) and National SMART grant that an institution obtain confirmation funds to a student’s account. programs and other Title IV programs to that a student wishes to receive a post- Changes: The Secretary has revised match the de minimis grant withdrawal direct disbursement of grant § 668.165(a)(2) to make it clear that an overpayment amount for students who funds is not new. Students are provided institution is not required to notify a withdraw, which was raised to $50 by with an opportunity to refuse direct student or parent of loan funds that are the HERA. disbursements of grant funds so that credited to a student’s account for Discussion: The Secretary does not they may preserve the amount of their students who withdraw and are due a agree that the amounts should grant eligibility if they return to school post-withdrawal disbursement. correspond. The $25 de minimis within the award year. Comments: Several commenters noted standard used in the regulations is Changes: None. that requiring an institution to provide based upon the Department’s Comments: Several commenters felt notification of the outcome of a post- determination of the amount that is cost that the interim final regulations did not withdrawal disbursement request effective for the Department to collect clearly explain how the requirements in ‘‘electronically or in writing’’ is on outstanding balances owed to the § 668.22 are applied in concert with the redundant, because ‘‘in writing’’ means Department. We are able to successfully regulations for making a late through conventional mailing methods pursue collections of $25 or higher with disbursement (§ 668.164(g)(3)) and for or electronically. Internal Revenue Service (IRS) offsets notifying a student, or parent (for a Discussion: The commenters are and other methods. parent PLUS Loan), to provide that correct. Changes: None. student or parent an opportunity to Changes: The reference to electronic Waiver of Grant Overpayment for cancel a loan when the institution notification has been removed from Students Affected by a Disaster credits the student’s account with FFEL, § 668.22(a)(5)(iii)(E). Direct Loan, or Perkins Loan program Comments: One commenter felt that funds (§ 668.165(a)(2)). Many Withdrawals From Clock Hour Programs the regulatory language applying the commenters believed a conforming Comments: One commenter waiver of grant overpayment for amendment was needed to clarify supported the new regulatory provisions students affected by a disaster to whether § 668.165(a)(2) applies in the governing the Return of Title IV Funds students ‘‘whose withdrawal ended case of a post-withdrawal disbursement. in the case of clock hour programs. One within the award year during which the Discussion: The new confirmation commenter felt that the regulations designation occurred or during the next requirements do not apply to late should allow an institution to determine succeeding award year’’ was unclear. disbursements made to students who the percentage of aid earned by a The commenter asked the Secretary to did not withdraw. Section student who withdraws and has clarify that students remain eligible for 668.164(g)(3)(i) requires an institution to completed more clock hours than he or the grant overpayment waiver even if make any post-withdrawal she was scheduled to complete by using they do not return to the same disbursement due to a student who the completed hours, rather than the institution in the following year. withdraws during a payment period or scheduled hours. The commenter noted Discussion: An otherwise eligible period of enrollment in accordance with that this was consistent with the student qualifies for the waiver if he or the new post-withdrawal disbursement previous policy for students she withdraws during the award year procedures. However, the new post- withdrawing from clock-hour programs. during which the major disaster withdrawal disbursement requirements Discussion: Prior to the enactment of designation occurred or during the next do not apply to late disbursements made the HERA, either completed hours or succeeding award year, if the student to students who successfully complete scheduled hours were used to determine withdrew because of the major disaster. the payment period or period of earned aid for a student who withdrew Changes: Section 668.22(h)(5)(iii) has enrollment (§ 668.164(g)(3)(ii)) or to from a clock-hour program. However, been revised to clarify that the grant
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overpayment waiver applies to students The Secretary believes that the sooner assistance benefits paid under the whose withdrawal due to a disaster an institution attempts to contact these Veteran’s Affairs Educational Assistance occurred, rather than ended, within the students, the more likely it is that the Pilot Program and language from award year during which the institution will reach the students. § 685.102(b)(2)(ii), which excludes from designation occurred or during the next Changes: None. estimated financial assistance the succeeding award year. Student Debts Under the HEA and to the amounts of Federal Perkins Loan and Federal Work-Study funds that the Order of Return of Grant Funds U.S. (§ 668.35) student has declined. Comments: One commenter felt that Comments: Several commenters Another commenter requested that the regulations should be changed to suggested that § 668.35(e)(3), which the definition of estimated financial make it clear that an institution will not governs the amount of an overpayment assistance in all three sections be have to return funds to both the ACG that renders a student ineligible for modified to exclude any alternative or and National SMART Grant programs additional Title IV, HEA program private loans not certified by the for the same withdrawal. assistance, be changed from $25 to $50 institution. This commenter suggested Discussion: Because an institution to be consistent with the new statutory that only those loans that the institution may opt to use the period of enrollment, requirement governing repayment of is aware the student is receiving should rather than the payment period, to grant funds under the return of Title IV be included in the definition of perform a Return of Title IV Funds aid provisions. estimated financial assistance. An calculation for a student who withdraws Discussion: The Secretary disagrees additional, similar comment was from a non-standard term or non-term with the commenters. In 2002, we received suggesting that language be program, it is possible, although highly published final regulations to make the added to the definitions in all three unlikely, that both an ACG and a treatment of overpayments consistent in sections to specifically state that only National SMART Grant could be the Title IV, HEA programs, including benefits that an institution is aware of disbursed (or scheduled to be disbursed) incorporating the de minimis amount must be considered estimated financial to a student for the same period. In such concept that applied to grant assistance. a case, funds from both the ACG and overpayments under the return to Title Discussion: Although the list of National SMART Grant programs may IV aid requirements. We decided to use individual veterans’ education benefits need to be returned for the same the $25 de minimis standard for in each of the three sections that define withdrawal. consistency and simplicity, and because estimated financial assistance is not all Changes: None. it is cost effective. We do not believe it inclusive, the Secretary agrees with the is appropriate to raise the de minimis first commenter that, for consistency, Return of Funds Within 45 Days amount applicable to overpayments benefits paid under section 903 of Pub. Comments: One commenter felt that when the Department has the tools and L. 96–342 (Educational Assistance Pilot the Secretary should extend the other resources available to collect these Program) should be included in deadlines under § 668.22 from 30 days amounts. § 673.5(c). However, it would be to 45 days to correspond to the However, as a result of the change in redundant to specifically exclude from extension of the maximum amount of the minimum amount of a grant the definition of estimated financial time an institution has to return repayment for which a student is assistance in § 673.5(c) the amounts of unearned funds for which it is responsible under the return of Title IV Federal Perkins Loan and Federal Work- responsible. The commenter felt this aid provisions from $25 to $50, we are Study funds that the student has extension should also be applied to amending § 668.35(e) to clarify that a declined. Section § 673.5 defines the notifications to students for post- student who owes a grant overpayment term estimated financial assistance for withdrawal disbursements and of $50 or less that is not a remaining the purpose of determining eligibility notifications to students of Title IV grant balance and is a result of the return of for campus-based funds. It would not overpayments resulting from Title IV aid calculation is eligible to make sense to exclude campus-based withdrawal. The commenter asserted receive additional Title IV, HEA funds declined by a student from the list that a uniform deadline makes sense program assistance. of items used to determine that because the same Return of Title IV Changes: We have added a new student’s eligibility for those campus- Funds process leads up to all three paragraph (4) to § 668.35(e) to clarify based funds. If a student declines funds requirements, and consistency would that a student who owes a grant from a campus-based program, the help ensure compliance. overpayment of $50 or less under the amount of those declined funds would Discussion: Institutions have circumstances explained above is not be used to determine eligibility for previously indicated that they needed eligible to receive additional Title IV, campus-based funds. an extension of the former 30-day return HEA program assistance. With respect to the proposal to define deadline to provide additional time to estimated financial assistance as perform the administrative functions Estimated Financial Assistance including only loans of which the necessary to return the funds. The (§§ 673.5, 682.200, and 685.102) institution is aware, we note that, under actual calculation of earned funds is not Comments: One commenter suggested the administrative capability guidelines time consuming. The Secretary believes that we add benefits paid under Section in § 668.16(b) and (f), an institution that providing institutions with over 903 of Pub. L. 96–342 (Educational must have a mechanism in place for four weeks to enter information from Assistance Pilot Program) that is obtaining and reviewing all information their records and calculate the amount currently in the definition of estimated it receives that has a bearing on a to be returned is more than sufficient. financial assistance in §§ 682.200(b) student’s eligibility for Title IV, HEA With regard to the request that the and 685.102(b) to the definition of assistance. The institution must Secretary extend the 30-day deadlines estimated financial assistance in communicate this information to the for notifications to students, the § 673.5(c). The commenter also individual designated to administer the Secretary does not believe it is in the suggested that we add language in Title IV programs at the institution. In best interest of students to extend these § 682.200(b)(1)(iv), which includes in light of this requirement, we believe that deadlines merely for consistency’s sake. the definition of estimated financial it is unlikely that a student will be
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receiving loans of which the institution forbearances when notified by the obtained Perkins Loan under § 674.39 of is not aware. Secretary that exceptional the Perkins Loan program regulations, Changes: The definition of estimated circumstances exist, such as a local or the borrower would regain eligibility for financial assistance in § 673.5(c)(1)(ix) national emergency or a military additional Title IV, HEA program has been revised to include benefits mobilization. Some borrowers may assistance without having repaid the paid under section 903 of Pub. L. 96– qualify for a military deferment on loans fraudulently obtained loan in full, as 342 (Educational Assistance Pilot first disbursed on or after July 1, 2001 required by the HERA. Program). A technical change has also and also may qualify for a mandatory We do not agree with the commenter’s been made to correct the reference in administrative forbearance on loans first contention that an institution will not § 685.102(b)(1)(ix) from ‘‘paragraph disbursed before July 1, 2001. However, know if a borrower was found guilty of (2)(iii)’’ to ‘‘paragraph (2)(iv)’’. not all borrowers who qualify for a fraud. The institution would almost military deferment necessarily qualify certainly be involved in any legal Military Deferment (§§ 674.34, for a mandatory administrative proceedings relating to a Perkins Loan 682.210(t), 682.211(i) and 685.204) forbearance. that was fraudulently obtained from that Comments: One commenter Changes: None. institution. recommended that we extend eligibility Comments: Several commenters Changes: None. recommended that we change the name for the new military deferment Definition of Satisfactory Repayment of the prior military deferment that is established by the HERA to Perkins Arrangement (§§ 682.200 and 685.102) Loans disbursed before July 1, 2001 if available to borrowers with loans made the borrower received at least one before July 1, 1993, to the ‘‘Armed Comments: Several commenters Perkins Loan first disbursed on or after Forces deferment’’, to avoid confusion pointed out that the standard for an on- July 1, 2001. with the new military deferment time payment for purposes of Discussion: Section 8007(f) of the enacted by the HERA. rehabilitating a loan is now different HERA specifies that the military Discussion: The FFEL and Direct Loan from the standard for an on-time deferment applies to loans ‘‘for which Public Service Deferment Request forms payment for purposes of making the first disbursement is made on or do not use the term ‘‘military satisfactory repayment arrangements on after July 1, 2001.’’ The Secretary does deferment’’ to refer to the pre-July 1, a defaulted loan to regain Title IV, HEA not have the authority to extend 1993 military deferment mentioned in program assistance eligibility. Under the eligibility for the military deferment to the comments. Instead, these forms refer rehabilitation rules, an on-time payment loans for which the first disbursement to borrowers who are ‘‘on active duty in is a payment made within 20 days of the was made before July 1, 2001. the Armed Forces of the United States.’’ due date. Under the satisfactory Changes: None. These forms are the primary source of repayment arrangement rules, an on- Comments: Some commenters asked information to borrowers on the prior time payment is a payment made within if a qualified borrower who experiences military deferment. Accordingly, we do 15 days of the due date. Since some multiple deployments could receive not believe that there will be any borrowers make satisfactory repayment separate deferments for each of his or significant confusion among borrowers. arrangements and attempt loan her eligible Perkins, FFEL and Direct Moreover, we believe that re-naming the rehabilitation concurrently, the Loan program loans, as long as each old military deferment in the commenters recommended using within deferment period did not last longer regulations serves no purpose. 20 days of the due date as the on-time than the three-year maximum. Changes: None. standard for both purposes. Discussion: The three-year maximum Discussion: The making of six Perkins Loan Rehabilitation (§ 674.39) for the military deferment applies to consecutive monthly payments under each loan, not to the borrower. If a Comments: One commenter satisfactory repayment arrangements borrower receives a military deferment questioned the statutory basis for restores Title IV, HEA program on a loan for three years, or receives denying a borrower who has been assistance eligibility to a defaulted multiple military deferments on a loan convicted of, or has pled nolo borrower. We believe that the standard that add up to three years, that loan no contendere or guilty to, a crime for on-time payments for purposes of longer qualifies for a military deferment. involving fraud in obtaining the Perkins regaining eligibility for Title IV, HEA If the borrower goes back to school, Loan the opportunity to rehabilitate the program assistance should be stricter obtains more Title IV loans, and then is defaulted Perkins Loan. The commenter than the standard for rehabilitation of a called back to active duty, the new loans questioned the statutory basis for defaulted loan. In addition, the on-time would qualify for up to three years of denying loan rehabilitation to such payment standard for borrowers who are military deferment. However, the older borrowers. The commenter also in a regular repayment status requires loan that has already been in a military contended that institutions have no that the payments be made within 15 deferment for the three-year maximum reasonable way of knowing whether a days of the due date. We do not believe would not qualify for a military borrower has been convicted of, or has that it is appropriate to provide a longer deferment. pled nolo contendere or guilty to, a period for on-time payments for Changes: None. crime involving fraud in obtaining a borrowers who are in default on their Comments: Several commenters Perkins Loan. loans than for borrowers who are recommended that we confirm that a Discussion: Section 8021(a) of the current on their loans. Borrowers in lender has the authority to grant a HERA provides that a student who has default should be held to an on-time mandatory administrative forbearance, been convicted of, or has pled nolo standard that is at least as strict as the as provided for in § 682.211(i), on a contendere or guilty to a crime standard applied to current borrowers, borrower’s pre-July 1, 2001 loans, if the involving fraud in obtaining Title IV, not rewarded with extra time to make a borrower qualifies for a military HEA program assistance is not eligible payment. Finally, we note that Congress deferment on loans that were first for additional Title IV assistance unless did not apply the 20-day standard disbursed on or after July 1, 2001. he or she has repaid the fraudulently adopted for the loan rehabilitation Discussion: FFEL lenders are required obtained Title IV aid. If a borrower were program to borrowers in other to grant mandatory administrative permitted to rehabilitate a fraudulently situations.
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Changes: None. Student PLUS Loan for the same period mirrors the existing provisions in of enrollment. These commenters § 685.211(e)(4) of the Direct Loan Eligible Borrower (§§ 682.201 and recommended revising the PLUS loan regulations. The revised § 682.201(d)(2) 685.200) student eligibility requirements in both precludes a borrower who obtained a Comments: Two commenters the FFEL and Direct Loan programs, to Title IV loan by identity theft, fraud, or recommended adding language to stipulate that a graduate or professional some other illegitimate means from §§ 682.201 and 685.200 to provide that student’s annual loan maximum consolidating the ineligible loan. a student borrower is not eligible for eligibility for either a FFEL Stafford However, we do not believe that the Title IV, HEA program assistance unless Loan or a Direct Stafford/Ford Loan, as HERA prohibits a borrower who has the borrower has repaid any Title IV, applicable, must be determined before obtained loans for which the borrower HEA program assistance obtained by awarding the student a PLUS Loan. is ineligible from consolidating loans for fraud, if the student has been convicted Discussion: The Secretary has which the borrower is eligible, and we of, or has pled nolo contendere or guilty previously issued guidance stating that do not believe we have the authority to to, a crime involving fraud in obtaining a graduate or professional student’s impose such a restriction by regulation. Title IV, HEA program assistance. These maximum annual Stafford Loan We believe the revision to commenters also recommended that we eligibility must be determined before § 682.201(d)(2) adequately addresses revise § 682.201 to list the general the student applies for a PLUS Loan, commenters’ concerns and that revising eligibility requirements for all although the student is not first required § 682.201(d)(1) is unnecessary. borrowers, and then the requirements to borrower up to his or her maximum Changes: We have replaced that are specific to each loan type. The annual Stafford Loan limit before ‘‘responsible’’ with ‘‘ineligible’’ in commenters felt that this approach receiving a PLUS Loan. If a school § 682.201(d)(2). would be more efficient and eliminate participates in both the FFEL and Direct Eligibility for a Direct Consolidation unnecessary redundancies. Loan programs, the school must Loan (§§ 682.201, 685.100 and 685.220) Discussion: The interim final determine the borrower’s maximum regulations in §§ 668.32(m) and annual Stafford Loan eligibility under Comments: Two commenters 668.35(i) include the new eligibility the program the school is participating recommended that we amend the FFEL provision that prohibits a student in for Stafford Loan purposes. We agree and Direct Loan program regulations to borrower from obtaining Title IV, HEA that this guidance should be clarify that, in the case of a borrower program assistance unless the borrower incorporated in the regulations. who wishes to consolidate a Federal has repaid any Title IV, HEA program Changes: We have revised Consolidation Loan that has been assistance obtained by fraud. Section §§ 682.201(b)(3) and 685.200(b)(1)(iv) to submitted for default aversion into the 682.201(a) and (b) of the FFEL specify that a graduate or professional Direct Loan Program, the borrower must regulations stipulate that a Stafford student’s maximum annual Stafford be delinquent or in default on the Loan borrower and a student PLUS Loan eligibility under either the Direct Federal Consolidation Loan at the time borrower, respectively, must meet the Loan or FFEL program must be the borrower applies for the Direct eligibility requirements in 34 CFR part determined before the student applies Consolidation Loan. The commenters 668 to qualify for a Stafford Loan. for a PLUS Loan. believed that the current regulatory Similar references to the eligibility Comments: Two commenters language would allow a borrower to requirements in 34 CFR part 668 are in recommended that § 682.201(d)(1) be consolidate a Federal Consolidation § 685.200(a)(1)(ii) and 685.200(b)(1)(ii) revised to stipulate that a borrower who Loan on which the borrower is current of the Direct Loan regulations. We obtained a loan by identity theft or some on making payments into a Direct believe that it would be redundant to other illegitimate means, or who Consolidation Loan, if the Federal include the language regarding the obtained a loan for which he or she was Consolidation Loan had been submitted student eligibility requirements already ineligible, may not consolidate that for default aversion at some time in the outlined in part 668 in §§ 682.201 and loan. In addition, these commenters past. 685.200. recommended that these borrowers not Discussion: We agree that Federal We disagree with the suggestion that be permitted to consolidate loans for Consolidation Loans that are currently restructuring § 682.201 would be more which the borrower is eligible until the delinquent or in default may be efficient. In developing the interim final loans for which the borrower was consolidated into a Direct Consolidation regulations, we determined that the ineligible have been paid in full. Several Loan. However, we do not believe that most efficient and easily understandable commenters noted that new it is necessary to amend the current way to incorporate the changes § 682.201(d)(2) states that a borrower regulatory language in §§ 682.201, mandated by the HERA into § 682.201 may not consolidate a loan for which 685.100 and 685.220 to state this was to fit the changes into the existing the borrower is wholly or partially requirement more explicitly. structure of this section. We believe that responsible. Because our revision Changes: None. it is easier to identify changes that we stipulating that a borrower who Comments: Several commenters urged have made to a section if the overall obtained a loan by identity theft or some the Secretary to clarify that borrowers structure of the section remains other illegitimate means, or who with defaulted Federal Consolidation consistent with past versions of that obtained a loan for which he or she was Loans are eligible to consolidate into the section. Although some redundancy is ineligible, may not consolidate that loan Direct Loan Program, without including unavoidable with this approach, we was unclear, several commenters asked another eligible loan, for the purpose of have reduced the redundancies through if the word ‘‘not’’ was inadvertently obtaining an income contingent the use of cross-references. dropped from this section. repayment (ICR) plan. Section Changes: None. Discussion: Section 682.201(d)(2) of 428C(a)(3)(B)(i)(IV) of the HEA provides Comments: Several commenters noted the interim final regulations should this option for borrowers with that a student borrower may receive a have read, ‘‘A borrower may not delinquent Federal Consolidation Loans Federal Direct Subsidized Stafford/Ford consolidate a loan under this section for that have been submitted to the Loan or a Federal Direct Unsubsidized which the borrower is wholly or guaranty agency for default aversion. Stafford/Ford Loan and a FFEL Program partially ineligible.’’ This language The commenters believed that this
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provision of the law, which was added Discussion: Section 427A(l) of the revised to provide that an escrow agent, by the HERA, was intended to provide HEA provides that nothing shall as the lender’s agent, could disburse the ICR option to borrowers who are prohibit a lender from charging a loan funds directly to a borrower in a either seriously delinquent or in default borrower an interest rate less than the study-abroad program at the borrower’s on their Federal Consolidation Loans. rate specified in the statute. request. They also noted that the statutory Accordingly, we do not have the Discussion: We agree with the language does not distinguish between statutory authority to require lenders to commenters that there is a difference non-defaulted and defaulted borrowers, charge all borrowers the same interest between the discussions of the 10-day and that any default claim filing would rate. period in the preamble and in the have been preceded by a default Changes: None. interim final regulations. The language in the interim final regulations that aversion submission. Insurance Premium and Federal Default Discussion: The commenters are states that the escrow agent shall Fees (§§ 682.202(d)(2) and correct in reading the regulations transmit loan proceeds received from a 682.401(b)(10)) implementing the changes made to lender to a school not later than 10 days section 428C(a)(3)(B)(i)(IV) of the HEA Comments: One commenter stated after the agent receives the funds from to allow a borrower to consolidate a that the changes made to the lender accurately reflects our policy single defaulted Federal Consolidation §§ 682.202(d)(2) and 682.401(b)(10) in on this issue. Loan into the Direct Loan Program for the interim final regulations appear to A revision to § 682.408(c)(2) reflecting the purpose of obtaining an ICR plan. eliminate the authority of a lender or the reduction from 21 to 10 days for We believe that the regulatory language guaranty agency, under § 682.209(f)(4), disbursement through an escrow agent is sufficiently clear and that it is not to charge a guarantee fee to a borrower is unnecessary. Paragraph (c)(2) of necessary to revise the regulations to who is refinancing a fixed rate PLUS § 682.408 was incorporated into new state this more explicitly. Loan or a Supplemental Loans for § 682.408(c) in the interim final An otherwise eligible borrower may Students (SLS) Loan made prior to July regulations and the reduction from 21 to also consolidate a single Federal 1, 1987 under § 682.209(f)(1). The 10 days for disbursement through an Consolidation Loan into the Direct Loan commenter believes that the HERA escrow agent is reflected in this new Program for the purpose of obtaining an provisions that changed the optional paragraph. income contingent repayment plan if insurance premium to a mandatory We agree with the commenters who the borrower has filed an adversary Federal default fee did not remove a recommended that § 682.408(c) be complaint in a bankruptcy proceeding lender’s or guaranty agency’s authority revised to provide that an escrow agent, seeking to have the Federal to charge a guarantee fee in these cases. as the lender’s agent, could disburse Consolidation Loan discharged, Discussion: We agree that the HERA loan funds directly to a borrower in a regardless of whether that Federal did not remove a lender’s or guaranty study-abroad program at the borrower’s Consolidation Loan is current, agency’s authority to charge a guarantee request. delinquent, or in default. A borrower fee if a borrower refinances a fixed rate Changes: We have amended who is seeking to have a Federal PLUS or SLS loan made prior to July 1, § 682.408(c) to clarify that an escrow Consolidation Loan discharged in 1987. However, we believe the existing agent may disburse Stafford Loan bankruptcy should be treated the same language in § 682.209(f)(4), which proceeds directly to a borrower who is as a borrower whose loan has been specifically states that the refinancing attending a study-abroad program and submitted for default aversion. A lender may charge the borrower a who requests a direct disbursement borrower who seeks to have a loan guarantee fee in these circumstances, from the lender. discharged in bankruptcy is clearly already addresses this issue. Due Diligence in Disbursing a Loan stating his or her intent not to repay the Changes: None. (§§ 682.207 and 682.604) loan, but the bankruptcy filing Loan Disbursement Through an Escrow precludes the submission of a default Comments: Several commenters Agent (§§ 682.207(b)(1)(iv) and disagreed with our determination that aversion request. Offering the Direct 682.408(c)) Loan Program ICR option to such a PLUS Loan funds cannot be disbursed borrower provides an alternative to Comments: Many commenters noted directly to a borrower enrolled in a having the loan discharged in that the discussion in the preamble of study-abroad program or at a foreign bankruptcy. the interim final regulations related to school. The commenters believed that Changes: None. the new 10-day deadline for a lender to the ‘‘same terms and conditions’’ pay funds to an escrow agent for provision in section 428B(a)(2) of the Permissible Charges by Lenders to disbursement to a school differed from HEA permits retention of the prior Borrowers (§ 682.202(a)) the regulatory language and requested policy allowing direct disbursement of Commments: One commenter urged clarification. The commenters indicated PLUS Loan funds. The commenters the Department to develop and publish that the preamble stated that the transfer noted that, while the PLUS funds check regulations to restrict a lender’s ability of loan funds must take place no earlier must still be made co-payable to the to charge an FFEL Program borrower an than 10 days prior to disbursement to institution and the borrower under interest rate that is less than the rate the borrower, while the regulations 428B(c)(2) of the HEA, disbursing funds specified in the HEA and the program indicated that the 10 days referred to the directly to a borrower to be endorsed regulations. The commenter believes transfer of the loan funds to the school and mailed to an institution may assist that the regulations should require prior to the school’s delivery of the borrowers in paying for expenses while lenders to charge all borrowers the same funds to the borrower. A couple of traveling to a foreign school. rate to stop lenders from using interest commenters indicated that an additional Discussion: Section 428B(a)(2) of the rates to discriminate between change was needed to § 682.408(c)(2) to HEA does not authorize the Secretary to institutions and borrowers based on reflect the reduction from 21 to 10 days establish disbursement rules for PLUS inequitable criteria or to eliminate for disbursement through an escrow Loans made to pay for attendance at competition in the student lending agent. Several commenters also foreign institutions or for students market. recommended that § 682.408(c) be enrolled in study-abroad programs that
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are different from the rules for other continuing student’s enrollment (at least Parental Leave and Working Mother FFEL Loans for attendance at those half-time) supports eligibility for the Deferments (§§ 682.210(o) and (r) and institutions. loan disbursement. As the commenter 685.204(d)(2)) Changes: None. noted, a change in enrollment status Comments: Many commenters asked Comments: One commenter suggested would affect a student’s eligibility for a that the regulations in whether the deletion of section loan only if the student has dropped 428(b)(7)(A)(ii) from the HEA by the § 682.207(b)(1)(v)(C)(1) be revised to below half-time enrollment. Therefore, clarify that a lender or guaranty agency HERA effectively eliminated the the lender or guaranty agency need only must verify a student’s enrollment with parental leave and working mother confirm that the student is still enrolled the home institution, rather than with deferments for borrowers with loans the foreign school, before making a at least half-time. disbursed before July 1, 1993. The direct disbursement to a student in a Because of concerns with timeliness commenters are concerned that these study-abroad program. and security, the Secretary does not deferments will not be available to an Discussion: The Secretary agrees with believe that all forms of contact are otherwise eligible borrower because the the commenters. appropriate for the verification of borrower must waive up to one month of the borrower’s grace period in order Changes: Section enrollment. However, the Secretary does to meet the eligibility criteria for the 682.207(b)(1)(v)(C)(1) has been revised agree that contact by facsimile is deferment. to clarify that a lender or guaranty acceptable. agency may make a disbursement Discussion: The requirement that a directly to a student enrolled in a study- The Secretary agrees that not just any borrower waive at least one month of abroad program only after verification of individual at a foreign school should be the grace period so the borrower may be the student’s enrollment with the home permitted to authorize a disbursement certified as having been enrolled at least institution. directly to a student. In DCL GEN–06– half time within the six-month period Comments: One commenter did not 11, the Department asked foreign preceding the deferment start date in agree that a lender or guaranty agency schools to use the modified institutional § 682.210(o) applies only to the parental should be required to verify that a eligibility electronic application (EAPP) leave deferment. Deferments are a term continuing student is still enrolled at to enter the names of the individuals and condition of the borrower’s the enrollment status for which the loan who are authorized by the school to promissory note. The Congress, in was certified before making a certify FFEL Loan applications. The making changes to the HEA historically, disbursement of Stafford Loan funds DCL noted that the Department expects has not eliminated deferments already directly to a student at a foreign school. guaranty agencies or lenders to contact granted to a borrower as a term and The commenter noted that, although the these individuals, whose names will be condition of the borrower’s loan, and it preamble stated that the verification accessible in the Department’s does not appear that Congress intended requirements in the regulations are Postsecondary Education Participants to do so in this case. Accordingly, otherwise eligible borrowers may based on those in Dear Colleague Letter Systems (PEPS), to verify enrollment. To continue to waive a month of the grace (DCL) G–03–348, this requirement the extent that a foreign school notifies differs from that in the DCL, which period, if necessary, in order to qualify a guaranty agency or lender of other simply required verification that the for the parental leave deferment. individuals who are authorized to student was accepted for enrollment at Changes: None. provide this information, the guaranty the foreign school. The commenter felt Forbearance (§ 682.211) that the institution should be agency or lender must verify the responsible for notifying the lender if information with at least one of the Comments: Several commenters the borrower’s enrollment status persons entered by the school on the suggested that we eliminate changed to less than half-time. EAPP that those officials are authorized § 682.211(h)(3) of the FFEL regulations A couple of commenters did not to act on behalf of the institution in because section 8014(e) of the HERA believe that the regulations should limit administering the FFEL Program. To amended the HEA to remove the how a lender or guaranty agency may allow the Secretary the flexibility to requirement that the terms of a contact a foreign school or home change this process in response to mandatory forbearance be in writing. institution to verify enrollment. The possible systems changes, the Secretary Discussion: While we agree that the commenters felt that other forms of does not believe that the procedures for HERA eliminated the requirement that contact, in addition to contact by this contact should be specified in the the terms of a mandatory forbearance telephone or e-mail, such as facsimile, regulations. However, the Secretary has agreement be in writing, we also note should be acceptable. decided that the regulations should that the HERA requires that the terms of One commenter was concerned that require guaranty agencies and lenders to a mandatory forbearance agreed to by the regulations do not specify who at a contact foreign schools in accordance the lender and the borrower or endorser foreign school may authorize a with any procedures specified by the be documented by a confirmation notice sent by the lender to the borrower/ disbursement to be sent directly to a Department. borrower. The commenter felt that this endorser and by the lender recording gap left the process open to abuse. Changes: Section 682.207(b)(2)(i) has the terms in the borrower’s file. We Discussion: The intent of the statutory been revised to permit a lender or believe that, with the exception of requirement is to require a confirmation guaranty agency to contact a foreign administrative forbearances in that a student who is attending or plans school via facsimile to verify a student’s § 682.211(f), the same procedures to attend a foreign school is actually enrollment. In addition, should apply to all the forbearances. eligible to receive FFEL funds when § 682.207(b)(2)(i)(A) has been changed The interim final regulations amended those funds will not be sent to the to require guaranty agencies and lenders § 682.211(b)(1) to reflect the new school, but will be disbursed directly to to contact foreign schools in accordance forbearance requirements. We believe a student. Therefore, we believe it is with any procedures specified by the that § 682.211(h)(3) should also be appropriate to require a lender or Secretary. changed to reflect the new requirements guaranty agency to confirm that a that the lender send a notice to the
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borrower/endorser and include a The commenters pointed to the other interested parties) an orderly notation in the borrower’s file explanation of certain terms in statement of the requirements for confirming the forbearance rather than § 682.302(f) as an example of the acquiring and continued eligibility for simply eliminating the requirement for changes that they felt were being 9.5 percent SAP for all cohorts of loans, a written forbearance agreement. improperly applied retroactively. both as in effect before the 2004 and Changes: We have amended Discussion: The changes made to 2006 amendments to the HEA, and § 682.211(h)(3) to reflect these changes. § 682.302 are not retroactive. Prior to the under the 2004 and 2006 amendments publication of the August 9 interim final to the HEA. The interim final Teacher Loan Forgiveness (§§ 682.215(c) regulations, the regulatory provisions in regulations did not create or change the and 685.217(c)) § 682.302 had not been updated since terms, conditions, and requirements for Comments: One commenter noted 1994, except for a change to reflect the the eligibility for the 9.5 percent SAP that the use of the word ‘‘either’’ with 1993 statutory amendment that from those which already existed under regard to a borrower qualifying for eliminated the 9.5 percent minimum applicable law. To the extent that loan teacher loan forgiveness based on special allowance payment (SAP) rate holders were in compliance with the teaching special education in ‘‘either an on loans acquired with funds from a tax- requirements of: (1) The then-current eligible elementary or secondary exempt obligation originally issued on regulations; (2) applicable prior school’’ could be misinterpreted. The or after October 1, 1993. Thus, the prior Department interpretations of those commenter recommended removing the regulations did not reflect guidance regulations and the HEA; and (3) word ‘‘either’’ to make it clear that a issued by the Department since 1993 to changes made by the TTPA and by the borrower could combine teaching interpret the HEA and the regulations HERA, the billing status of loans was service in an eligible elementary school (DCL L–93–161 (November 1993), L–93– not changed with the publication of the and an eligible secondary school to 163 (December 1993), and L–96–186 interim final regulations. qualify for teacher loan forgiveness as a (March 1996), FP–05–01 and FP–06–01) Changes: None. highly qualified special education or the changes made to those Comment: Several commenters teacher. requirements by the TTPA or HERA. claimed that § 682.302(e)(2) and (3) Discussion: Use of the word ‘‘either’’ The regulations must reflect the rules improperly requires that a loan acquired was not intended to imply that service for the special allowance eligibility of with pre-October 1, 1993 tax-exempt as a highly qualified special education both loans for which SAP at the 9.5 funding be ‘‘financed continuously’’ by teacher in an eligible elementary school percent minimum rate is now claimed tax-exempt financing to retain eligibility and service as a highly qualified special and loans on which this rate may be for SAP at the 9.5 percent minimum education teacher in an eligible claimed in the future. The TTPA placed rate. Some believed that the secondary school could not be significant restrictions on the eligibility interpretations on which the combined to qualify a borrower for of new loans for the 9.5 percent SAP, Department relied in adopting the teacher loan forgiveness. and the HERA significantly restricted interim final regulations had not been Changes: We have removed the word whether additional loans could acquire communicated to the public, or that the ‘‘either’’ from §§ 682.215(c)(3)(ii)(B), eligibility. However, the eligibility of regulations went beyond merely 682.215(c)(4)(ii)(B), 685.217(c)(3)(ii)(B), the great majority of loans on which a updating existing regulations to reflect and 685.217(c)(4)(ii)(B). 9.5 percent SAP is now and will be longstanding policy. Another claimed depends on, or may be affected commenter questioned whether the Payment of Special Allowance on FFEL by, transactions such as various ‘‘debt’’ to which § 682.302(e)(2)(i)(B) Loans (§ 682.302) refinancing transactions that occurred refers to as having been ‘‘refinanced’’ is Comments: One commenter asked us prior to the effective date of either the a student loan or a bond. to clarify the effective date for the TTPA or HERA. The prior regulations Discussion: The term ‘‘financed change made by the HERA to the did not state the consequences of some continuously’’, to which the comments calculation of special allowance of those transactions, even though those refer, appears only in § 682.302(e)(2). payments for PLUS Loans. consequences had been well settled, Section 682.302(e)(2) describes the Discussion: As reflected in the interim under the Department’s interpretations special allowance rate applicable to any final regulations, PLUS Loans made of the law in effect when the loan acquired with funds from a source after January 1, 2000 are no longer transactions occurred. To clarify the that makes the loan eligible for a SAP subject to the minimum 9 percent requirements for 9.5 percent SAP at the 9.5 percent minimum rate that has trigger for special allowance payments. eligibility, the interim final regulations been refinanced. All loans that are In accordance with the effective date for first incorporate these interpretations, initially eligible for a 9.5 percent SAP the provision of the HERA that made and then address changes made by the and have been refinanced can be this change, lenders will be paid special TTPA to the continued eligibility of divided into two mutually exclusive allowance on these loans for activity these loans for 9.5 percent SAP, and by groups. The first group includes only beginning April 1, 2006, which will be the HERA as to whether loans may those loans that have been refinanced reflected on billing reports submitted to acquire that eligibility. exclusively and continuously from tax- the Department after June 30, 2006. The interim final regulations include exempt sources. The second group Changes: None. in § 682.302(f) an explanation of certain includes all loans not in the first group. Comments: Some commenters, terms (refinance and originally issued) The phrase ‘‘financed continuously’’ is particularly from the FFEL industry, that reflects Departmental used to describe the first group, not to claimed that the regulations are interpretations and usage of those terms exclude the second group from potential impermissibly retroactive. In particular, historically. Based on that usage, it is eligibility for SAP at the 9.5 percent these commenters claimed that the reasonable to conclude that the terms minimum rate. The interim final interim final regulations improperly are already generally understood as regulations contained no provisions that applied the statutory changes made by explained in the regulations. limit continued eligibility for SAP at the the Taxpayer-Teacher Protection Act of The interim final regulations, as 9.5 percent minimum rate only to loans 2004 (TTPA), and the HERA, to periods published on August 9, 2006, do no in the first group—those loans before those statutes became effective. more than provide loan holders (and continuously refinanced from tax-
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exempt sources. Some loans in the minimum return rate as discussed in particular language.1 We also believe second group also retain that eligibility DCL 96–L–186 (March 1996). that the language should be revised to after refinancing. The regulations add The regulations use the words ‘‘a loan make it clear that a tax-exempt no condition on 9.5 percent SAP is refinanced’’ to describe the refunding, or series of such refundings, eligibility that was not already refinancing of an individual student of a tax-exempt obligation does not contained in the statute or regulations. loan. The term ‘‘refinance’’ is commonly change the SAP status of loans made or The regulations accurately reflect used as well to refer to the refunding of purchased with funds obtained from the Department interpretations of applicable an outstanding bond or other financial first such tax-exempt obligation so law that establish which SAP rate obligation. The regulations in refunded, as described in paragraph (b). applied to loans refinanced using tax- § 682.302(e)(2)(i) use the phrase to refer Changes: The interim final regulations exempt sources. The Department has to a bond or other instrument issued to were intended to state, and not change, had numerous discussions with refund an existing bond or other existing law. Accordingly, we have program participants who have cited obligation of the issuer. revised § 682.302 to state, in new these interpretations and it is clear that Changes: Section 682.302(e)(2) as paragraph (f)(2)(i), that an obligation the the loan industry has been aware of the revised in the interim final regulations proceeds of which are used to make or Department’s interpretation of these effectively explains the applicability of purchase loans, including by pledge as terms. The regulations in the SAP rates and so it is not necessary collateral for that obligation, is § 682.302(e)(2)(i)(A) and (B) describe the for us to retain paragraph (c)(5) of considered to be originally issued on the first group of refinanced loans—those § 682.302. Therefore, subparagraph date it is issued. The limitation that continuously refinanced using tax- (c)(5) is removed. loans are considered purchased only if Comments: One commenter objected exempt sources—and state that such the Authority has neither an existing to the explanation in § 682.302(f)(2) that loans qualify for a SAP at the 9.5 legal or equitable interest in the loan is a bond is considered to be ‘‘originally percent minimum return rate. removed. Second, the regulation is issued’’ when issued to obtain funds to These regulations rest squarely on the revised to add a new paragraph (f)(2)(ii) make or acquire loans in which the to address specifically a tax-exempt Department’s interpretation of the HEA Authority did not have an interest. This as articulated in previous guidance obligation that refunds, initially or in a explanation, the commenter noted, series of such refundings, a tax-exempt issued in DCL 93–L–161 (November would exclude a tax-exempt obligation 1993), p. 13; Dear Colleague Letter 93– obligation the proceeds of which were issued to refund an existing taxable used to make or purchase loans (one L–163 (December 1993), p. 2. Under the bond or to refinance loans already held Department’s interpretation of the described in paragraph (f)(2)(i)). Such a by the Authority. The provision would tax-exempt refunding obligation is regulations included in the DCLs, loans thus disqualify from eligibility for the that were eligible for the 9.5 percent considered to be originally issued on the 9.5 percent SAP loans acquired with date on which the initial tax-exempt SAP rate prior to a tax-exempt proceeds of those obligations, even if refinancing remained eligible after that obligation, described in paragraph they had been issued prior to October 1, (f)(2)(i), was issued. refinancing. Because refinancing from 1993. tax-exempt sources does not alter Discussion: The provision addressing Basic Program Agreement (§ 682.401) eligibility of the loan for the 9.5 percent the phrase ‘‘originally issued’’ is used to Comments: One commenter requested SAP rate, there is no need to distinguish explain how the October 1, 1993, that we revise § 682.401(b)(10)(iii) to between loans involved in a single tax- deadline affects at least four different clarify that a lender is required to charge exempt refinancing and those involved types of tax-exempt obligations: (a) an insurance premium or Federal in a series of tax-exempt refinancings. Obligations used to obtain funds to default fee. The regulations therefore include in this make loans or acquire loans from third Discussion: Sections first group all loans that have been parties; (b) obligations that refund a pre- 682.401(b)(10)(i)(A) and (B) clearly associated only with a tax-exempt October 1, 1993, qualifying obligation or states, with the exception of a refinancing, without regard to the are part of a series of such refunding Consolidation Loan or SLS or PLUS number of those refinancings. The issues; (c) obligations used to refund a Loan refinanced under § 682.209(e) or phrase ‘‘financed continuously by tax- taxable obligation of the issuer; and (d) (f), the requirements on the collection of exempt obligations,’’ in obligations used to obtain funds to insurance premiums and Federal default § 682.302(e)(2)(i)(B)(2) simply describes acquire loans that the Authority made or fees by a guaranty agency. Further loans associated exclusively with tax- purchased using funds from either a clarification is unnecessary. exempt refinancing. taxable obligation or a tax-exempt Changes: None. The regulations do not exclude from obligation issued on or after October 1, Comments: Several commenters eligibility for the 9.5 percent SAP loans 1993, but not to refund that obligation. requested that a change be made to affected by other refinancings. The The language in § 682.302(f)(2) to § 682.401(b)(14) to reflect the payment Department’s regulations in which the commenter objects clearly to lenders of exempt, lender-of-last- § 682.302(e)(2)(ii) describe loans applies to the ‘‘new money’’ issues, resort, and other claims that may be refinanced from sources other than described in paragraph (a) above. paid at 100 percent insurance. qualified tax-exempt sources. This However, we agree with the commenter Discussion: This section of the FFEL second group consists of two subgroups, that the language could be read to regulations outlines the basic program which are distinguished by the exclude from tax-exempt special agreement between the guaranty agency treatment of the tax-exempt obligation allowance treatment loans acquired and the Secretary. Specifically, affected by the refinancing. If the prior with funds from tax-exempt obligations § 682.401(b)(14) outlines the guarantee tax-exempt obligation is retired or described in paragraphs (c) and (d), deceased, SAP is payable at the taxable even if the tax-exempt bond had been 1 The term purchase includes acquisition of an rate. This rule has been in effect since issued before October 1, 1993. That interest in a loan by means of a pledge of the loan, and the 1985 regulations implicitly interpret the 1985. If the prior tax-exempt obligation result would be contrary to the position term purchase as used in section 438 of the HEA has not been retired or defeased, SAP taken in the 1985 regulations and to include acquisition of a loan by pledge, not remains payable at the 9.5 percent contrary to our intent in using this merely acquisition from another party.
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liability of the agency, which relates requested that we immediately adopt an extending credit to a thief who uses the primarily to the payment of default explicit, reliable process that provides stolen identity information, and to block claims. Although other kinds of claims sufficient protection to bona fide the reporting of any information on the may be paid on a loan, we do not victims of identity theft and that we also record that the individual identifies as believe that it would be appropriate to track cases of unresolved identity thefts resulting from that identity theft. 16 include these other claim types, none of within the Department. U.S.C. §§ 1681c–1, 1681c–2. There is which can be reasonably anticipated at Several commenters did not agree little, if any, substantive difference the time of guarantee, in with the requirement that a lender and between the FACT Act definition of § 682.401(b)(14). guarantor demand payment on a ‘‘identity theft’’ in 16 U.S.C. Changes: None. discharged loan from the perpetrator § 1681a(q)(3) and the descriptive Comments: Several commenters and pursue collection action if payment definition used in the interim final stated that the HERA revised section in full is not received. These regulations. Therefore, there is no 428(c)(2) of the HEA to require commenters urged the Department to reason to use the specific FACT Act guarantors to establish procedures to allow guarantors either to subrogate definition. ensure that Consolidation Loans are not loans discharged based on identity theft The commenters’ claim that the an excessive proportion of the guaranty to the Department or refer the loans to regulations are unduly restrictive is agency’s recoveries on defaulted loans, the appropriate enforcement agencies contrary to American common law. As but objected to the inclusion in for action. indicated in the preamble to the interim § 682.401(b)(29) of the requirement that Several commenters stated that the final regulations, under generally guarantors submit these procedures to provisions related to identity theft applicable laws, individuals who do not the Secretary for approval. would be better placed in a discrete apply for loans, execute promissory Discussion: We believe that if a section of the regulations. They believe notes for loans or knowingly accept the guarantor is required by law to establish this approach would facilitate benefits of loan disbursements are not procedures to ensure that Consolidation processing and reporting, and ensure liable to repay those loans, even if their Loans are not an excessive portion of that lenders, guarantors, and other names were forged on the loan the agency’s recoveries on defaulted program participants have access to instrument. An individual who claims loans, then the Secretary has a fiscal comprehensive regulations in a single, that his or her signature was forged is responsibility to review and approve identifiable section. not required to delay asserting that such procedures. The requirement to Several commenters noted claim until a criminal prosecution submit these procedures to the Secretary inconsistencies between the regulations occurs and nothing in the Department’s for approval is also authorized by and the preamble with respect to regulations require such a delay. An § 682.401(d)(2). identity theft. These commenters state individual who claims that his or her Changes: None. that the preamble erroneously suggested signature was forged can assert that that the new regulations provide for Identity Theft (§§ 682.402 and 685.215) claim to oppose liability on a loan and reimbursement to the loan holder only the holder of the loan must evaluate and Comments: Many commenters when perpetrator is affiliated with the accept or reject that claim whether or expressed concern regarding the school. The commenters requested that not a criminal prosecution occurs. provisions of the interim final preamble to the final regulations The regulations require the guaranty regulations that implement the HERA accurately describe the identity theft agency, not the lender, to demand provisions relating to the discharge of provisions in this regard. payment from the perpetrator of the an FFEL or Direct Loan that was falsely Discussion: The HERA amended the identity theft. Guaranty agencies must certified as the result of the crime of HEA to authorize a discharge of a FFEL ordinarily use due diligence to collect identity theft. Several commenters felt or Direct Loan Program loan if the FFEL Program loans and the perpetrator that a definition of identity theft based borrower’s eligibility was falsely is liable for such a debt. In some on the adjudication of a crime is too certified because the borrower was a instances, the Department may choose narrow and burdensome and that we victim of the ‘‘crime’’ of identity theft. to take assignment of the debt. However, should adopt the definition of identity The HERA specifically provides for a the regulations do not require a guaranty theft used in the Fair Credit Reporting loan discharge only when a ‘‘crime’’ of agency to take unusual or extraordinary Act (FCRA) and by the Federal Trade identity theft has occurred. For this steps to collect this debt. Commission (FTC). reason, the interim final regulations The comment that the regulations Many commenters felt that tying a provide relief only to the victim of a regarding identity theft discharge relief discharge of an FFEL or Direct Loan to proven crime of identity theft. should be placed in a separate section a determination by a Federal, State or The purpose of the Fair and Accurate does not explain why such treatment local court that the crime of identity Credit Transactions Act (FACT) (which would improve clarity of the procedure. theft had occurred, and requiring amended the FCRA) and similar The provisions added in the interim documentation of that fact, was unduly legislation and the FTC rules is to final regulations implement a specific restrictive. The commenters believed enable individuals who believe that discharge provision added by the HERA that requiring victims whose cases are their identifying information has been to the other discharge relief available actually prosecuted to await the misappropriated to alert parties who under section 437(c) of the HEA. The outcome of a judicial process for relief might extend credit to the thief based on regulations are not intended to provide fails to provide discharges and that stolen identity information. The general guidance on handling claims reimbursements in a timely fashion and purpose of the identity theft provision that loan applications or promissory fails to offer victims of identity theft in the HEA is different—to relieve notes have been forged where the claim proper relief. Several commenters asked borrowers and lenders from liability on does not rest on a proven crime. for clarification on how a loan would be loans that result from proven misuse of Because each provision for discharge discharged under the common law that information. Thus, the FACT Act relief under section 437(c) of the HEA defense of forgery if a law enforcement requires credit reporting agencies to offers relief to borrowers or purported agency does not pursue a perpetrator of post ‘‘fraud alerts’’ on an individual’s borrowers by payment to the holder of identity theft. Finally, the commenters credit record to deter lenders from the loan, it is logical to include
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procedures for handling claims under with the preamble discussion in the the HERA that reduced the insurance the new discharge provision among the interim final regulations. percentage paid to lenders and lender existing procedures for claims for other While we believe that the interim servicers that have been designated as kinds of discharge relief. final regulations are fully consistent ‘‘exceptional performers’’ not to apply The comment suggesting that the with the HEA and other laws, we are to loans for which the first disbursement Department adopt a process for tracking sympathetic to the concerns of the was made before October 1, 1993. These what it refers to as unresolved identity commenters. We intend to include this commenters noted that, prior to October thefts does not appear to be practicable issue on the agenda for a future 1, 1993, the HEA required guaranty at this time. To the extent that this negotiated rulemaking to possibly agencies to provide 100 percent proposal is meant to deter lenders from consider other approaches. insurance to lenders, but that rate was extending new credit based on new false Changes: Section 682.402(e)(1)(iii)(A) later reduced to 98 and 97 percent. Until applications using the same individual’s has been revised by adding the word enactment of the HERA, however, identity, the proposal duplicates the ‘‘not’’ before the words ‘‘pay lenders or lender servicers who were procedure already required under the reinsurance’’. designated as exceptional performers FACT Act. Lenders must obtain a credit received 100 percent insurance on all Rehabilitation of Defaulted Loans report in order to qualify an applicant claims. The HERA reduced the (§ 682.405(a)(2)(i)(B)) for a PLUS Loan, and therefore, the alert insurance for exceptional performers to option available under the FACT Act Comments: Several commenters 99 percent. The commenters argue that can be expected to provide effective stated that the regulations for the HERA should not be interpreted to prospective relief with respect to rehabilitation of a defaulted loan do not reduce the insurance on loans for which applications for PLUS Loans. account for borrowers who make only the first disbursement was made before Implementation of a system that sporadic payments before beginning the October 1, 1993 to 99 percent for would prospectively protect alleged required number of qualifying payments exceptional performers. The victims of identity theft from misuse to rehabilitate the loan. They also commenters also argue that to interpret under all the student loan programs claimed that the regulations did not the HERA to apply to loans for which requires participation and input from reflect the 20-day grace period for a the first disbursement was made before many participants in the loan programs. timely payment as provided in the October 1, 1993, would violate the Such a process may be both costly and statute. lenders’ contractual and Constitutional complicated. The Department is open to Discussion: We believe the regulations rights. considering practical proposals in the accurately reflect the HEA and Discussion: The Secretary does not future. Congressional intent. Borrowers must agree with the commenters. The HERA Finally, the commenter is correct that request, or in some fashion initiate, loan amended section 428I(b)(1) of the HEA there are inconsistencies between the rehabilitation so that the period during to provide that a lender or lender preamble to the interim final regulations which the 9 qualifying payments must servicer designated for exceptional and the interim final regulations, be made is clear for both the guaranty performance would receive 99 percent themselves, regarding reimbursement to agency and the borrower. insurance on ‘‘all loans for which claims the loan holder when the perpetrator of Additionally, a reasonable and are submitted for payment by that identity theft is affiliated with a school. affordable payment amount needs to be eligible lender or servicer for the one- As noted in the preamble to the interim established, and the consequences of year period’’ for which the lender or final regulations, § 682.402(e)(1)(i)(B) of loan rehabilitation, such as the addition lender servicer has been designated. In the false certification discharge of collection costs to the rehabilitated making this change, Congress provisions has, since 1994, made loan amount, the post-rehabilitation eliminated all references to 100 percent discharge relief, with the accompanying payment period and the likely increased insurance for exceptional performers. reimbursement to the lender, available payment amount, need to be explained Congress did not retain the 100 percent in instances in which an individual’s to the borrower. Although the borrower insurance for any group of loans. Thus, signature was forged on a promissory can now make 9 qualifying payments there is no statutory basis for the note or loan application by the school. over a 10 consecutive month period to Secretary to authorize 100 percent If the forgery is not committed by rehabilitate a defaulted loan, a borrower insurance on any claims submitted by someone affiliated with a school, the should not be encouraged to make late an exceptional performer after the purported borrower would not payments or to miss a monthly payment effective date of the HERA (July 1, ordinarily be legally liable for the loan. as part of a loan rehabilitation 2006). However because the loan is not legally agreement. The Secretary also does not agree that enforceable against the borrower, the Changes: None. this change violates any contractual or loan does not qualify for any FFEL Comments: One commenter noted constitutional rights of a lender. A payments from the Department. The that the original § 682.405(b)(1)(ii) lender chooses to apply for exceptional new identity theft provision in through (v) had been removed from the performer status because of the benefits § 682.402(e)(1)(i)(C) allows the lender to interim final regulations and asked if it provides to the lender. A lender is not be reimbursed when the loan was made this was intentional. required to apply for such status or to by reason of a crime of the theft of the Discussion: We thank the commenter retain such status after it has been identity of the purported borrower, for bringing this inadvertent drafting granted. Moreover, Congress can modify without regard to whether the thief was error to our attention. the terms of the exceptional performer affiliated with a school. The final Changes: We have reinserted these status or end it completely without any regulations bar payment to the lender if paragraphs and renumbered them violation of a lender’s rights. In the the theft was committed by the lender accordingly. HERA, Congress chose to reduce the or an agent of the lender. The preamble insurance coverage on loans held by to the interim final regulations Special Insurance and Reinsurance exceptional performers that were made accurately stated these elements of the Rules (§ 682.415) before October 1, 1993, apparently as a regulation. We will revise Comments: Some commenters asked way of offsetting the overall costs of § 682.402(e)(1)(iii)(A) to be consistent the Secretary to interpret the change in providing higher insurance coverage to
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exceptional performer lenders and can be characterized as programmatic governing FFEL school lenders do not lender servicers than to others. A lender expenses, but not as direct prohibit the school from making other or lender servicer that has been administrative expenses under the HEA. forms of student financial assistance designated as an exceptional performer As a result, § 682.601(b) specifies that available to its students. can still receive 100 percent insurance reasonable and direct administrative As provided in § 682.601(a)(7) and on loans disbursed prior to October 1, expenses do not include the costs discussed in the preamble of the interim 1993 by relinquishing its exceptional associated with securing financing, the final regulations, a FFEL school lender performer status. By relinquishing its cost of offering reduced origination fees must submit a compliance audit as a exceptional performer status, however, or reduced interest rates to borrowers, or lender in accordance with the it will be accepting a lower insurance the cost of offering reduced Federal requirements contained in rate on all other claims. default fees to borrowers. However, we § 682.305(c)(2) for any fiscal year in Changes: None. have decided to permit a school lender which the school engages in activities as an eligible lender, beginning with the School as FFEL Lender (§ 682.601(a) to exclude the costs of other statutorily first fiscal year beginning on or after and (b)) mandated or necessary programmatic expenses from the calculation of July 1, 2006. School lenders subject to Comments: Many commenters asked ‘‘proceeds from the sale or other the Single Audit Act, 31 U.S.C. 7502, that we clarify the regulations regarding disposition of loans’’ that must be used will be required under § 682.601(a)(7) to a school lender’s use of proceeds from for need-based grants. The parenthetical include its FFEL Program lending the sale or other disposition of loans for phrase in § 682.601(a)(8) addresses this activities in the annual audit and to need-based grants. These same exclusion. Certain optional costs, such include information on those activities commenters questioned the difference as reduced Federal default fees, are not in the audit report, whether or not the between the items identified in the covered by the exclusion from loan lending activities or the student parenthetical phrase in § 682.601(a)(8) proceeds or as a reasonable and direct financial aid programs are considered a and those identified as not considered administrative expense. ‘‘major program’’ under the Single Audit ‘‘reasonable and direct administrative A school that is also a FFEL Program Act. Other school lenders will have to expenses’’ in § 682.601(b) and asked lender should be able to demonstrate on arrange for a separate audit of their that these discrepancies be eliminated. an ongoing basis that there is no pattern lending activities using the Lender One commenter requested that we or practice of reducing institutional Audit Guide available through the identify the mandated costs of reduced funds available for use as non-Federal Department of Education’s Office of origination fees and reduced interest need-based grants or scholarships as a Inspector General. rates as allowable, reasonable and direct result of the availability of lender In making the changes to clarify the administrative expenses for school produced funds that must also be used audit requirements, we determined that lenders. A couple of commenters asked for need-based grants. § 682.305(c)(2)(v) and (vi) included for guidelines on how a school lender An institution’s continued outdated references to other should use loan proceeds for required commitment to use institutional as well Departmental regulations and audit need-based grants in a manner that as school lending-produced proceeds for requirements. We have corrected the would supplement, but not supplant this purpose will demonstrate that the citations to the audit requirements for non-Federal funds that would otherwise school is supplementing, not governmental entities in be used for need-based student grant supplanting, institutional funds § 682.305(c)(2)(v). We have also added programs. The commenters also noted committed to need-based grants and nonprofit organizations to that no definition of need-based grant scholarships. § 682.305(c)(2)(v), because amendments was provided in the regulations. One of We will not dictate a specific to the Single Audit Act apply the same those same commenters also asked us to approach a school lender must use to requirements to governmental entities clarify that a school operating as a FFEL determine its budget for need-based and nonprofit organizations. We have school lender would not be prohibited grants from lending-produced proceeds. removed the separate discussion of from providing assistance to its The lender must be able to show clearly audit requirements for nonprofit students, other than Stafford Loans, that all proceeds from the sources listed organizations in § 682.305(c)(2)(vi) and from institutional sources. Another in § 682.601(a)(8), except for those replaced it with a cross-reference to the commenter stated that required need- authorized to be used for reasonable and school lender audit requirements. based grants from loan proceeds should direct administrative expenses and Changes: The requirement that school be based on the school lender’s actual other required programmatic costs that lenders have an annual audit in net loan proceeds from the prior year. can be netted from proceeds, are used § 682.601(a)(7) has been amended to One commenter suggested that for need-based grants. We understand clarify that, in addition, a school lender § 682.601(a)(9) be revised to clarify that that award commitments are made in subject to the Single Audit Act must in the loans a school lender must make advance of the start of the school’s addition during years when the student prior to April 1, 2006 be FFEL program academic year and that this period does financial aid cluster, as defined in OMB loans. Another commenter asked us to not generally correspond with the Circular A–133 Compliance clarify whether a FFEL school lender school lender’s fiscal year. Determining Supplement, is not audited as a major was required to conduct a separate the pool of funds available for need- program, also audit the school’s lending independent audit of its lender based grants based on the school activities as a major program under the operation. lender’s immediately preceding fiscal Single Audit Act. This additional Discussion: In reviewing the year’s lending performance, with an requirement is without regard to the regulatory provisions that address the additional factor for increased proceeds amount of loans made. We have also use of loan proceeds for need-based based on increased loan volume, if made technical corrections to grants and allowable, reasonable and applicable, would appear to be a § 682.305(c)(2) as discussed above. direct administrative expenses, we agree reasonable approach. ‘‘Need,’’ for Section 682.601(a)(8) has been revised that further clarification is appropriate. purposes of need-based grants, is to remove the words ‘‘which does not We believe that certain FFEL school documented need for Title IV, HEA include providing origination fees or lender’s mandated or required expenses program purposes. The provisions interest rates at less than the fee or rate
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authorized under the provisions of the Comments: One commenter requested Consolidation Loans in section Act’’ following the words ‘‘need-based that PLUS Loans be covered in the 455(b)(7)(C) of the HEA, and that grants’’ and before ‘‘; and’’. A technical overaward language in § 682.604(h) provision does not specify a different change has also been made to because graduate and professional interest rate for the portion of a Direct § 682.601(a)(9) to reflect the requirement students are now eligible PLUS Loan Consolidation Loan that is attributable that an eligible school lender must have borrowers. to HEAL Loans. Therefore, Direct made one or more FFEL program loans Discussion: We agree with the Consolidation Loans are not subject to on or before April 1, 2006. commenter that the overaward language the provision that applies to Federal should be amended to include student Processing Loan Proceeds (§§ 682.604 Consolidation Loans under section PLUS Loans. and 685.304) 428C(d)(2) of the HEA. Changes: Section 682.604(h) has been Changes: None. Comments: Several commenters amended to reflect this change. We have recommended requiring entrance and also made the same change in Repayment Plans (§ 685.208) exit counseling for graduate or § 685.303(e) of the Direct Loan Program Comments: Several commenters professional students who borrow PLUS regulations. suggested that the HERA requires that Loans. The commenters noted that a Borrower Eligibility (§ 685.200) the graduated and extended repayment graduate or professional student PLUS plans do not require a borrower to repay borrower who has not also borrowed a Comments: Several commenters the minimum amount allowed under Stafford Loan would never have had the recommended that we revise statute. In addition, these commenters benefit of Stafford Loan entrance or exit § 685.200(b)(1)(iv) to allow a student suggested that a borrower’s monthly counseling. In addition, these Direct PLUS Loan applicant who is payments under these repayment plans commenters recommended that the exit determined to have an adverse credit must be at least the amount of interest counseling clarify the different history to receive a Direct PLUS Loan if and that we add a provision that would repayment rules for PLUS loans and the student obtains an endorser who disallow single graduated payments that Stafford Loans. Two commenters does not have an adverse credit history. exceed three times any other graduated suggested that graduate or professional The commenters noted that the endorser installment payment. students with both Stafford Loans and option is available to student PLUS Discussion: We agree that the PLUS Loans could be exempted from applicants in the FFEL Program. minimum annual repayment rules the entrance counseling requirement for Discussion: We did not intend to deny should not apply to a graduated their PLUS Loans, because these student applicants for Direct PLUS repayment plan. The HEA exempts borrowers would have already received Loans the option of obtaining an graduated and income sensitive entrance and exit counseling on their endorser. Stafford Loans. Changes: We have revised repayment plans from the minimum Discussion: The HEA exempts PLUS § 685.200(b)(5) of the regulations to annual repayment provisions. The HEA Loan borrowers from exit counseling more clearly reflect that a student Direct does not exempt extended repayment requirements. Although the Secretary PLUS Loan applicant who is determined plans from the minimum annual encourages institutions to provide exit to have an adverse credit history may payment requirement. In addition, the counseling to graduate and professional receive a Direct PLUS Loan if he or she FFEL Program regulations state that student PLUS Loan borrowers, the obtains an endorser who does not have graduated and income sensitive Secretary does not have the authority to an adverse credit history, or documents repayment plans may have installments require such counseling by regulation. to the satisfaction of the Secretary that less than the minimum. However, the With regard to entrance counseling, there are extenuating circumstances. FFEL Program regulations do not FFEL lenders are already required, provide for extended repayment plans under § 682.205, to provide extensive Charges for Which Direct Loan to have installments less than the disclosure information to borrowers Borrowers Are Responsible (§ 685.202) minimum annual payment amount. The before disbursing a loan. This disclosure Comments: Several commenters final regulations provide that the 10- information, which can be provided suggested that we revise § 685.202(a)(3) year graduated repayment plan and the through either the rights and to provide that the portion of a Direct extended repayment plan can have responsibilities statement or a plain Consolidation Loan that is attributable graduated payments. language disclosure sent to the to Health Education Assistance Loan We do need to add to the regulations borrower, includes an explanation of Program (HEAL) loans is subject to the for the graduated repayment plan, for when repayment of the loan is required. same interest rate provision that applies borrowers entering repayment on or Lenders are also required to provide a to Federal Consolidation Loans under after July 1, 2006, a provision that does disclosure to borrowers prior to the loan § 682.202(a)(4)(v). The commenters not allow any single installment going into repayment. This disclosure noted that section 455(a)(1) of the HEA, payment to be more than three times the must include the borrower’s repayment as amended by the HERA, requires amount of any other payment. schedule, the due date of the first Direct Consolidation Loans and Federal Although the HEA does not installment payment, and the number, Consolidation Loans to have the same specifically require that the payments amount, and frequency of payments. For terms, conditions, and benefits, unless must be at least the amount of interest, Direct Loans, the Department provides otherwise specified in Part D of the we agree that the regulations would be essentially the same information to HEA. clearer by including a provision that borrowers that FFEL lenders provide Discussion: The HERA amended the monthly payments on all Direct Loan under § 682.205. We believe that these HEA to require that Direct Program repayment plans must be at disclosures are sufficient for the limited Consolidation Loans have the same least the amount of the monthly accrued number of graduate or professional terms, conditions, and benefits as interest, except that the monthly student PLUS borrowers who have not Federal Consolidation Loans, unless payment amount under the Income received Stafford Loan entrance otherwise specified in the law. Contingent and Alternative repayment counseling. However, in this case, there is a specific plans may be less than the monthly Changes: None. interest rate provision for Direct accrued interest.
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Changes: We have revised Consolidation Loan is made rather than Agreements Between an Eligible School § 685.208(g)(3) and 685.208(h)(2) to at the time of the borrower’s application and the Secretary for Participation in provide that, under a graduated for the loan. the Direct Loan Program (§ 685.300) repayment schedule, a borrower’s Changes: We have revised Comments: Several commenters payments may be less than $50 a month § 685.220(d) to clarify that the eligibility recommended that we amend the and any single installment payment may requirements for consolidating a loan regulations to reflect the Department’s not be more than three times the amount subject to a judgment or wage previous guidance that a school that of any other installment payment. awards Direct Subsidized Loans and We have added a new paragraph garnishment must be met at the time a Direct Consolidation Loan is made. Direct Unsubsidized Loans to its (a)(2)(iv) in § 685.220 of the Direct Loan graduate or professional students repayment regulations to provide that Comments: To ensure that Direct Loan through the Direct Loan Program may monthly repayment plans, except Program borrowers have the same award PLUS Loans to its graduate or Income Contingent and Alternative options for resolving a default as FFEL professional students through the FFEL repayment plans, must be at least the Program borrowers, some commenters Program, and that a school may also amount of the monthly accrued interest. recommended that the Secretary clarify award Direct PLUS Loans to its graduate Consolidation (§ 685.220) in the regulations that a borrower with and professional students through the Comments: Several commenters a defaulted Direct Consolidation Loan Direct Loan Program and Subsidized recommended that we revise remains eligible for loan rehabilitation and Unsubsidized Federal Stafford § 685.220(c)(1) to clarify that, if a with a repayment plan that provides for Loans through the FFEL Program. Discussion: We agree that the Federal Consolidation Loan is reasonable and affordable payments Department’s prior guidance should be consolidated into a Direct Consolidation such as those available under an income incorporated in the regulations. Loan, only the portion of the Federal contingent repayment plan. Other commenters recommended that the Changes: We have revised Consolidation Loan that qualified for an § 685.300(b)(8) to clarify that a school Secretary amend the Direct Loan interest subsidy will be included in the may award a PLUS Loan to a parent or Program regulations to allow a borrower subsidized portion of the new Direct to a graduate or professional student Consolidation Loan. The commenters to consolidate a defaulted Direct through either the Direct Loan Program noted that in many cases, only a portion Consolidation Loan if the borrower first or the FFEL Program, and a Stafford of a Federal Consolidation Loan makes satisfactory repayment Loan through the other loan program to qualifies for an interest subsidy. arrangements on the defaulted loan and a dependent undergraduate or graduate Discussion: We agree that the current includes at least one additional eligible or professional student borrower for the regulatory language is unclear with loan in the consolidation. same period of enrollment. However, a respect to the treatment of Federal school may not award the same type of Consolidation Loans that are included Discussion: There is nothing in the loan (i.e., Stafford or PLUS) from in the subsidized portion of Direct regulations that prohibits a borrower different loan programs to the same Consolidation Loans. with a defaulted Direct Consolidation Changes: We have revised Loan from entering into an agreement to student or parent borrower for the same § 685.220(c)(1) to clarify that only the rehabilitate that loan under a repayment period of enrollment. portion of a Federal Consolidation Loan plan that provides for reasonable and Executive Order 12866 that qualified for an interest subsidy affordable payments. Regulatory Impact Analysis will be included in the subsidized We agree that the Direct Loan Program portion of a Direct Consolidation Loan. regulations, as currently written, might Under Executive Order 12866, the Secretary must determine whether this Comments: Several commenters suggest that a borrower with a defaulted regulatory action is ‘‘significant’’ and pointed out that § 685.220(d)(1)(ii)(E) Direct Consolidation Loan is ineligible and (F) prohibit a borrower from therefore subject to the requirements of to consolidate that loan into a new consolidating a loan that is subject to a the Executive order and subject to Direct Consolidation Loan under any judgment or an order for wage review by the OMB. Section 3(f) of garnishment unless the judgment has conditions. However, this was not our Executive Order 12866 defines a been vacated or the wage garnishment intent. A borrower with a defaulted ‘‘significant regulatory action’’ as an order has been lifted at the time the Direct Consolidation Loan may action likely to result in a rule that may borrower applies for a Direct consolidate that loan into a new Direct (1) have an annual effect on the Consolidation Loan. In contrast, the Consolidation Loan if the borrower economy of $100 million or more, or corresponding FFEL Program includes at least one additional eligible adversely affect a sector of the economy, regulations in § 682.201(c) provide that loan in the consolidation, and meets the productivity, competition, jobs, the a judgment or wage garnishment order other eligibility requirements that apply environment, public health or safety, or must have been vacated or lifted at the to borrowers who wish to consolidate a State, local or tribal governments or time a Federal Consolidation Loan is defaulted loan. communities in a material way (also made. The commenters recommended Changes: We have revised the referred to as an ‘‘economically that we revise § 685.220 to be consistent regulations in § 685.220(d)(1)(ii) to significant’’ rule); (2) create serious with the FFEL Program requirements clarify that a borrower may consolidate inconsistency or otherwise interfere related to the consolidation of loans a defaulted Direct Consolidation Loan if with an action taken or planned by another agency; (3) materially alter the subject to a judgment or wage the borrower: (1) makes satisfactory budgetary impacts of entitlement grants, garnishment. repayment arrangements on the Discussion: We agree with the user fees, or loan programs or the rights commenters that the Direct Loan defaulted loan or agrees to repay the and obligations of recipients thereof; or Program regulations should make it new Direct Consolidation Loan under (4) raise novel legal or policy issues clear that the judgment and wage the income contingent repayment plan; arising out of legal mandates, the garnishment eligibility requirements and (2) includes at least one additional President’s priorities, or the principles must be met at the time the Direct eligible loan in the consolidation. set forth in the Executive order.
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Pursuant to the terms of the Executive became an eligible institution by Identity Theft Alternatives: Section order, it has been determined this participating in the Distance Education 8012 of the HERA authorizes a regulatory action will have an annual Demonstration Program. discharge of a FFEL or Direct Loan effect on the economy of more than The Secretary looked at how the Title Program loan under section 437(c) of the $100 million. Therefore, this action is IV student financial aid rules had been HEA if the eligibility of the borrower ‘‘economically significant’’ and subject applied in both the nonterm and non- was falsely certified as a result of the to OMB review under section 3(f)(1) of standard term models employed by crime of identity theft. In developing Executive Order 12866. The Secretary WGU and identified basic principles on regulations to implement section 8012, accordingly has assessed the potential which to base the regulations. One we sought to reflect the statutory costs and benefits of this regulatory principle is that institutions that use language that requires the Department to action and has determined the benefits direct assessment would need to discharge the borrower’s responsibility justify the costs. develop equivalencies in credit or clock to repay the loan when a ‘‘crime of hours in terms of instructional time for identity theft’’ has occurred. The final Need for Federal Regulatory Action the amount of student learning being regulations require that to receive a These final regulations are needed to assessed. This was necessary because discharge on a loan, an individual must implement recent amendments to the many applicable Title IV, HEA program provide the holder of the loan, a copy HEA that affect students, borrowers and requirements use time and/or credit or of a local, State, or Federal court verdict program participants in the Federal clock hours to measure things other or judgment that conclusively student aid programs authorized under than student learning. In addition, determines that the individual who is Title IV of the HEA. institutions would have to define the named borrower of the loan was the The Secretary has limited discretion enrollment status, payment periods, and victim of the crime of identity theft. We in implementing most of these satisfactory academic progress. adopted this standard as an inexpensive provisions. The majority of the changes A second principle is tied to the and reliable way to implement the new included in these final regulations statutory language that characterizes discharge provision. If the perpetrator of simply modify the Department’s direct assessment programs as an identity theft is never prosecuted, regulations to reflect statutory changes instructional programs. The Secretary and no judicial determination that a made by the HERA and the other laws determined that institutions must crime occurred is rendered, a borrower mentioned earlier. These statutory provide a means for students to fill in can still be relieved of any provisions are either already effective or the gaps in their knowledge and that responsibility to repay the loan under will be effective shortly. Title IV, HEA program funds should the common law (and in many The Secretary has exercised limited only be used to pay for learning that instances, State law) defense of forgery. discretion in implementing the HERA occurs while the student is enrolled in We stressed this consideration in the provisions in the following areas: • the program. preamble to the interim final Direct Assessment: The HERA regulations. extends eligibility for Title IV, HEA The Secretary considered what should programs to instructional programs constitute ‘‘instruction’’ in a direct One alternative we considered was to using or recognizing the use by others assessment program. The word authorize a discharge for ‘‘identity of direct assessment of student learning; ‘‘instruction’’ is not specifically defined theft’’ based on representations from the • Identity Theft: The HERA in the Department’s regulations and, in individual, much as is now done for authorizes a discharge of a FFEL or its ordinary meaning the word connotes closed school discharge relief, that the Direct Loan Program loan if the teaching. There are several other ways, crime of identity theft had been borrower’s eligibility to borrow was however, in which an institution might committed, and that the claimant was falsely certified because the borrower assist students to prepare for the victim of that criminal act. We was a victim of the crime of identity assessments. The Secretary considered rejected this alternative as costly, theft; and whether the definition of instructional unworkable, and unnecessary to provide • Special Allowance Payments: The time in § 668.8(b)(3), which is used for relief to the individuals who may be HERA modifies the conditions under other types of programs, could be used victims of this crime. Under this which a loan holder qualifies for special for direct assessment programs and alternative, the claimant and/or the allowance interest benefits related to determined that the definition was not lender would be required to submit PLUS loans the first disbursement of sufficiently broad to be used in this evidence needed to establish whether which was made on or after January 1, context. conduct has occurred that would 2000. The Secretary recognized that constitute the crime of identity theft. The following section addresses the institutions offering direct assessment That evidence may be voluminous, alternatives that the Secretary programs might use courses or learning difficult to obtain, and would likely considered in implementing these materials developed by other entities, include witness testimony. Amassing discretionary portions of the HERA such as training and professional and transmitting that evidence would be provisions. development organizations and other difficult and costly for lenders and educational institutions, to assist claimants. Furthermore, determining Regulatory Alternatives Considered students in preparing for the whether a crime has been committed Direct Assessment Alternatives: In assessments. The Secretary considered requires discerning the identity of the developing the direct assessment whether the use of outside resources perpetrator and determining the state of regulations, the Secretary drew upon the could be considered contracting out a mind of that person. Neither the Department’s experience with Western portion of an educational program and Department nor the guaranty agency is Governors University (WGU), the only determined that it could be. Therefore, authorized to determine whether that institution currently participating in the the Secretary included in the direct evidence shows that a crime has been Title IV student financial assistance assessment regulations a provision that committed. That determination is programs that uses direct assessment, in exempts direct assessment programs routinely and reliably made through the lieu of credit or clock hours, as a from the limitations on contracting for judicial process, which is designed to measure of student learning. WGU part of an educational program. perform this function. Moreover, there
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is no need to ignore the judicial process review of the statutory language, the volume and borrower data are based on in order to give relief to those Department determined that the trend analyses of actual program individuals who did not in fact take out statute’s likely intent was to remove the activity, primarily drawn from the the loans for which they are listed as limitation for the January–March 2006 National Student Loan Data System borrowers. Under State statutes and quarter, since this was the first quarter (NSLDS) and other Department systems. common law, individuals whose for which payments would be made These estimates were derived from signatures have been forged on loan after April 1, 2006. The final regulations the Department’s projections that show documents are not liable for those debts. reflect this determination. that loan volume will increase an Individuals who show that their estimated $3.2 billion in award year Benefits signatures have been forged on loan 2007–2008 and $11.6 billion from fiscal documents, and that they neither Given the breadth of these year 2006–2010 as a result of higher authorized nor received a loan made in regulations, the discussion of benefits loan limits. Over the latter period, their name, are not held liable by the and costs will be limited in most cases average loan amounts are estimated to Department. For these reasons, we to provisions with an economic impact increase by $184 for Stafford Loans and rejected the alternative that would entail of $100 million or more in any one year. $156 for Unsubsidized Stafford Loans. an extra-judicial proof of a crime. By facilitating the implementation of The phased reduction of loan Instead, we simply require the claimant changes made in the HERA and other origination fees is estimated to reduce to submit a copy of a judicial verdict recent student aid-related statutes, these fees by $5.6 billion on 70,000 loans over that identity theft was committed. final regulations will support the award years 2006–2010. Special Allowance Payment provision of a broad range of student The expansion of distance education Alternatives: The Department benefits. In general, these benefits made possible by the changes to the ‘‘50 considered a number of alternatives reduce the costs of higher education to percent rule’’ and the definition of related to the effective date for students, increase the amount of Federal correspondence courses will allow implementation of section 8006 of the student aid or increase the number of institutions to more aggressively pursue HERA, which eliminates the limitation students eligible for Federal student aid. new communication technologies to that special allowance payments on The economic benefits of any specific provide students significantly greater PLUS Loans for which the first change are difficult to discern, as they flexibility in the scheduling and disbursement was made on or after have direct benefit to the individual aid location of academic programs. The January 1, 2000, only be paid if the recipient and broader societal benefits Department estimates this expanded formula for determining the borrower resulting from the economic impact and flexibility will increase the pool of interest rate produces a rate that exceeds tax-paying potential of a well-educated students eligible for Federal student aid the statutory maximum borrower rate of population. Research indicates that by 30,000 students a year in 2006 and 9 percent. reductions in the cost of higher 2007, of whom 17,000 per year will be The first alternative was to make this education are correlated to increased eligible to receive a Pell Grant. With an provision retroactive to January 1, 2000, student enrollment, retention, and average grant of $2,306, these additional an approach that would result in completion. The U.S. Census Bureau Pell Grant recipients will receive an substantial additional special allowance has found people with a bachelor’s estimated $196 million in Pell Grant aid payments to many PLUS Loan holders. degree realize as much as 75 percent over 2006–2010. This estimate is based Although this option was suggested by higher lifetime earnings than those on a trend analysis of Pell Grant some members of the student loan whose education is limited to a high program data and projections of industry, the Department determined school degree. (‘‘The Big Payoff: institutional and program eligibility for that this approach was inconsistent with Educational Attainment and Synthetic Federal student aid derived through the the statute. Estimates of Work-Life Earnings,’’ July use of accreditation data. The Other alternatives considered 2002.) Department included in these estimates reflected differing interpretations of the Specific benefits provided to student that additional students made eligible provision’s effective date. Section 8006 borrowers in these final regulations for student aid would borrow $441 states that ‘‘amendments made by this include increases in certain FFEL and million in student loans over 2006– subsection shall not apply with respect Direct Loan Program loan limits; 2010. to any special allowance payment made reduced origination fees in the FFEL The regulation’s teacher loan under section 438 of the Higher and Direct Loan Programs; broadened forgiveness provisions offer incentives Education Act of 1965 (20 U.S.C. 1087– eligibility for PLUS Loans to include to help address longstanding national 1) before April 1, 2006.’’ Since special graduate and professional students; and regional elementary and secondary allowance payments are made on a expanded access to distance education school staffing problems. Many studies quarterly basis, the Department had to programs; permanently expanded loan (Boe, Bobbitt, & Cook, 1997; Grissmer & determine whether the statute’s intent forgiveness for highly qualified math, Kirby, 1992; Murnane et al. , 1991; was to remove the limitation on PLUS science, and special education teachers Rumberger, 1987) and extensive special allowance payments for the at low-income schools; and a new research prepared for the National quarter of January–March 2006—the deferment for FFEL, Direct Loan and Commission on Mathematics and first quarter for which bills would be Perkins Loan Program borrowers who Science Teaching) have found math, submitted, verified, and paid after April serve on active duty military service science, and special education to be 1, 2006 or for the quarter of April–June during times of war or national fields with especially high turnover and 2006, the first full quarter after the emergency. These benefits are projected those predicted most likely to suffer HERA’s enactment. The Department to increase Federal outlays by $5.2 shortages. More than tripling the teacher estimated Federal costs would increase billion for loans originated in FY 2006– loan forgiveness amount—from $5,000 by $53 million if the limitation was 2010. This estimate was developed to $17,500—for qualifying teachers in removed for the January–March quarter. using projected interest rate, loan these fields should offer a powerful This estimate was based on data on volume, and borrower demographic data incentive for recruitment and retention, special allowance rates and balances for used in preparing the FY 2007 especially given the additional the affected quarter. After a careful President’s Budget. Projected loan eligibility requirement that recipients
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teach for five consecutive years before the statute; and a reduction in loan include the repeal of the single holder receiving the benefit. The Department holder’s insurance against default from rule, which limits the ability of FFEL estimates this expanded benefit will 98 percent to 97 percent of a loan’s borrowers whose loans are held by a increase Federal loan subsidy costs in principle and accrued interest. Given single holder to consolidate with other the FFEL and Direct Loan programs by the broad availability of FFEL program lenders, and the standardization of $825 million for loans originated in loans—over 4,000 lenders provided graduated and extended repayment 2007–2010. These estimates assume more than $43 billion in new loans and plans—previously different for Direct over 32,000 teachers will be eligible for an additional $53 billion in Loans and FFEL—on the FFEL model. additional forgiveness amounts, consolidation loans in FY 2005—these The repeal of the single holder rule increasing the average amount forgiven changes are not expected to reduce should give all borrowers access to for those borrowers by approximately student and parent access to loan interest rate discounts and other $8,500, from $4,700 to $13,300. (The capital. benefits available through the highly additional benefits were available for The student loan industry features competitive consolidation loan market. loans made in 2006 as a result of the high competition among loan providers, The standardization of repayment plan Taxpayer-Teacher Protection Act of using an array of interest rate discounts terms will eliminate a possible source of 2004, so for the purposes of this analysis and other borrower benefits to attract confusion for borrowers and promote additional benefits have only been volume. The overwhelming majority of equity across the two loan programs. considered for 2007 and beyond.) This student loans are sold by the originating Under this provision, the Department estimate was developed using projected lender in the secondary market. The estimates more Direct Loan borrowers interest rate, loan volume, and borrower impact on individual lenders of HERA who wish to obtain longer-than standard demographic data used in preparing the provisions reducing Federal subsidies repayment plans will consolidate their FY 2007 President’s Budget. Estimates are inestimable; a substitution of loans. As a result, the estimated of borrower eligibility were based on subsidies for student interest rate cuts percentage of Stafford Loan borrowers program data—primarily from NSLDS— may occur or the secondary market in standard repayment will increase demographic information from the price of securitized loans may be from 76 percent to 87 percent, while the National Center for Education Statistics’ revalued. Given the high level of percentage in graduated and extended Schools and Staffing Survey. government guaranty on these loans, as repayment will decrease from 23 Lastly, the Department’s estimates well as the guaranteed rate of return, percent to 11 percent. took into account the creation of a new continued access to loan capital for all These provisions also are expected to deferment related to active-duty military borrowers should be assured. The improve market transparency and service during a war or national impact on individual loan holders may remove transaction barriers for loan emergency is estimated to reduce be mitigated by investment and tax borrowers, improving market openness interest payments by an average of considerations from their investment and efficiency for both borrowers and $1,500 for 21,000 borrowers. portfolios as a whole. Higher borrower loan providers. In addition to implementing loan limits and standardized repayment Costs expanded borrower benefits, these final terms may increase long-term interest regulations also implement a number of income to some loan holders under These final regulations include a provisions intended to improve the cost- these regulations. number of provisions that will impose effectiveness and efficiency of the FFEL The estimates were derived from increased costs on some borrowers, such and Direct Loan programs, streamline changes to limit the payment of higher- as an increase in the loan interest rate program operations for participating than-standard special allowance on for FFEL PLUS borrowers, the institutions, and standardize loan terms loans funded through tax-exempt elimination of in-school and joint and conditions across the two programs. securities, balances eligible to receive consolidation loans, and the mandatory These changes are estimated to reduce the higher special allowance payments imposition of the previously optional 1 Federal outlays by $7.0 billion for loans are estimated to decrease from $15.5 percent guaranty agency default made in FY 2006–2010, freeing up billion in FY 2006 to $8.3 billion in FY insurance premium. (At the same time, resources for other urgent requirements. 2010. While the recovery of excess these provisions will reduce the Federal This estimate was also developed using interest subsidies produced no costs of these programs and, in the case projected interest rate, loan volume, and estimated savings under interest rate of the guaranty fee, improve the borrower demographic data used in projections used for the FY 2007 financial stability of guaranty agencies. preparing the FY 2007 President’s President’s Budget, this policy does save Only 14 of 35 agencies collected this fee Budget. Projected loan volume, guaranty significant amounts under the in FY 2005; the mandatory imposition agency and lender information, and probabilistic interest rate forecasting of the fee is estimated to add $1.5 borrower data are based on trend methodology used by the Congressional billion to the balance of agency Federal analyses of actual program activity, Budget Office and adopted by the Funds over 2006–2010.) Prior to the primarily drawn from NSLDS and other Administration for the FY 2007 Mid- HERA, these provisions allowed loan Department systems. Session Review. These savings are not providers or guaranty agencies to Provisions intended to enhance loan included in the estimate of total savings discriminate among borrowers through program efficiency include a number of discussed above, as this was developed the unequal distribution of borrower changes intended to promote risk- prior to the Mid-Session Review. costs. While some borrowers may lose sharing by FFEL participants through Reducing lender insurance against unearned benefits through these reduced program subsidies, including: default from 98 percent to 97 percent is statutory and regulatory changes, market restrictions on higher-than-standard estimated to decrease Federal payments equitability and transparency are special allowance payments for loans by $37.5 million over FYs 2006–2010. improved. funded through tax-exempt securities; Lastly, the final regulations include a These final regulations also authorize provisions under which the Department number of provisions intended to the Secretary to waive a student’s Title will recover excess interest paid to loan standardize terms and conditions and IV grant repayment if the student holders when student interest payments broaden borrower choices, particularly withdrew from an institution of higher exceed the special allowance level set in for consolidation loans. These changes education because of a major disaster as
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declared by the President in accordance Accounting Statement burden associated with the elimination with the Robert T. Stafford Disaster As required by OMB Circular A–4 of the exemption of single disbursement Relief and Emergency Assistance Act. (available at http:// of FFEL Loans to students attending The Secretary will exercise this waiver www.Whitehouse.gov/omb/Circulars/ foreign institutions. While there is authority on a case-by-case basis after a004/a-4.pdf), in Table 2 below, we additional burden associated with determining that a major disaster has have prepared an accounting statement making two disbursements of a FFEL Loan for a student attending a foreign significantly affected recipients of Title showing the classification of the institution, the burden is primarily at IV grant aid. expenditures associated with the the institution in the processing of an Because entities affected by these provisions of these final regulations. additional disbursement. Since the regulations already participate in the This table provides our best estimate of normal business process for a lender or Title IV, HEA programs, these lenders, the changes in Federal student aid guaranty agency includes making guaranty agencies, and schools must payments as a result of these final multiple disbursements of FFEL Loans, have already established systems and regulations. Expenditures are classified there is no significant additional burden procedures in place to meet program as transfers to postsecondary students; to the lender or guaranty agency. These eligibility requirements. These savings are classified as transfers from additional activities will increase regulations generally involve discrete program participants (lenders, guaranty burden hours by 20,000. A Paperwork changes in specific parameters agencies). associated with existing guidance—such Reduction Act submission for OMB Control Number 1845–0020, which as changes in origination fees, loan TABLE 2.—ACCOUNTING STATEMENT: covers the burden in § 682.604, has been limits, or reinsurance percentages— CLASSIFICATION OF ESTIMATED EX- rather than wholly new requirements. submitted to OMB for approval. PENDITURES Accordingly, institutions wishing to As noted in the interim final rules, the continue to participate in the student [In millions] Department has been working with its aid programs have already absorbed major stakeholders to develop the forms most of the administrative costs related Category Transfers and applications necessary to to implementing these final regulations. implement many of the provisions of Annualized Monetized $976. this rulemaking activity. The Marginal costs over this baseline are Transfers. primarily related to one-time system From Whom To Federal Government Department plans to separately publish changes that, while possibly significant Whom? to Postsecondary the required Federal Register notices for in some cases, are an unavoidable cost Students; the collections of information associated of continued program participation. The Student Aid Program with the following sections: active duty Department is particularly interested in Participants to Fed- military (§§ 674.34, 682.210, and comments on possible administrative eral Government. 685.204), obtaining and repaying a loan burdens related to these system or (§ 682.102), identity theft (§ 682.402), process changes. Paperwork Reduction Act of 1995 and consolidation (§ 685.220). We received one comment on the OMB has already approved the Assumptions, Limitations, and Data increased burden for the information Sources Paperwork Reduction Act portion of the interim final regulations. The collection requirements associated with Because these final regulations largely commenter disagreed with the the teacher loan forgiveness provisions restate statutory requirements that Paperwork Reduction Act information (§§ 682.215 and 685.217) under OMB would be self-implementing in the collection burden analysis for the Control Number 1845–0059. absence of regulatory action, cost changes we made to § 682.604. These Assessment of Education Impact estimates provided above reflect a pre- changes implemented section 8010 of Based on our own review, we have statutory baseline in which the HERA the HERA to end the exemption from determined that these final regulations and other statutory changes multiple disbursement requirements for do not require transmission of implemented in these regulations do not eligible foreign institutions. Our information that any other agency or exist. Costs have been quantified for five analysis stated that, in the vast majority authority of the United States gathers or years, as over time this has been a of cases, the lender or guaranty agency makes available. typical period between reauthorizations is already required to disburse a FFEL of the HEA. Program Loan in two installments as a Electronic Access to This Document In developing these estimates, a wide regular business practice and that this You may view this document, as well range of data sources were used, change would produce no additional as all other Department of Education including the NSLDS, operational and burden for foreign schools. documents published in the Federal financial data from Department of The commenter stated that, while the Register, in text or Adobe Portable Education systems, and data from a requirement to disburse a loan in two Document Format (PDF) on the Internet range of surveys conducted by the installments is a regular business at the following site: http://www.ed.gov/ National Center for Education Statistics practice at U.S. institutions, prior to news/Fedregister. such as the 2004 National publication of the interim final To use PDF you must have Adobe Postsecondary Student Aid Survey, the regulations, it had not been true for Acrobat Reader, which is available free 1994 National Education Longitudinal foreign schools. The commenter stated at this site. If you have questions about Study, and the 1996 Beginning that disbursing a loan in two using PDF, call the U.S. Government Postsecondary Student Survey. installments is a new burden for foreign Printing Office (GPO), toll free, at 1– Elsewhere in this SUPPLEMENTARY schools and for lenders and guaranty 888–293–6498; or in the Washington, INFORMATION section we identify and agencies that provide loans to their DC, area at (202) 512–1530. explain burdens specifically associated American students enrolled in foreign Note: The official version of this document with information collection schools. is the document published in the Federal requirements. See the heading As a result of public comment, we Register. Free Internet access to the official Paperwork Reduction Act of 1995. have reconsidered and recognized the edition of the Federal Register and the Code
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of Federal Regulations is available on GPO credit or clock hours as a measure of PART 673—GENERAL PROVISIONS Access at: http://www.gpoaccess.gov/nara/ student learning, an institution must FOR THE FEDERAL PERKINS LOAN index.html. establish a methodology to reasonably PROGRAM, FEDERAL WORK-STUDY equate the direct assessment program PROGRAM, AND FEDERAL List of Subjects (or the direct assessment portion of any SUPPLEMENTAL EDUCATIONAL 34 CFR Part 668 program, as applicable) to credit or OPPORTUNITY GRANT PROGRAM clock hours for the purpose of Administrative practice and complying with applicable regulatory I 8. The authority citation for part 673 procedure, Colleges and universities, requirements. The institution must continues to read as follows: Consumer protection, Education, Grant provide a factual basis satisfactory to the programs—education, Loan programs— Authority: 20 U.S.C. 421–429, 1070b– Secretary for its claim that the program 1070b–3, and 1087aa–1087ii; 42 U.S.C. 2751– education, Reporting and recordkeeping or portion of the program is equivalent 2756b, unless otherwise noted. requirements, Student aid, Vocational to a specific number of credit or clock education. § 673.5 [Amended] hours. I 34 CFR Part 673 9. Section 673.5 is amended in * * * * * paragraph (c)(1)(ix) by removing the Administrative practice and § 668.22 [Amended] word ‘‘and’’ immediately before the procedure, Colleges and universities, number ‘‘1607’’ and adding the words ‘‘, Consumer protection, Education, I 4. Section 668.22 is amended by: and Section 903 of Public Law 96–342 Employment, Grant programs— I A. In paragraph (a)(5)(iii)(E), removing (Educational Assistance Pilot Program)’’ education, Loan programs—education, the words ‘‘electronically or’’. at the end of the paragraph. Reporting and recordkeeping I B. In paragraph (h)(3)(ii)(B), removing requirements, Student aid, Vocational the word ‘‘A’’ and adding, in its place, PART 682—FEDERAL FAMILY education. the words ‘‘With respect to any grant EDUCATION LOAN (FFEL) PROGRAM program, a’’. 34 CFR Parts 682 and 685 I 10. The authority citation for part 682 I C. In paragraph (h)(5)(iii), removing continues to read as follows: Administrative practice and the word ‘‘ended’’ and adding, in its procedure, Colleges and universities, place, the word ‘‘occurred’’. Authority: 20 U.S.C. 1071 to 1087–2, Education, Loans program—education, I 5. Section 668.35 is amended by: unless otherwise noted. Reporting and recordkeeping I A. In paragraph (e)(2), removing the requirements, Student aid, Vocational § 682.101 [Amended] word ‘‘or’’. education. I 11. Section 682.101 is amended in I B. In paragraph (e)(3), removing the Dated: October 25, 2006. paragraph (c) by removing the words ‘‘, punctuation ‘‘.’’ at the end of the or married couples each of whom have Margaret Spellings, paragraph and adding, in its place, the eligible loans under these programs’’, in Secretary of Education. words ‘‘; or’’. the third sentence. I For the reasons discussed in the I C. Adding a new paragraph (e)(4). preamble, the Secretary amends parts The addition reads as follows: § 682.201 [Amended] 668, 673, 674, 682, and 685 of title 34 I 12. Section 682.201 is amended by: § 668.35 Student debts under the HEA and I of the Code of Federal Regulations as to the U.S. A. In paragraph (b)(3), adding the follows: words ‘‘or under the Federal Direct * * * * * Subsidized Stafford/Ford Loan Program PART 668—STUDENT ASSISTANCE (e) * * * and Federal Direct Unsubsidized GENERAL PROVISIONS (4) The overpayment is an amount Stafford/Ford Loan Program, as that a student is not required to return I applicable’’ immediately after the words 1. The authority citation for part 668 under the requirements of continues to read as follows: ‘‘Unsubsidized Stafford Loan Program’’. § 668.22(h)(3)(ii)(B). I B. In paragraph (c)(1)(vii), removing Authority: 20 U.S.C. 1001, 1002, 1003, * * * * * the parentheticals ‘‘(b)(2)(ii)’’ and 1085, 1091b, 1092, 1094, 1099c, and 1099c– adding, in their place, the parentheticals 1, unless otherwise noted. § 668.164 [Amended] ‘‘(c)(2)(ii)’’. § 668.2 [Amended] I 6. Section 668.164 is amended in I C. In paragraph (c)(3), removing the paragraph (g)(2)(i) by adding the word parentheticals ‘‘(b)(1)’’ and adding, in I 2. Section 668.2 is amended in ‘‘parent’’ immediately before the word their place, the parentheticals ‘‘(c)(1)’’. paragraph (b) in the first sentence of the ‘‘PLUS’’. I D. In paragraph (d)(1)(i)(A)(3), definition of Federal PLUS program by I 7. Section 668.165 is amended by removing the reference to adding the word ‘‘dependent’’ ‘‘§ 682.209(a)(7)(viii)’’ and adding, in its immediately after the words revising the introductory text of paragraph (a)(2) to read as follows: place, a reference to ‘‘encourages the making of loans to ‘‘§ 682.209(a)(6)(iii)’’. parents of’’. § 668.165 Notices and authorizations. I E. In paragraph (d)(2), removing the I 3. Section 668.10 is amended by (a) * * * word ‘‘responsible’’ and adding, in its revising paragraph (a)(3) introductory place, the word ‘‘ineligible’’. text to read as follows: (2) Except in the case of a post- withdrawal disbursement made in § 682.204 [Amended] § 668.10 Direct assessment programs. accordance with 34 CFR 668.22(a)(5), if I 13. Section 682.204 is amended by: (a) * * * an institution credits a student’s I A. In paragraph (a)(1)(i), removing the (3) All regulatory requirements in this account at the institution with Direct word ‘‘certified’’ and adding, in its chapter that refer to credit or clock Loan, FFEL, or Federal Perkins Loan place, the word ‘‘disbursed’’. hours as a measurement apply to direct Program funds, the institution must I B. In paragraph (a)(1)(ii), removing the assessment programs. Because a direct notify the student, or parent of— word ‘‘certified’’ and adding, in its assessment program does not utilize * * * * * place, the word ‘‘disbursed’’.
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I C. In paragraph (a)(1)(iii), removing § 682.209 [Amended] (2) The date on which an obligation the word ‘‘certified’’ and adding, in its I 16. Section 682.209 is amended by: is considered to be ‘‘originally issued’’ place, the word ‘‘disbursed’’. I A. In paragraph (a)(6)(v)(B), removing is determined under § 682.302(f)(2)(i) or I D. In paragraph (a)(2)(i), removing the the parentheticals ‘‘(a)(7)(viii)(C)’’ and (ii), as applicable. word ‘‘certified’’ and adding, in its adding, in their place, the parentheticals (i) An obligation issued to obtain place, the word ‘‘disbursed’’. ‘‘(a)(6)(viii)(C)’’. funds to make loans, or to purchase a I E. In paragraph (a)(2)(ii), removing the I B. In paragraph (a)(7)(iv), removing legal or equitable interest in loans, word ‘‘certified’’ and adding, in its the parentheticals ‘‘(a)(8)(iii)’’ and including by pledge as collateral for that place, the word ‘‘disbursed’’. adding, in their place, the obligation, is considered to be originally I F. In paragraph (d)(5), removing the parentheticals, ‘‘(a)(7)(iii)’’. issued on the date issued. word ‘‘certified’’ and adding, in its I 17. Section 682.211 is amended by: (ii) A tax-exempt obligation that place, the word ‘‘disbursed’’. I A. In paragraph (f)(6), removing the refunds, or is one of a series of tax- I G. In paragraph (d)(6)(ii), removing words ‘‘in the case of parent a PLUS exempt refundings with respect to a tax- the word ‘‘certified’’ and adding, in its Loan’’ and adding, in their place, the exempt obligation described in place, the word ‘‘disbursed’’. words ‘‘on whose behalf a parent has § 682.302(f)(2)(i), is considered to be I H. In paragraph (d)(6)(iii), removing borrowed a PLUS Loan’’. originally issued on the date on which the word ‘‘certified’’ and adding, in its I B. Revising paragraph (h)(3). the obligation described in place, the word ‘‘disbursed’’. The revision reads as follows: § 682.302(f)(2)(i) was issued. * * * * * § 682.206 [Amended] § 682.211 Forbearance. I 20. Section 682.305 is amended by: I 14. Section 682.206 is amended in * * * * * I A. In paragraph (c)(2)(v), adding the paragraph (e)(3) by adding the words ‘‘, (h) * * * words ‘‘or a nonprofit organization’’ based on an application received prior (3) Forbearance agreement. After the after the words ‘‘governmental entity’’ to July 1, 2006,’’ immediately before the lender determines the borrower’s or and removing the words ‘‘and 34 CFR, word ‘‘may’’. endorser’s eligibility, and the lender and part 80, appendix G’’ and adding in I 15. Section 682.207 is amended by: the borrower or endorser agree to the their place the words ‘‘and 34 CFR I A. In paragraph (b)(1)(v)(C)(1), adding terms of the forbearance granted under §§ 74.26 and 80.26, as applicable’’. the words ‘‘with the home institution’’ this section, the lender sends, within 30 I B. Revising paragraph (c)(2)(vi). after the words ‘‘verification of the days, a notice to the borrower or I C. In paragraph (d)(1), by adding the student’s enrollment’’. endorser confirming the terms of the word ‘‘rate’’ immediately after the word I B. Revising paragraph (b)(2)(i)(A)(2). forbearance and records the terms of the ‘‘interest’’ the third time it appears in I C. Revising paragraph (b)(2)(i)(A)(3). forbearance in the borrower’s file. the sentence. I D. In paragraph (b)(2)(i)(B), adding the * * * * * The revisions read as follows: word ‘‘, facsimile’’ after the word ‘‘telephone’’. § 682.215 [Amended] § 682.305 Procedures for payment of interest benefits and special allowance and I I E. In paragraph (b)(2)(iv) introductory 18. Section 682.215 is amended by: collection of loan origination fees. text, removing the parentheticals I A. In paragraph (c)(3)(ii)(B), removing * * * * * ‘‘(b)(1)(v)(D)(1)’’ and adding, in their the word ‘‘either’’. (c) * * * place, the parentheticals ‘‘(b)(1)(v)(D)’’. I B. In paragraph (c)(4)(ii)(B), removing (2) * * * The revisions read as follows: the word ‘‘either’’. (vi) With regard to a school that I § 682.207 Due diligence in disbursing a 19. Section 682.302 is amended by: makes or originates loans, the audit loan. I A. Revising paragraph (c)(1)(iii)(B)(4). requirements are in 34 CFR I B. In paragraph (c)(1)(iii)(B)(5), (b) * * * § 682.601(a)(7). removing the cross-reference (2) * * * * * * * * ‘‘§ 682.202(a)(2)(v)’’ and adding, in its (i) * * * place, the cross-reference § 682.401 [Amended] (A) * * * ‘‘§ 682.202(a)(2)(v)(A)’’. I 21. Section 682.401 is amended in * * * * * I C. Removing paragraph (c)(5). paragraph (b)(27)(iv) by removing the (2) For a new student, contacting the I D. Revising paragraph (f) introductory foreign school the student is to attend in parentheticals ‘‘(b)(27)(ii)(D)’’ and text. adding, in their place, the parentheticals accordance with procedures specified I E. Revising paragraph (f)(2). ‘‘(b)(27)(v)’’. by the Secretary, by telephone, e-mail or The revision reads as follows: facsimile to verify the student’s § 682.402 [Amended] admission to the foreign school for the § 682.302 Payment of Special Allowance I 22. Section 682.402 is amended by: period for which the loan is intended at on FFEL loans. I A. In paragraph (e), in the paragraph the enrollment status for which the loan * * * * * heading, removing the word ‘‘borrower’’ was certified. (c) * * * and adding, in its place, the word (3) For a continuing student, (1) * * * ‘‘borrow’’. contacting the foreign school the (iii) * * * I B. In paragraph (e)(1)(iii)(A), adding student is to attend in accordance with (B) * * * the word ‘‘not’’ immediately before the procedures specified by the Secretary, (4) A Federal PLUS Loan made on or word ‘‘pay’’. by telephone, e-mail or facsimile to after July 1, 1998 and prior to October I 23. Section 682.405 is amended by verify that the student is still enrolled 1, 1998, except that no special adding new paragraphs (b)(1)(iii) at the foreign school for the period for allowance shall be paid any quarter through (vii) to read as follows: which the loan is intended at the unless the rate determined under enrollment status for which the loan § 682.202(a)(2)(v)(A) exceeds 9 percent; § 682.405 Loan rehabilitation agreement. was certified. (f) For purposes of this section— * * * * * * * * * * * * * * * (b) * * *
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(1) * * * loans rehabilitated (e.g., credit clearing, loans, and the cost of charging (iii) For the purposes of this section, possibility of increased monthly origination fees or interest rates at less the determination of reasonable and payments). The statement must inform than the fees or rates authorized under affordable must— the borrower of the amount of the the HEA) for need-based grants; and (A) Include a consideration of the collection costs to be added to the * * * * * borrower’s and spouse’s disposable unpaid principal at the time of the sale. income and reasonable and necessary The collection costs may not exceed § 682.604 [Amended] expenses including, but not limited to, 18.5 percent of the unpaid principal and I 26. Section 682.604 is amended in the housing, utilities, food, medical costs, accrued interest at the time of the sale. introductory text to paragraph (h) by work-related expenses, dependent care (vii) A guaranty agency must provide removing the words ‘‘or SLS’’ and costs and other Title IV repayment; the borrower with an opportunity to adding, in their place, ‘‘, SLS or PLUS’’. (B) Not be a required minimum object to terms of the rehabilitation of payment amount, e.g. $50, if the agency the borrower’s defaulted loan. PART 685—WILLIAM D. FORD determines that a smaller amount is * * * * * FEDERAL DIRECT LOAN PROGRAM reasonable and affordable based on the borrower’s total financial circumstances. § 682.408 [Amended] I 27. The authority citation for part 685 The agency must include I 24. Section 682.408 is amended in continues to read as follows: documentation in the borrower’s file of paragraph (c) by adding, after the words Authority: 20 U.S.C. 1087a et seq., unless the basis for the determination if the ‘‘§ 682.207(b)(1)(ii) and (iv)’’, the phrase otherwise noted. monthly reasonable and affordable ‘‘, or Stafford Loan proceeds to a § 685.102 [Amended] payment established under this section borrower in accordance with the is less than $50 or the monthly accrued requirements of § 682.207(b)(1)(i) and I 28. Section 685.102 is amended in the interest on the loan, whichever is (ii),’’. definition of Estimated Financial greater. However, $50 may not be the I 25. Section 682.601 is amended by: Assistance in paragraph (b)(1)(ix) by minimum payment for a borrower if the I A. Revising paragraph (a)(7). removing the parentheticals ‘‘(2)(iii)’’ agency determines that a smaller I B. Revising paragraph (a)(8). and adding, in their place, the amount is reasonable and affordable; I C. In paragraph (a)(9), adding the parentheticals ‘‘(2)(iv)’’. and words ‘‘one or more FFEL program’’ (C) Be based on the documentation before the word ‘‘loans’’. § 685.200 [Amended] provided by the borrower or other The revisions read as follows: I 29. Section 685.200(b) is amended by: sources including, but not be limited I A. Removing the paragraph (b)(1) to— § 682.601 Rules for a school that makes or designation. (1) Evidence of current income (e.g., originates loans. I B. Redesignating paragraphs (b)(1)(i), proof of welfare benefits, Social Security (a) * * * (ii), (iii), (iv), and (v) as paragraphs benefits, child support, veterans’ (7) Must, for any fiscal year beginning (b)(1), (2), (3), (4), and (5), respectively. benefits, Supplemental Security Income, on or after July 1, 2006 in which the I C. In newly redesignated paragraph Workmen’s Compensation, two most school engages in activities as an (b)(4), removing the words ‘‘and Stafford recent pay stubs, most recent copy of eligible lender, submit an annual Ford/Loan Program; and’’ and adding, U.S. income tax return, State compliance audit that satisfies the in their place, the words ‘‘Stafford/Ford Department of Labor reports); following requirements: Loan Program or under the Federal (2) Evidence of current expenses (e.g., (i) With regard to a school that is a Subsidized and Unsubsidized Stafford a copy of the borrower’s monthly governmental entity or a nonprofit Loan Program, as applicable; and’’. household budget, on a form provided organization, the audit must be I D. In newly redesignated paragraph by the guaranty agency); and conducted in accordance with (b)(5), removing the words ‘‘does not (3) A statement of the unpaid balance § 682.305(c)(2)(v) and chapter 75 of title have an adverse credit history in on all FFEL loans held by other holders. 31, United States Code, and in addition, accordance with’’ and adding, in their (iv) The agency must include any during years when the student financial place, the words ‘‘meets the payment made under § 682.401(b)(4) in aid cluster (as defined in Office of requirements of’’. determining whether the nine out of ten Management and Budget Circular payments required under paragraph A–133, Appendix B, Compliance § 685.203 [Amended] (b)(1) of this section have been made. Supplement) is not audited as a ‘‘Major I 30. Section 685.203 is amended by: (v) A borrower may request that the Program’’ (as defined under 31 U.S.C. I A. In paragraph (a)(1)(i), removing the monthly payment amount be adjusted 7501) must, without regard to the word ‘‘originated’’ and adding, in its due to a change in the borrower’s total amount of loans made, include in such place, the word ‘‘disbursed’’. financial circumstances only upon audit the school’s lending activities as a I B. In paragraph (a)(1)(ii), removing the providing the documentation specified Major Program. word ‘‘originated’’ and adding, in its in paragraph (b)(1)(iii)(C) of this section. (ii) With regard to a school that is not place, the word ‘‘disbursed’’. (vi) A guaranty agency must provide a governmental entity or a nonprofit I C. In paragraph (a)(1)(iii), removing the borrower with a written statement organization, the audit must be the word ‘‘originated’’ and adding, in its confirming the borrower’s reasonable conducted annually in accordance with place, the word ‘‘disbursed’’. and affordable payment amount, as § 682.305(c)(2)(i) through (iii); I D. In paragraph (a)(2)(i), removing the determined by the agency, and (8) Must use any proceeds from word ‘‘originated’’ and adding, in its explaining any other terms and special allowance payments and interest place, the word ‘‘disbursed’’. conditions applicable to the required payments from borrowers, interest I E. In paragraph (a)(2)(ii), removing the series of payments that must be made subsidy payments, and any proceeds word ‘‘originated’’ and adding, in its before a borrower’s account can be from the sale or other disposition of place, the word ‘‘disbursed’’. considered for repurchase by an eligible loans (exclusive of return of principal, I F. In paragraph (c)(2)(v), removing the lender. The statement must inform any financing costs incurred by the word ‘‘originated’’ and adding, in its borrowers of the effects of having their school to acquire funds to make the place, the word ‘‘disbursed’’.
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I G. In paragraph (c)(2)(vi)(B), removing by removing the words ‘‘if they are’’ and I 34. Section 685.300 is amended by the word ‘‘originated’’ and adding, in its adding, in their place, the words ‘‘that revising paragraph (b)(8) to read as place, the word ‘‘disbursed’’. is’’. follows: I H. In paragraph (c)(2)(vii), removing I B. In paragraph (d)(1) introductory the word ‘‘originated’’ and adding, in its text, removing the words ‘‘, at the time § 685.300 Agreements between and place, the word ‘‘disbursed’’. the borrower applies for such a loan,’’. eligible school and the Secretary for I 31. Section 685.208 is amended as I C. In paragraph (d)(1)(i) introductory participation in the Direct Loan Program. follows: text, removing the word ‘‘The’’ and * * * * * I adding, in its place, the words ‘‘At the A. By adding a new paragraph (b) * * * (a)(2)(iv). time the borrower applies for a Direct I B. By revising paragraph (g)(3). Consolidation Loan, the’’. (8) Provide that eligible students at I C. By revising paragraph (h)(2). I D. In paragraph (d)(1)(ii) introductory the school and their parents may text, adding the words ‘‘At the time the participate in the programs under part B § 685.208 Repayment plans. borrower applies for the Direct of the Act at the discretion of the (a) * * * Consolidation Loan,’’ immediately Secretary for the period during which (2) * * * before the words ‘‘on the loans being the school participates in the Direct (iv) No scheduled payment may be consolidated,’’. Loan Program under part D of the Act, less than the amount of interest accrued I E. In paragraph (d)(1)(ii)(A), removing except that— on the loan between monthly payments, the words ‘‘six-month’’. except under the income contingent I F. In paragraph (d)(1)(ii)(D), removing (i) A student may not receive a Direct repayment plan or an alternative the words ‘‘Except as provided in Subsidized Loan and/or a Direct repayment plan. paragraph (d)(4) of this section, in’’ and Unsubsidized Loan under part D of the (g) * * * adding, in their place, the word ‘‘In’’. Act and a subsidized and/or (3) A borrower’s payments under this I G. Redesignating paragraphs (d)(1)(iii) unsubsidized Federal Stafford Loan repayment plan may be less than $50 and (d)(1)(iv) as paragraphs (d)(1)(iv) under part B of the Act for the same per month. No single payment under and (d)(1)(v), respectively. period of enrollment; I H. Adding a new paragraph (d)(1)(iii). this plan will be more than three times (ii) A graduate or professional student greater than any other payment. I I. Removing paragraph (d)(4). I J. Redesignating paragraph (h)(1) as or a parent borrowing for the same (h) * * * dependent student may not receive a (2) A borrower’s payments under this paragraph (h)(1)(i). I Direct PLUS Loan under part D of the repayment plan may be less than $50 K. Redesignating paragraph (h)(2) as Act and a Federal PLUS Loan under part per month. No single payment under paragraph (h)(1)(ii). I this plan will be more than three times L. Redesignating paragraph (h)(3) as B of the Act for the same period of greater than any other payment. paragraph (h)(2). enrollment; The addition reads as follows: * * * * * * * * * * § 685.220 Consolidation. § 685.217 [Amended] § 685.303 [Amended] * * * * * I 32. Section 685.217 is amended by: (d) * * * I 35. Section 685.303(e) introductory I A. In paragraph (c)(3)(ii)(B), removing (1) * * * text is amended by removing the words the word ‘‘either’’. (iii) On the loans being consolidated, ‘‘or Direct Unsubsidized Loan’’ and I B. In paragraph (c)(4)(ii)(B), removing the borrower is— adding, in their place, the words ‘‘, (A) Not subject to a judgment secured the word ‘‘either’’. Direct Unsubsidized, or Direct PLUS I through litigation, unless the judgment 33. Section 685.220 is amended by: Loan’’. I A. In paragraph (c)(1), removing the has been vacated; or words ‘‘and to’’ immediately before the (B) Not subject to an order for wage * * * * * words ‘‘Federal Consolidation Loans’’ garnishment under section 488A of the [FR Doc. E6–18183 Filed 10–31–06; 8:45 am] and adding, in their place, the words Act, unless the order has been lifted. BILLING CODE 4000–01–P ‘‘and attributable to the portion of’’, and * * * * *
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Part IV
Department of Education 34 CFR Parts 668, 690, and 691 Student Assistance General Provisions; Federal Pell Grant Program; Academic Competitiveness Grant Program; and National Science and Mathematics Access to Retain Talent Grant Program; Final Rule
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DEPARTMENT OF EDUCATION 1990 K Street, NW., Room 8019, The Secretary specified the Washington, DC 20006–8544. circumstances under which 34 CFR Parts 668, 690, and 691 Telephone: (202) 219–7078. correspondence courses may be applied If you use a telecommunications toward a student’s full-time enrollment RIN 1840–AC86 device for the deaf (TDD), you may call status in a noncorrespondence study Student Assistance General the Federal Relay Service (FRS) at 1– program (71 FR 37992). Provisions; Federal Pell Grant 800–877–8339. The Secretary delineated the Program; Academic Competitiveness Individuals with disabilities may requirements for a student to attend Grant Program; and National Science obtain this document in an alternative more than one institution and receive an and Mathematics Access to Retain format (e.g., Braille, large print, ACG or National SMART Grant (71 FR Talent Grant Program audiotape, or computer diskette) on 37992). request to the contact person listed The Secretary specified the AGENCY: Office of Postsecondary under FOR FURTHER INFORMATION procedures that a student must follow Education, Department of Education. CONTACT. when applying for an ACG or National SMART Grant (71 FR 37992). ACTION: Final regulations. SUPPLEMENTARY INFORMATION: On July 3, The Secretary set forth the ACG and 2006, the Secretary published interim SUMMARY: The Secretary is adopting as National SMART Grant general student final regulations (71 FR 37990) final, with changes, interim final eligibility requirements (71 FR 37992). implementing the ACG and National regulations in: 34 CFR part 691 for the The Secretary specified the SMART Grant programs added to the Academic Competitiveness Grant (ACG) application of an academic year to a HEA by the HERA. The interim final and National Science and Mathematics student’s eligibility for an ACG and regulations were effective on August 2, Access to Retain Talent Grant (National National SMART Grant (71 FR 37992). 2006. At the time the interim final SMART Grant) programs; 34 CFR part The Secretary provided the grade regulations were published, the 668 (Student Assistance General point average (GPA) requirements for Secretary requested public comment on Provisions); and 34 CFR part 690 receiving an ACG or National SMART whether changes to the regulations were (Federal Pell Grant Program). These Grant (71 FR 37993). warranted. final regulations are needed to The Secretary provided the The July 3, 2006, interim final implement provisions of the Higher circumstances under which a student is regulations included a discussion of the Education Act of 1965 (HEA), as not eligible for an ACG in the student’s major issues covered by the regulations. amended by the Higher Education first academic year of enrollment if the The following list summarizes those Reconciliation Act of 2005 (HERA), Pub. student previously enrolled in a issues and identifies the pages of the L. 109–171, enacted on February 8, program of undergraduate education (71 preamble to the July 3, 2006, interim 2006, 20 U.S.C. 1070a–1. FR 37993–37994). final regulations on which a discussion These final regulations for the ACG The Secretary specified the of those issues can be found: and National SMART Grant programs institutional requirements for The Secretary repeated in the ACG specify the eligibility requirements for a documenting a student’s completion of and National SMART Grant regulations student to apply for and receive an a rigorous secondary school program of several definitions and sections from the award under these programs for the study (71 FR 37994–37995). Federal Pell Grant Program regulations 2007–2008 award year. For regulations The Secretary stated the student (71 FR 37990–37991). that will take effect for the 2008–2009 requirements for declaring an eligible The Secretary specified that only award year and subsequent award years, major in order to be eligible for a students who are United States citizens the Secretary intends to conduct National SMART Grant (71 FR 37994). are eligible to receive ACG and National negotiated rulemaking, as required The Secretary provided guidelines for SMART Grants (71 FR 37991). under section 492 of the HEA. recognizing a rigorous secondary school The Secretary detailed the program of study for ACG eligibility (71 DATES: Effective Date: These final requirements for institutions to follow FR 37994). regulations are effective July 1, 2007. when resolving overpayments to The Secretary delineated how eligible Implementation Date: The Secretary students under the ACG and National majors will be determined and their has determined, in accordance with SMART Grant programs (71 FR 37991). duration for the National SMART Grant section 482(c)(2)(A) of the HEA (20 The Secretary defined eligible major Program (71 FR 37995). U.S.C. 1089(c)(2)(A)), that institutions of for purposes of the National SMART The Secretary specified how the higher education (institutions), State Grant Program (71 FR 37991). maximum ACG and National SMART educational agencies (SEAs), and local The Secretary defined eligible Grants will be determined each year (71 educational agencies (LEAs) that program for the ACG and National FR 37995–37996). administer title IV, HEA programs may, SMART Grant programs (71 FR 37991). The Secretary stipulated how ACG at their discretion, choose to implement The Secretary specified the duration and National SMART Grant funds are all of the provisions of these final of student eligibility for the ACG and treated in relation to other aid received regulations on or after November 1, National SMART Grant programs by (71 FR 37996). 2006, including for the 2006–2007 academic year (71 FR 37991). The Secretary detailed how an award year. For further information, see The Secretary delineated the institution calculates an ACG or ‘‘Implementation Date of These institutional participation requirements, National SMART Grant payment for a Regulations’’ under the SUPPLEMENTARY including a requirement that an payment period (71 FR 37996). INFORMATION section of this preamble. institution that participates in the The Secretary specified how an FOR FURTHER INFORMATION CONTACT: Federal Pell Grant Program and offers an institution calculates an ACG or Jacquelyn Butler, U.S. Department of educational program that is an eligible National SMART Grant payment for a Education, 1990 K Street, NW., Room program for the ACG or National student who transfers from another 8053, Washington, DC 20006–8544. SMART Grant programs, must institution (71 FR 37996). Telephone: (202) 502–7890. Sophia participate in the ACG and National The Secretary detailed the McArdle, U.S. Department of Education, SMART Grant programs (71 FR 37992). requirements that govern an
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institution’s determination of a administration. Many of the program specifies that these regulations use the student’s eligibility for a disbursement requirements about which the definition of eligible institution in 34 of an ACG or National SMART Grant, commenter is concerned are required by CFR part 600. This definition includes including provisions regarding changes the HEA. The program requirements in institutions of higher education, as in a student’s GPA, payment prior to the regulations are necessary to deliver defined in § 600.4; proprietary receipt of a GPA, payments for nonterm ACGs and National SMART Grants to institutions, as defined in § 600.5; and self-paced programs, and, for National students and do not mandate any postsecondary vocational institutions, SMART Grants, changes to a student’s changes in institutional academic as defined in § 600.6. major (71 FR 37996–37997). policies or administration. Changes: None. The Secretary specified how often an Changes: None. Comments: Several commenters institution may pay a student (71 FR believed that title IV-eligible certificate Section 691.2 Definitions 37997). programs should be included in the Implementation Date of These Comments: Several commenters definition of an eligible program. The Regulations: Section 482(c) of the HEA believed that the term Scheduled Award commenters argued that, while the law requires that regulations affecting is inappropriately applied to the ACG provides that a student must be enrolled programs under title IV of the HEA be and National SMART Grant programs. or accepted for enrollment in a two- or published in final form by November 1 The commenters believed that the term four-year degree granting institution to prior to the start of the award year (July is confusing because the term relates to be eligible for an ACG, or in a four-year 1) to which they apply. However, that award year eligibility for Federal Pell degree granting institution to be eligible section also permits the Secretary to Grants, which are payable for part-time for a National SMART Grant, it does not designate any regulations that an entity enrollment, but is being applied to prohibit a student from receiving an subject to the regulations may choose to academic year eligibility for ACGs and ACG or National SMART Grant for implement earlier and the conditions National SMART Grants, which are attending a certificate program offered under which the entity may implement payable for full-time enrollment only. by such a degree-granting institution. the provisions early. The Secretary is Some commenters acknowledged the Many commenters asserted that using the authority granted to her under Secretary’s need for a term that could be certificate programs are just as section 482(c) to designate all of the applied if the grants were subject to important, if not more important, than regulations included in this document ratable reduction, but suggested that the degree programs to the future economic for early implementation, beginning Secretary use a different term. Others growth of States and the nation, and the with the 2006–2007 award year, at the believed that the term would introduce students just as deserving of these grants discretion of each institution, SEA, and unnecessary complexity into the ratable as those enrolled in degree programs. In LEA. reduction process. addition, the commenters asserted that Discussion: The Secretary believes many certificate programs attract the Analysis of Comments and Changes that it is prudent to keep the ACG and same caliber of students as those The regulations in this document National SMART Grant programs as enrolled in degree programs. Several were developed through the analysis of similar to the Federal Pell Grant commenters noted that many students comments received on the interim final Program as possible within the who initially seek certificates regulations published on July 3, 2006. constraints of the law. The Secretary subsequently transfer into degree The Secretary invited comments on the believes the term Scheduled Award is programs. A few commenters suggested interim final regulations, and we appropriately applied to all three including in the definition of eligible received 80 comments. programs, as it refers to the amount a program certificate programs that are An analysis of the comments and of full-time student can be awarded for a fully transferable into baccalaureate the changes in the regulations since full academic year, as in the Federal Pell degree programs and certificate publication of the interim final Grant Program. Also, the term is programs that are fully acceptable for regulations follows. We group major appropriate as funds are allocated by credit toward an associate’s degree. One issues according to subject, with award year, and the Secretary commenter believed that, if certificate appropriate sections of the regulations establishes the maximum Scheduled programs were not considered eligible referenced in parentheses. Generally, we Award for that award year. Because the outright, then the definition of an do not address technical and other programs require only full-time eligible program should include one- minor changes. enrollment as an eligibility criterion, year programs that are fully acceptable there will not be Payment and for credit toward an associate’s degree. General Comments Disbursement Schedules published as The commenter asserted that, as with a Comments: One commenter was there are for the Federal Pell Grant two-year program that is fully concerned that the ACG and National Program, but the concept of Scheduled acceptable for credit toward a bachelor’s SMART Grant program requirements Award does apply with regard to such degree, the end result is an acceptable would intrude on the academic policies issues as remaining eligibility for two- or four-year degree. One of institutions with regard to credit transfer students and ratable reductions. commenter noted that the Department’s accrual, calculation of GPA, Changes: None. position is counter to the longstanding determinations of academic progress, Comments: Several commenters policy permitting an institution to the treatment of transferred credits, and believed that it was unclear whether designate a program as eligible for all academic year standing. The commenter proprietary institutions could title IV programs. believed that permitting institutions to participate in the ACG and National Several commenters supported follow current business processes and SMART Grant programs. including in the definition of an eligible practices would be in accord with Discussion: Under the regulations, an program graduate degree programs that current delivery systems and be clear to otherwise eligible proprietary include at least three academic years of students. institution that offers an eligible undergraduate education. One Discussion: The Secretary has no program as defined in § 691.2 may commenter asked the Secretary to intention of interfering with participate in the ACG and National clarify a student’s eligibility for a institutions’ academic policies and SMART Grant programs. Section 691.2 National SMART Grant if the student’s
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status has changed to graduate student should be eligible for ACG and National Contrary to the assertions of some because he or she is in the fourth year SMART Grant funds notwithstanding commenters, the Secretary believes that of a graduate program that contains at the fact that the programs are structured the interpretation of the term academic least three undergraduate years. One differently than the typical separate year in the regulations is not commenter believed that the definition degree programs for undergraduate and inconsistent with other title IV uses of of an eligible program should not graduate programs. For programs that the term. For example, the HEA include a graduate degree program that start at the undergraduate level and lead provisions governing loan limits includes at least three academic years of directly to a graduate degree without provide greater flexibility in this regard undergraduate education. The defining when the student is considered than does section 401A for ACGs and commenter noted that this an undergraduate and graduate student, National SMART Grants. Specifically, interpretation appears broader than the the definition in § 691.5 allows eligible section 428(b)(1)(A) of the HEA sets requirements for Federal Pell Grant students to receive the appropriate loan limits based on whether the eligibility for programs that include a funds from these two grant programs. student has ‘‘successfully completed’’ a fifth year that counts toward a graduate Changes: None. ‘‘year’’ of a program of undergraduate degree program, primarily education education. The Secretary has interpreted certification. The commenter suggested Section 691.6 Duration of Student the term ‘‘successfully completed the that the regulations reference § 668.8, Eligibility—Undergraduate Course of first year of a program of undergraduate which defines an eligible program for Study education’’ in section 428 to relate to a other title IV, HEA eligibility. Comments: Many commenters student’s grade level, as determined by Discussion: The Secretary has objected to the Department’s decision to the institution. The Secretary did not, in determined that because the HEA limits base the duration of eligibility on an so doing, interpret the term academic eligibility to a student enrolled or academic year as defined for purposes year as referring to the borrower’s year accepted for enrollment in a two- or of the title IV, HEA programs, as in college. Instead, the Secretary four-year degree-granting institution, measured in weeks of instructional time interpreted the entirely different phrase eligibility must be limited to two- or and, for undergraduate programs, credit ‘‘first year.’’ The Secretary has no four-year degree programs, as defined in or clock hours. These commenters flexibility to interpret section 401A in a § 691.2. Therefore, certificate programs stated that using the title IV, HEA similar fashion, because, unlike section do not qualify as eligible programs for definition of academic year was 428, section 401A specifically uses the ACGs. However, a student in a two- administratively burdensome and statutorily defined term academic year. academic-year program acceptable for unworkable. Some commenters found The Secretary cannot limit the full credit toward a bachelor’s degree the definition of academic year in part definition to the credit hour provisions, may qualify, provided he or she meets 691 to be inconsistent with other uses as was suggested by the commenters, other eligibility criteria. Because only of the term in administering title IV, because the statutory definition of students attending four-year institutions HEA programs. One commenter academic year requires a minimum are eligible for National SMART Grants believed that only the credit hour number of weeks of instructional time, and a student must be enrolled in the in addition to the completion of a portion of the definition of academic third and fourth academic years to be minimum number of credit or clock year should be used. Commenters also eligible, the Secretary believes that a hours. were concerned that a student’s title IV, student must be enrolled in at least a Changes: None. bachelor’s degree program to be eligible HEA academic year may not match the Comments: Some commenters were for a National SMART Grant. student’s grade level used in the other concerned with the effect previous Section 401A(c)(3)(C) of the HEA, in title IV, HEA programs such as the FFEL enrollment in eligible programs at other defining the term eligible student, refers and Direct Loan programs. The institutions and the amount of transfer to a student enrolled or accepted for commenters recommended that the credits accepted would have on a enrollment in specific years of a Secretary rely on grade level progression student’s academic progression. One program of undergraduate education. as in the FFEL and Direct Loan commenter questioned whether Although a graduate degree program programs to determine the first, second, academic progression was based on that includes at least three years of third, or fourth year of a student’s attendance in each eligible program undergraduate education may be an enrollment. separately, or on the student’s eligible program for ACG and National Discussion: Under section 401A(c)(3) attendance in all eligible programs at SMART Grant purposes, under section of the HEA, a student is eligible for an any institution. Another commenter 401A(c) of the HEA, a student enrolled ACG in the student’s ‘‘first academic thought institutions should be allowed in such a program is eligible for an ACG year of a program of undergraduate to count the credits that are being or National SMART Grant only while education’’ and ‘‘second academic year accepted for a transfer student in the the institution considers the student to of a program of undergraduate same way credits are counted for other be an undergraduate student in education’’ and for a National SMART programs, rather than trying to monitor accordance with the definition of Grant in the ‘‘third or fourth academic previous credits differently for ACGs undergraduate student in § 691.2. Once year of a program of undergraduate and National SMART Grants. a student is considered to be a graduate education.’’ The term academic year is Discussion: For purposes of ACGs and student, the student is no longer eligible defined in section 481(a)(2) of the HEA National SMART Grants, a student’s for a National SMART Grant. as amended by the HERA and explicitly academic progression is not based on With respect to the definition of an applies to all title IV, HEA programs. the student’s enrollment in each eligible eligible program, it is important to The definition provides that an program separately, but rather is based define eligibility for students enrolled in academic year contains a minimum on all eligible programs in which a a program that leads directly to a number of weeks of instructional time student has enrolled over the course of graduate degree without first awarding a and a minimum number of credit or the student’s undergraduate education. bachelor’s degree. Students enrolled in clock hours. The Secretary has no An institution is responsible for these programs have a period of flexibility to deviate from this defined determining whether any previous undergraduate work for which they term. enrollment by a student as measured in
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weeks of instructional time and hours progress to the next academic year. A programs allows an institution to affects the student’s eligibility for an student who entered college with 24 designate a particular educational academic year. If the student previously semester hours of AP credits toward an program as eligible for all title IV received an ACG or National SMART eligible program may be starting to earn programs or only for some title IV, HEA Grant for an academic year, or a portion hours toward completing the second programs and recommended that the of an academic year, an institution must academic year but would still be in the Secretary continue this policy. With so consider the student to have completed first academic year because, for little lead time for implementation, the an eligible program through that purposes of an ACG or National SMART commenters had concerns about the academic year, or that portion of an Grant, no weeks of instructional time impact of the mandatory participation academic year, in weeks of instructional while enrolled in an eligible program on an institution’s administrative time and hours, unless the institution would have elapsed. Similarly, a capability. has information to the contrary. For student who entered college with 24 Several commenters objected to the example, if an institution accepts a semester hours earned as a nonregular exclusion of an administrative cost transfer student who has received a student in an undergraduate program allowance for the ACG and National first-year ACG Scheduled Award, the while enrolled in high school, or SMART Grant programs, particularly institution must consider the student to possibly after high school, would also because of the administrative burden of have completed his or her first year of be in the position of starting to earn the the required rapid implementation. ACG eligibility regardless of the number second academic year of credits but Some commenters believed that the of transfer credits the institution would still be in the first academic year, Secretary was acting inconsistently by accepts. To the extent a determination because, for purposes of an ACG or disallowing the administrative cost does not conflict with information National SMART Grant, no weeks of allowance for the ACG and National related to grants previously received, instructional time while enrolled in an SMART Grant programs, as the when determining the appropriate eligible program would have elapsed. Secretary apparently otherwise academic year for a transfer student, the As a result, students will not be considers the Federal Pell Grant, ACG institution may rely on the transfer discouraged from enrolling in AP or IB and National SMART Grant programs, credits accepted, along with the courses in high school or in college all of which fall under subpart 1 of part estimated number of weeks of courses as a nonregular student while in A, to be conjoined, and section 489(a) of instructional time completed in high school because doing so would not the HEA requires the Secretary to pay an proportion to the academic year of the affect their eligibility for an ACG or administrative cost allowance ‘‘equal to student’s eligible program at the National SMART Grant. $5 for each student at that institution institution to which the student Changes: None. who receives assistance under subpart 1 transferred. Comment: One commenter of part A.’’ Changes: The Secretary has amended recommended that ‘‘grade level’’ be Discussion: The Secretary believes § 691.6(a) and (b) to clarify that a determined once at the beginning of that requiring an institution to student’s academic year progression is each award year and that the student participate in the ACG and National based on attendance in all eligible maintain that level of eligibility for the SMART Grant programs in order to programs in which the student has year as long as the student is full-time. participate in the Federal Pell Grant enrolled over the course of the student’s Discussion: The Secretary does not Program when eligible programs are undergraduate education. agree that the regulations should be offered at the institution is consistent Comments: Several commenters were changed. Although a single annual with the statute’s requirement that the concerned with the treatment of determination may simplify the Secretary award grants to Pell-eligible Advanced Placement (AP) and programs’ administration, it would deny students. The Secretary believes that International Baccalaureate (IB) credits an otherwise eligible student an Congress intended that financially and transfer credits. One commenter additional grant if the student needy students receive all of the grants sought clarification of the treatment of progresses to another academic year to which they are entitled under the AP and IB credits in relation to the during the award year and qualifies for HEA. Requiring institutional requirement that a student must another Scheduled Award. participation, thus, assures that students successfully complete the hours of an Changes: None. otherwise eligible for ACGs and academic year along with the weeks of National SMART Grants receive their Section 691.7 Institutional instructional time to progress to the next awards. Participation academic year. Some commenters were The Secretary believes that the concerned that including AP and IB Comments: Several commenters mandatory participation in the Federal credits, along with transfer credits believed that the requirement that an Pell Grant, ACG, and National SMART earned while enrolled in high school, institution participate in the ACG and Grant programs is distinguishable from would discourage students from taking National SMART Grant programs in the flexibility given to institutions to these courses in high school if they order to continue its participation in the choose whether to participate in the resulted in a student being denied Federal Pell Grant Program is an FFEL or Direct Loan Programs because eligibility for a grant. infringement on institutional autonomy needy students may be eligible for both Discussion: AP or IB credits accepted and is not supported by the statute. a Federal Pell Grant and an ACG or a toward a student’s eligible program Commenters noted that even in the National SMART Grant concurrently, count toward the completion of the FFEL and Direct Loan programs— while students may only obtain loans hours of an academic year. Because AP where, similar to the Federal Pell Grant, under either the FFEL program or Direct and IB credits are earned based on ACG, and National SMART Grant Loan program during a term. secondary school courses and programs, one part of the law Under the HEA, an institution subsequent tests, there are no weeks of encompasses several programs— receives an administrative cost instructional time in postsecondary institutional choice of participation is allowance for each student receiving a education associated with these credits. allowed. Several commenters stated that Federal Pell Grant. Because students A student must successfully complete it was their understanding that the receiving ACGs and National SMART both measures of an academic year to longstanding policy for the title IV, HEA Grants are receiving Federal Pell Grants,
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the institution does not receive an The 2007—2008 electronic FAFSA form Pell Grant Program regulations, as it additional administrative cost (FAFSA on the Web) collects this may cause confusion. allowance. information, and students are able to Changes: None. Changes: None. provide the necessary information as a Section 691.15 Eligibility To Receive a part of the application. More than 90 Section 691.11 Payments From More Grant Than One Institution percent of all students apply electronically using FAFSA on the Web Citizenship Comments: Two commenters or through their institutions. The small disagreed with the requirement that the Comments: Several commenters minority of applicants using a paper objected to the requirement that same school disburse Federal Pell Grant FAFSA currently receive notification by funds and ACG and National SMART students must be U.S. citizens in order mail or, if an e-mail address is provided, to qualify for an ACG or National Grant funds when a student is attending an e-mail that the student may call a more than one institution under a SMART Grant. One commenter stated toll-free telephone number or go to a that preventing permanent residents written agreement. web site to provide the necessary Discussion: The Secretary believes from receiving a National SMART Grant information. The 2007–2008 FAFSA has excludes from consideration more than that it is appropriate to require that the already been approved by OMB under same institution that administers a twenty percent of Federal Pell Grant the Paperwork Reduction Act, but we recipients who are majoring in the student’s ACG or SMART Grant award will consider future improvements to administer the student’s Federal Pell National SMART Grant fields of study. the paper FAFSA during the next Discussion: Section 401A(c)(1) of the Grant award, because the programs are clearance cycle. related in many ways. Several HEA specifies that only U.S. citizens are Changes: None. eligible for ACG and National SMART requirements related to the Comments: Two commenters administration of the Federal Pell Grant Grants. The Secretary does not have the recommended that the regulations authority to change this requirement Program and the ACG and National clarify that an institution has the SMART Grant programs necessitate that through regulations. authority to request additional Changes: None. the same institution disburse funds from application information, similar to the these programs. Secretary’s authority. Federal Pell Grant Eligibility Requirements such as that a student Discussion: Under section 483(a) of receive a Federal Pell Grant Comments: A number of commenters the HEA only the Secretary has the disbursement in the same award year in objected to the requirement that an authority to require a student to provide which the student receives an ACG or eligible student must be receiving a information concerning the student’s National SMART Grant, the requirement Federal Pell Grant disbursement for the need and eligibility for the title IV, HEA that an institution pay only on the same payment period in which he or programs, and the Secretary is required transaction that is the valid institutional she will receive the ACG or National to collect the student’s information on student information record (ISIR) (and SMART Grant. They stated that the the FAFSA. Institutions may not use only the institution paying the Federal statute only requires that a student be any additional application data Pell Grant will know which ISIR is the eligible for a Federal Pell Grant, not collection beyond the FAFSA to valid one), and the requirements related receiving a Federal Pell Grant for the determine a student’s title IV eligibility. to reporting of verification records for same payment period. These However, an institution does have the the Federal Pell Grant Program make commenters believed that the Secretary authority under 34 CFR 668.16(f) and this choice necessary. The Secretary is exceeded her statutory authority and 668.54(a)(3) of the Student Assistance aware that there may be a few situations arbitrarily denied a Federal entitlement General Provisions to require a student in which a student is attending more to otherwise eligible students. The to provide any information or than one institution under a written commenters were especially concerned documentation necessary to resolve any agreement. However, based on these about eligibility for payment periods concerns regarding a student’s eligibility factors, in the very limited that cross award years, pointing out that or application information as well as the circumstances in which different there are various situations in which authority to require documentation institutions would choose to administer students who attend college year-round directly from a cognizant authority and disburse funds from different title may have exhausted their Federal Pell regarding the completion of a rigorous IV, HEA programs, the regulations Grant eligibility yet still have remaining secondary school program of study under this section appropriately eligibility for an ACG or National under § 691.15(b)(2)(ii). The Secretary mandate that the institution that SMART Grant. For these Pell-eligible does not believe that these authorities chooses to disburse Federal Pell Grant students who have already received a need to be repeated in § 691.12. Program funds must also disburse the full scheduled Federal Pell Grant award, ACG and National SMART Grant funds. Changes: None. the receipt of an ACG or National Changes: None. Comments: One commenter SMART Grant may be of critical recommended that all application importance. In addition, some students Section 691.12 Application requirements appear only in the Federal attending low-cost institutions may Comments: Several commenters Pell Grant regulations to eliminate the have substantial outside scholarship recommended that the 2007–2008 Free possibility of conflicting language. assistance that reduces their need and Application for Federal Student Aid Discussion: Section 691.12, while resultant ACG or National SMART (FAFSA) should request the information similar to the Federal Pell Grant Grant during the regular fall through for a student to self-identify that he or Program regulations when possible, spring academic calendar, but may have she has successfully completed a does include provisions specific only to unmet need during the summer term. rigorous secondary school program of the ACG and National SMART Grant Some commenters suggested that it study as provided for in § 691.12(b)(2). programs. The Secretary believes that would be more reasonable to define Discussion: The Secretary agrees that regulations specific to the ACG and Federal Pell Grant eligibility for this this information should be included on National SMART Grant programs purpose in terms of an expected family the FAFSA to the extent practicable. should not be included in the Federal contribution (EFC) within the range for
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a Federal Pell Grant award for the award Discussion: The requirement that a Discussion: As discussed in the year in which the payment period is student have successfully completed a preamble to the interim final placed. rigorous secondary school program of regulations, the Secretary believes that a Discussion: The Secretary agrees with study after January 1, 2006, for a first- student’s GPA for purposes of eligibility the commenters that students should year student and after January 1, 2005, for the ACG and National SMART Grant not have to receive a Federal Pell Grant for a second-year student in order to programs should be calculated using the during the same payment period to be receive an ACG is in section 401A(c)(3) same standards that are used to eligible for an ACG or National SMART of the HEA. The Secretary interprets the calculate GPA for other academic and Grant. Rather, students who would statute as requiring a student to have title IV purposes at the institution. The otherwise be eligible for an ACG or graduated in order to complete a Secretary does not believe scores on National SMART Grant award but have rigorous secondary school program of tests in AP, IB, or College Level already exhausted their Federal Pell study. For example, if a student Examination (CLEP) programs should be Grant eligibility for the award year completed the coursework of a rigorous converted to grades for any purpose should be eligible to receive an ACG or secondary school program in December under the ACG or National SMART National SMART Grant award as long as 2005, but actually graduated from the Grant programs. For National SMART they received a Federal Pell Grant in the program after January 1, 2006, the Grants in particular, the Secretary same award year. student is eligible to receive a first year believes that the student must meet the Change: Section 691.15(a)(2) has been ACG. Although in the early years of the GPA requirement based on all courses revised to require that a student receive ACG program eligible students will be required for the student’s eligible a Federal Pell Grant in the same award of traditional college age, as time goes program, not just those required for the year, rather than the same payment by, students who are not of traditional eligible major. The Secretary believes period, to be eligible for an ACG or college age may establish eligibility this approach is appropriate because it National SMART Grant. The Secretary provided they have completed a minimizes institutional burden when has made conforming changes in rigorous secondary school program of determining whether a student meets §§ 691.65(a)(2) and 691.80(a) to reflect study after the dates provided in the the GPA requirement and is in accord this change in the ACG and National statute. with other title IV, HEA program SMART Grant student eligibility Changes: None. requirements related to GPAs. GPA requirements. In addition, the Secretary cannot be computed the same way for has also made conforming changes to Grade Point Average the ACG Program as it is for the Subpart E of the Student Assistance Comments: Several commenters National SMART Grant Program General Provisions on verification of claimed that how and when to compute because section 401A(c)(3) of the HEA student aid application information by a cumulative GPA is confusing. One requires a student to meet the necessary amending 34 CFR 668.51, 668.52, commenter wanted clarification on GPA only at the end of the student’s 668.54, 668.55, 668.58, 668.59, 668.60, whether GPA for the student’s eligible first academic year for an ACG, but and 668.61. These changes are necessary program meant cumulative GPA, major throughout the student’s third and to clarify that these sections apply to the GPA, or something else. This fourth academic years for a National ACG and National SMART Grant commenter suggested removing the SMART Grant. programs to ensure the synchronous reference to eligible program if the The Secretary believes that the administration of these programs. Secretary intended a cumulative GPA monitoring requirements for SAP would Full-Time Enrollment computation. Some commenters not be adequate to determine eligibility for an ACG or National SMART Grant Comments: One commenter expressed supported the Secretary’s interpretation based on cumulative GPA. Under concern that the ACG and National of the GPA calculation for National § 668.32(f), although a student may be SMART Grant regulations do not serve SMART Grant eligibility in making satisfactory progress according nontraditional students. The commenter § 691.15(c)(3). One commenter pointed to the institution’s published SAP believed that assistance from these out that, for National SMART Grants, standards under § 668.16(e), and if programs should be available to the Secretary did not follow the applicable, under § 668.34, these students who enroll less than full-time. language from section 401A(c)(3)(C)(ii) Discussion: Section 401A(c) of the of the HEA, which provides that GPA is standards allow a student to maintain a HEA requires that a student must be determined in the coursework required GPA below the 3.0 (on a 4.0 scale) GPA enrolled full-time in order to be eligible for the major, but instead required GPA required to be eligible for an ACG or to receive assistance under the ACG and to be determined for the coursework National SMART Grant. In addition, National SMART Grant programs. The required for a student’s eligible § 668.16(e)(4) provides that an Secretary does not have the authority to program. The commenter supported the institution must determine whether a change this requirement through burden reduction in this case, but student is making satisfactory progress regulations. objected to the regulatory approach. at the end of each increment, which Changes: None. Another commenter believed that the must not exceed the lesser of one GPA for ACGs should be defined the academic year or one-half the published Rigorous Secondary School Program of same way it is for National SMART length of the program. In contrast, Study Eligibility Grants. Yet another commenter section 401A(c)(3)(C)(ii) of the HEA Comments: One commenter asked indicated that, for National SMART requires that a student meet the GPA whether a student who has completed Grants, institutions should have the requirement throughout the student’s his or her secondary school coursework flexibility to review academic major and third and fourth academic year. Review in December but who graduated after GPA no more frequently than is of a student’s GPA under the standards January 1, 2005, or 2006, is eligible for required by institutions to monitor set forth in § 668.16(e) would not ensure an ACG. Another commenter was students under their Satisfactory that a student is meeting the concerned that students who are not of Academic Progress (SAP) policy, so as requirements of the National SMART traditional college age would not be to align these two academically related Grant Program. eligible for an ACG. monitoring policies. Changes: None.
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Transfer Student GPA solely to determine a student’s State-recognized dual-enrollment Comments: We received several eligibility under these programs for the program is considered to have been comments related to the GPA of transfer initial payment period of enrollment, enrolled as a regular student for students. One commenter supported the there is no intrusion into institutional purposes of determining prior Secretary’s interpretation for transfer grading policy by the Secretary. Finally, enrollment. A few commenters asked for GPA calculations. Another commenter the Secretary believes that the transfer clarification of the Secretary’s policy on asked for clarification on how to treat hours GPA requirement in § 691.15(d) of prior enrollment. One commenter GPA in the case of transfer students who the interim final regulations is an requested clarification as to whether a are admitted for summer and then take equitable means of establishing a student who earned an associate’s a 3-credit summer course. Three transfer student’s eligibility. Students degree at the same time as he or she commenters requested an option to use who perform poorly overall will likely earned a high school diploma would be the GPA earned at prior colleges as the still transfer in a GPA that is below 3.0. eligible for a second-year ACG, provided indicator of sufficient academic Thus, these students would not be the transfer credits were less than what performance for payment for the first significantly more likely to receive a would be required to establish the term at the new college to determine grant than a student who did poorly but student as a junior. The commenter also eligibility for an ACG or National stayed at the same institution. wanted to know if the same student Changes: None. SMART Grant because, at many would be eligible for a first-year ACG if Comments: One commenter asked the he or she did not earn the associate’s colleges, it would require a significant Secretary to clarify whether an degree, and the transfer credits were less reengineering of the business process to institution is required to follow its than what would be required to calculate a GPA based solely on courses standards for academic and title IV, establish the student as a sophomore. accepted toward the program. The HEA program purposes to determine a Several commenters believed these commenters believed that cumulative transfer student’s GPA once it has final regulations should reflect guidance GPA from other institutions should established eligibility using grades in from the Department that prior sufficiently demonstrate academic coursework that the institution accepts enrollment in an undergraduate achievement. Another commenter for the student’s first payment period. program after completion of high school questioned the fairness of the transfer For example, if an institution normally would not affect a student’s first year hours GPA policy. The commenter was does not use grades on transferred credit eligibility for an ACG and asked the concerned that students who do poorly for SAP or other purposes, does the Secretary to specify an effective date for at the first institution could transfer to institution have the option of using such this guidance. gain ACG or National SMART Grant grades for ACG and National SMART Discussion: The Secretary agrees that eligibility, because only the hours Grant recipients only? the regulations should be clarified to accepted by the new institution would Discussion: An institution’s policies reflect that only enrollment as a regular be considered and all poor grades for the administration of the title IV, student in an eligible program while in excluded. The student who does poorly HEA programs generally must be the secondary school disqualifies a student and stays at the first institution would same for all title IV, HEA programs. An from receiving a first-year ACG in the not be eligible, but the student who institution may not establish a SAP student’s first academic year of transfers could be. policy that treats grades on transferred postsecondary education. Under the Discussion: The interim final credits one way for ACG and National Department’s interpretation of section regulations explain that, in the case of SMART Grant recipients, but another 401A(c)(3)(A), the term ‘‘previously’’ in a transfer student, for the first payment way for recipients of other title IV aid. the phrase ‘‘previously enrolled in a period, institutions must rely on the Changes: None. program of undergraduate education’’ in grades of the courses from the prior section 401A(c)(3)(A)(ii) relates to Prior Enrollment in a Postsecondary institution accepted toward the completion of a rigorous secondary Educational Program student’s eligible program. Transfer school program of study in section credits that were awarded through Comments: Several commenters 401A(c)(3)(A)(i). programs such as AP, IB, or CLEP believed that students who attended A student is considered to have been programs should not be converted to postsecondary programs while previously enrolled in an eligible grades to determine a student’s GPA for completing high school should be program if the student was admitted purposes of eligibility for an ACG or considered first-year students for ACG into that program as a regular student National SMART Grant in the student’s eligibility purposes. Two commenters while still enrolled in a secondary initial payment period after transferring. noted that some colleges offer the school program of study. A regular Once a student has the grades for a opportunity for a high school student to student is a person who is enrolled or payment period at the new institution earn an associate’s degree while accepted for enrollment at a for coursework taken toward the eligible completing high school. One commenter postsecondary educational institution program, the institution may use the stated that it was possible for some of for the purpose of obtaining a degree, GPA calculated from those grades only, these students to enroll in college certificate, or other recognized unless there is an institutional policy programs that only accept some of the postsecondary educational credential that a student’s GPA at the new credits the student has earned while in offered by that institution. Therefore, a institution include transfer grades. high school and, given the institution’s high school student who was enrolled While the Secretary agrees that definition of an academic year, the in a dual-enrollment program with the cumulative GPA from a prior institution student may qualify as a first-year purpose of obtaining an associate’s does serve as an academic performance student. The commenter believed that, if degree is considered to have been indicator, the purpose of calculating the institution was treating the student enrolled as a regular student, whether GPA based solely on coursework as a first-year student, the student the student actually earned the accepted toward the eligible program is should be eligible for a first-year ACG. associate’s degree or not. Thus, the to ensure student eligibility for the ACG One commenter asked the Secretary to student was previously enrolled in an or National SMART Grant programs. clarify whether a student who attended eligible program of undergraduate Because this GPA calculation is used a postsecondary institution as part of a education and is not eligible for a first-
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year ACG. Such a student may be for the student would materialize for the through a student’s fourth year of high eligible for a second-year ACG if his or student when the final high school school. her transfer credits were less than what transcripts are reviewed and also would Institutions do not always withdraw would be required to establish the provide some measure of administrative admissions offers when a student’s final student as enrolled for the student’s ease for colleges when evaluating the high school transcript differs third title IV, HEA academic year. final secondary school transcripts. One significantly from the partial transcript. However, if an otherwise eligible commenter noted that, in the few cases In the case of an ACG, the purpose of student took courses that were part of an when the student substantially deviates the transcript is to document the associate’s degree program, but was not from the level of academic achievement completion of a rigorous secondary enrolled for the purpose of obtaining the on the partial transcript, institutions school program of study. The Secretary associate’s degree (i.e., was not a regular could withdraw the admissions offer. In does not regulate the admissions student), the student would be eligible addition, one commenter suggested standards of postsecondary institutions. for a first-year ACG. adding an option to define a rigorous When a student substantially deviates Changes: Section 691.15(b)(1)(ii)(B) secondary school program of study as a from the level of academic achievement has been revised to clarify that a student total of 16 subject years of study within on the partial transcript, the Secretary is not eligible for a first-year ACG if the the five defined subject areas. The cannot regulate to require institutions to student was previously enrolled as a commenter noted that this definition withdraw their admissions offers. The regular student in an eligible program would reflect a higher subject year Secretary’s concern, for purposes of while still enrolled in a secondary count than the current minimum course awarding an ACG, would be that the school program of study. requirements and a broader curriculum transcript documented the student’s Documenting Completion of a Rigorous than the AP and IB option demonstrates completion of a rigorous secondary Secondary School Program of Study by requiring certain scores in only two school program of study. courses. The commenter believed that Comments: Many commenters While institutions are responsible for this alternative would be acceptable if expressed concern that the requirements maintaining documentation at the coupled with confirmation of for determining and documenting a institution, no specific location is graduation and successful completion of student’s completion of a rigorous required. If an institution requires the senior year courses. Similarly, one secondary school program of study are same coursework that the Secretary commenter asked that an institution too onerous. Several commenters requires for a rigorous secondary school whose academic policy required the asserted that it is unduly burdensome program of study from an admitted same coursework from all admitted for institutions to determine by means student, and the financial aid office is students that the Secretary requires for of a postgraduation high school certain that the transcript or equivalent transcript whether a student has met the rigorous secondary school programs of document confirming completion of a definition of a rigorous secondary study under § 691.16(d) be permitted to rigorous secondary school program of school program of study under assume that an otherwise-eligible study is kept at the admissions office or § 691.16(d). Commenters noted that this student had completed a rigorous some other part of the institution, it requirement will be a substantial new secondary school program of study, could assume a student met the rigorous undertaking for institutions and they without requiring the institution to secondary school program of study will have to come up with the resources retrieve and review every transcript. criterion. or processes to comply. One commenter requested Finally, it should be noted that the Several commenters noted that many clarification as to whether there is a minimum scores for AP exams were community colleges do not collect high minimum score required for rigorous published in § 691.16(d)(5) of the school transcripts as part of their programs like AP and, if so, whether it interim final regulations. admissions process; instead, they use is the minimum required by, for Changes: None. testing to determine readiness. Other example, the institution or the State. Declaring an Eligible Major commenters noted that the transcripts Finally, one commenter asked for they are evaluating for ACGs reflect only clarification as to whether it is Comments: One commenter believed six or seven semesters of high school necessary to have documentation such that the Federal Government should not coursework. These commenters were as for AP scores in the Financial Aid insert itself into the process of concerned that there would be a office or if maintaining documentation determining when a student declares a problem with the timing of admissions at the Admissions or Registrar’s Office major as this action usurps an decisions and initial financial aid would be acceptable. institution’s prerogative to establish its package offers, which occur in the Discussion: The Secretary believes the own academic requirements. Another winter or spring prior to enrollment in current regulations appropriately commenter requested clarification on the fall, because there may be balance statutory requirements with how to document intent to declare an uncertainty about whether a student institutional burdens raised by eligible major and how to determine would complete a rigorous secondary commenters. While the Secretary agrees when a student is no longer displaying school program of study. The that there is a concern with respect to an intent to declare an eligible major. commenters proposed several options to the timing of the availability of One commenter suggested that, when an ameliorate the burden of documenting complete high school transcripts and institution’s academic requirements do completion of a rigorous secondary admissions and financial aid package not allow a student to declare an eligible school program of study. The offers for first-year ACGs, section major in time to qualify for a National commenters suggested adding an option 401A(c)(3)(A)(i) and (c)(3)(B)(i) of the SMART Grant, the student should be for defining a rigorous secondary school HEA requires a student to complete, and allowed to meet the declaration of program of study that could be applied graduate from, a rigorous secondary eligible major requirement by enrolling at the midpoint of a student’s final year school program of study in order to be in the courses deemed by the institution in high school, noting that this option eligible for an ACG. The Secretary to be consistent with fulfilling the would provide greater assurance that believes that a rigorous secondary requirements of an intended eligible the initial financial aid award package school program of study continues major and declaring an intention to
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complete a major in an eligible field of questioned whether a particular State clarity of course descriptions. However, study. standard requiring three years of math the Secretary does not believe that it is Discussion: The Secretary does not (at the algebra I level or higher) is appropriate to establish a national agree that the regulations intrude on an intended to be different from the standard for the wording of State institution’s prerogative to establish its Federal standard requiring three years of submissions of rigorous secondary own academic requirements. In math (including algebra I and a higher school programs of study or course addition, the Secretary believes that level course such as algebra II, descriptions and recommends that documentation of intent to declare an geometry, or data analysis and concerns with consistency of wording eligible major should be determined by statistics). A few commenters were be taken up with States and secondary institutional policy. The regulations concerned with the lack of uniformity in schools. permit a student to fulfill the secondary school course descriptions, The Secretary believes it is imperative requirement that he or she declare an noting that States often combine courses that there be an annual opportunity for eligible major by enrolling in the into one general course; such as States to submit changes to their courses deemed by the institution to be combining algebra I and geometry into rigorous programs of study because, to consistent with fulfilling the a math I course offered over two the extent that these changes result in a requirements of an intended eligible academic years. The commenters more rigorous program of study, major and declaring an intention to believed that it is unreasonable to students from that State graduating in complete a major in an eligible field of expect an institution to be familiar with that year would be held to the new study if that is the institutional policy. the graduation requirements for all standard when applying for an ACG. If, Changes: None. school districts in order to determine however, these changes result in a less Section 691.16 Recognition of a whether a student’s courses meet the rigorous program of study, the Secretary Rigorous Secondary School Program of definition of a rigorous secondary may deny recognition if the Secretary Study school program of study. determines the level of rigor has fallen One commenter believed that the below the HEA’s intended level. Comments: A few commenters rigorous secondary school programs of Changes: None. supported the multiple options for study established by States and Comments: A few commenters demonstrating completion of a rigorous recognized by the Secretary should not questioned whether coursework taken secondary school program of study, be revised annually as significant prior to high school counts toward the while other commenters believed that changes would create confusion for minimum course requirements under additional secondary school programs of students and undue burden for § 691.16(d)(2). Specifically, one study should be recognized as rigorous. institutions. commenter asked whether a student One commenter believed that the Discussion: Section 401A(f) of the who is otherwise eligible under recognized State secondary school HEA requires the Secretary to recognize § 691.16(d)(2), and who took a foreign programs of study should be the single at least one rigorous secondary school language in 8th grade but did not take standard for a rigorous secondary school program of study in each State. As there one later is eligible for an ACG. program of study, as it would greatly is no statutory requirement for States to Another commenter noted that many reduce the administrative burden for submit programs for recognition, the students take algebra I prior to high institutions. A few commenters believed Secretary believed it was necessary to school; therefore, it does not appear on that the minimum course requirements develop additional options for the student’s high school transcript. The in § 691.16(d)(2) are too strict and completion of a rigorous secondary commenter asked the Secretary to would unfairly eliminate from eligibility school program of study that would clarify under what circumstances such a students who should be eligible for an ensure that students in each State have student can be considered to have ACG. Two commenters believed that the opportunity to qualify for an ACG. completed algebra I for the minimum some students who meet their The Secretary believes that the breadth mathematics course requirements under admissions requirements but who do of the options provides the vast majority § 691.16(d)(2). In particular, the not or cannot take the required courses of students for whom this grant program commenter wanted to know if an in high school should not be eliminated was intended with sufficient means to institution may assume that a student from eligibility. For example, one demonstrate eligibility for an ACG. To has completed algebra I if it is not commenter noted that advanced the extent that these options do not included on the transcript, but students who reduce their high school provide sufficient means to demonstrate geometry, algebra II, or calculus are classes, such as English, during their eligibility, the Secretary encourages included. last year of high school to take college individuals, high schools, and Discussion: If a student completed the classes may not qualify, even though postsecondary institutions to work secondary school curriculum in a school their secondary school programs of together with States so that States may system in which the high school does study were quite rigorous. Another submit additional or revised programs not include other secondary school commenter gave the example of a for recognition. As for an advanced grades, e.g., the high school does not student who otherwise qualified as a student who reduces his or her high include grade eight or nine, institutions student who had completed a rigorous school classes to take college classes, should use their normal processes for secondary school program of study, but the Secretary reminds commenters that determining whether coursework who attended a high school that did not completion of college courses that meet completed in earlier grades is included. offer physics. the minimum course requirements for a However, an institution may make One commenter believed that the rigorous secondary school program of certain assumptions, as appropriate, Secretary should ensure that all study count toward completion of a based on its knowledge of a school approved State programs use wording rigorous secondary school program of system’s curriculum. For example, if a consistent with the minimum course study if they are accepted toward the high school transcript covering only requirements under § 691.16(d)(2) to the student’s high school diploma. grades 10–12 shows completion of three extent possible so that institutions will The Secretary understands the years of English, the institution may know that differences are not just commenters’ concerns with inconsistent assume that the student completed a semantic. For example, the commenter wording in State programs and a lack of year of English in the ninth grade.
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Changes: None. have the opportunity to qualify for an two IB courses, whether or not they are Comments: One commenter ACG. The Secretary believes that the part of an IB Diploma Program. recommended that the minimum breadth of the options, including Discussion: A score of ‘‘4’’ or higher science course requirements in participation in honors programs on either the standard level or higher § 691.16(d)(2) be changed to recognize established by States or completion of level IB examination for at least two IB other challenging science coursework. AB or IB courses and the earning of a courses meets the exam portion of the The commenter believed that a student minimum score on the exams for those IB standard for completion of a rigorous who completed physical science in courses, provides the vast majority of secondary school program of study. The ninth grade, biology in tenth grade, students for whom this grant program Secretary agrees that a student who environmental science in eleventh grade was intended with sufficient means to completes and achieves the required and anatomy and physiology in twelfth demonstrate eligibility for the ACG. minimum score for the exam on at least grade should be considered to have met Changes: None. two IB courses, whether or not they are the minimum science course Comments: One commenter part of an IB Diploma Program, should requirement. questioned whether students attending be considered to have completed a Discussion: The Secretary believes an institution with a ‘‘bridging year’’ rigorous secondary school program of that the minimum coursework program and completing their senior study. requirements in the regulation are year of high school at the postsecondary Changes: Section 691.16(d)(4) has appropriate. These standards are institution would be eligible for a been changed to clarify that a student patterned after the recommendations for second year ACG if they do not receive who completes and achieves the the essentials of a strong curriculum in a high school diploma, but instead earn required minimum score for the exam the National Commission on Excellence a General Education Development (GED) on at least two IB courses, whether or in Education’s report, A Nation at Risk: certificate. One commenter believed that not they are part of an IB Diploma The Imperative for Educational Reform the Department was interpreting the Program, is considered to have available on the Department’s Web site regulations to mean that a student who completed a rigorous secondary school at http://www.ed.gov/pubs/NatAtRisk/ obtains a GED is automatically ineligible program of study. index.html. As previously noted, to the for an ACG or National SMART Grant Comments: One commenter believed extent that these options do not provide simply because he or she has obtained that high scores on standardized sufficient means to demonstrate a GED. The commenter noted that some achievement tests, such as the SAT and eligibility, the Secretary encourages home-schooled students, who otherwise ACT, should be recognized as a rigorous individuals, high schools, and qualify as having completed a rigorous secondary school program of study. The postsecondary institutions to work secondary school program of study, are commenters believed that this together with States so that States may advised to take the GED to meet college recognition would be consistent with submit additional or revised programs admission requirements. The the inclusion of completion of IB or AP for recognition. commenter asked the Department to courses with high test scores as rigorous Changes: None. make clear that such students who programs because they establish that a Comments: One commenter obtain the GED are not automatically student has attained a level of ability in recommended that an exception be ineligible. completing his or her secondary school made to the foreign language course Discussion: A student who obtained a program that is commensurate with requirement under § 691.16(d)(2) for GED is not automatically ineligible for completing a rigorous secondary school students with physical limitations such an ACG or National SMART Grant. program of study. The commenter as hearing loss. The commenter noted However, a student who obtains a GED believed that this proposal would that, because of language deficits that in lieu of a high school diploma cannot reduce burden on institutions, as these accompany hearing loss, most deaf use the GED, alone, to demonstrate test scores are readily accessible. The students do not take languages other completion of a rigorous secondary commenter believed that States and test than English as a part of their secondary school program of study. The owners could work together to programs, and few schools for the deaf Department believes that completion of determine the qualifying test score. require or encourage foreign language as a GED program alone does not Discussion: The Secretary does not a part of their curriculum. The demonstrate the academic achievement agree that high scores on standardized commenter added that even if American of a rigorous secondary school program achievement tests should be recognized Sign Language (ASL) meets the of study. Such a student can as a rigorous secondary school program definition of a foreign language, most nonetheless qualify for an ACG with a of study. Unlike the IB and AP tests, deaf students are already ASL users and GED by completing one of the rigorous there are no specific courses or do not need to study it in secondary secondary school programs of study curriculum that correspond to the school. recognized under § 691.16. standard achievement tests. The Discussion: While the Secretary Changes: None. Secretary believes that both components understands the concerns raised by the Comments: Two commenters asked are necessary to demonstrate that a commenters, she believes that a change the Department to clarify which level of student has successfully completed a to this requirement is unnecessary. The IB examination, standard or higher, a rigorous secondary school program of Secretary considers one year of ASL to student must take to qualify for an ACG. study. meet the requirement of one year of a One commenter believed that the Changes: None. language other than English necessary to regulations confuse the IB Diploma meet the minimum course requirements program with a stand-alone IB course. Section 691.17 Determination of under § 691.16(d)(2). Also, as stated The commenter believed that the Eligible Majors previously, the Secretary believed it was regulations should be changed to make Comments: Several commenters necessary to develop additional options clear that a student is considered to whose institutions do not offer programs for completion of a rigorous secondary have completed a rigorous secondary in the eligible majors were concerned school program of study that would school program of study if he or she that their institutions were excluded ensure that students in States that did completes and achieves the required from the National SMART Grant not submit programs for recognition minimum score for the exam on at least Program. In one case, the institution
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offered majors with concentrations in commenter requested clarification on institutional process that it chooses to the eligible fields. The commenter whether a student would still be eligible document this intent. requested clarification on whether for a National SMART Grant if that Changes: None. students in these types of programs student’s major is removed from the list Section 691.61 Submission Process would be eligible. In another case, the of approved majors at any time and Deadline for a Student Aid Report institution offered intensive instruction subsequent to the student’s first or Institutional Student Information in math and science as part of a liberal National SMART Grant payment, when Record arts degree. Two commenters from this the student’s payment was based on the institution requested that this student’s intent to declare an eligible Comments: One commenter noted institution be included among eligible major as described in that § 691.61(b) cross-referenced institutions and one of these § 691.15(c)(2)(i)(B). Finally, one §§ 668.60 and 668.164 and that commenters also requested an commenter requested clarification on an conforming changes were made to alternative means for students whose institution’s responsibility to ensure § 668.164, but that § 668.60 was not institution does not offer eligible majors that qualifying majors are being actively amended to include the ACG and to qualify. pursued. National SMART Grant programs. Therefore, the commenter stated that it Discussion: Section 401A(c)(3)(C) of Discussion: Section 401A(c)(3)(C) of is unclear which provisions of § 668.60 the HEA requires a student to pursue a the HEA specifies that a student must apply to the ACG and National SMART major in the physical, life, or computer pursue a major in the physical, life, or Grant programs. sciences, mathematics, technology, or computer sciences, mathematics, engineering (as determined by the Discussion: The Secretary agrees that technology, or engineering (as the requirements in § 668.60 that apply Secretary pursuant to regulations); or a determined by the Secretary pursuant to critical foreign language in order to be to the ACG and National SMART Grant regulations); or a critical foreign programs need clarification. eligible for a National SMART Grant. No language in order to be eligible for a alternative categories of majors are Changes: Section 668.60 is revised to National SMART Grant. Evolutionary clarify how it applies to the ACG and indicated in the HEA, and the Secretary Biology was omitted from the original does not have the authority to provide National SMART Grant programs. list of eligible majors in error; a revised Comments: One commenter stated alternative categories through list including this major and Exercise regulations in those cases where that § 691.61(a) appears to place the Physiology, which was also omitted in responsibility on institutions to review ineligible majors include concentrations error, has been posted. in eligible fields or where liberal arts the record of all FAFSA filers to identify The list of eligible majors will be degrees do not provide eligible majors eligible students rather than just those reviewed annually; however, section but do include some intensive FAFSA filers identified by the Secretary 401A(c)(3)(C)(i)(II) of the HEA only instruction in eligible fields. as potentially eligible students. The Changes: None. requires consultation on the list of commenter suggested that the Comments: Several commenters critical foreign languages with the institution should be allowed to rely on addressed the determination of eligible Director of National Intelligence. The information on the Student Aid Report majors. One commenter expressed current list of critical foreign languages (SAR) or ISIR as to whether the student concern that a number of scientific was developed in consultation with the is potentially eligible to receive an ACG fields were omitted and that the eligible Director of National Intelligence as or National SMART Grant. That is, if the languages were too narrowly identified required. student’s SAR or ISIR does not indicate for purposes of available undergraduate The Secretary will continue to that the student is potentially eligible to majors. Another commenter was identify a list of eligible majors, receive an ACG or National SMART concerned that Evolutionary Biology including critical foreign languages, Grant, the institution would not be was omitted from the eligible majors annually for an award year to ensure required to check its own records or list. One commenter was concerned that that the most current information is take any other action to determine teaching degrees in the science and used and will publish the list in time for whether the student is potentially math fields were not included in the list institutions to plan awards accordingly. eligible. Rather, the institution could of eligible majors. Another commenter Because a student’s intent to declare an assume that the student is not eligible suggested taking a more thorough look eligible major as described in for the ACG or National SMART Grant at the majors, especially in areas of § 691.15(c)(2)(i)(B) serves as a proxy for and take no further action. national need, such as nursing and actually declaring an eligible major until Discussion: To implement the ACG public health. Yet another commenter the declaration is permitted by an Program, the Secretary has instituted was concerned about the consultation institution, under § 691.17(c) a student procedures for students to self-identify process and thought that the would still be eligible if a student’s that they have completed a rigorous Department should consult directly major is removed from the list of secondary school program of study and with organizations such as the National approved majors at any time subsequent institutions, at their option, may Academy of Sciences and other to the student’s first National SMART generally rely on this self-identification professional scientific organization to Grant payment, when the student’s process. Most potentially eligible receive input on the determination of payment was based on the student’s students will have had an opportunity eligible majors. intent to declare an eligible major as to self-identify through the FAFSA One commenter recommended that, if described in § 691.15(c)(2)(i)(B) as well (application) process on this matter and the Department was unable to supply as when the student’s payment was will have a positive indication on their the list of eligible majors by February 1 based on a declared eligible major under SAR or ISIR with regard to completion preceding the academic year for which § 691.15(c)(2)(i)(A). Finally, it is the of a rigorous secondary school program determinations of eligibility must be institution’s responsibility to ensure of study. Under § 691.61, an institution made, the Department should permit an that qualifying majors are being actively is allowed to rely on the information on institution to use the current list for pursued. The institution is responsible a student’s SAR or ISIR as to whether first-time determinations of National for ensuring this active pursuit of the student is potentially eligible for an SMART Grant eligibility. One eligible majors and may use any ACG, unless the institution has
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information from another source announced annually in conjunction cost of attendance minus EFC minus indicating that the student is potentially with the announcement of Scheduled estimated financial assistance. Need- eligible. For example, if a student whose Award amounts for the Federal Pell based grant assistance cannot replace a SAR or ISIR does not indicate potential Grant Program. Historically, these family’s expected contribution toward a eligibility for the ACG (because the announcements have occurred between student’s postsecondary expenses. student has not yet self-certified as to December and February prior to the The overaward threshold allowed his or her completion of a rigorous beginning of the award year. under the campus-based programs exists secondary school program of study) The Secretary uses multiple data to assist institutions with the variations informs the institution that he or she sources to best predict the number of of earnings under the Federal Work- has completed such a secondary school eligible recipients for the ACG and Study program and the estimates program of study, and is thus National SMART Grant programs and institutions must make in projecting potentially eligible for the ACG, then will monitor disbursements from both utilization of Federal Perkins Loan and the institution must follow up on that programs based on current year reports Federal Supplemental Educational information and determine whether the received from postsecondary Opportunity Grant funds as well as the student is eligible for the ACG. institutions. Every effort will be made to bearing of collections on the availability Outside of the eligibility requirements avoid ratable reductions. However, if of funds under the Federal Perkins Loan common to both the ACG and the ratable reductions are necessary, the Program. Because these issues do not National SMART Grant programs found Secretary will notify the community exist for the ACG and National SMART in § 691.15(a), i.e., the general eligibility promptly of the new Scheduled Awards Grant programs, an overaward threshold requirements from 34 CFR part 668, and the procedures for ratably reducing is not necessary. subpart C; U.S. citizenship; receiving a the ACG and National SMART Grant Regarding the confusion over which Federal Pell Grant; and being enrolled awards. definition of estimated financial full-time, the primary eligibility Changes: None. assistance applies to the ACG and National SMART Grant programs, the requirements for receipt of a National Packaging SMART Grant relate to pursuit of an Secretary agrees that the differences Comments: Several commenters eligible major and having the requisite among the three definitions can cause objected to the requirement that the GPA. Information about these eligibility confusion. Because the definitions in amount of an ACG or National SMART factors will not be found on the SAR or §§ 682.200(b) and 685.102(b) have Grant for an academic year, in ISIR. Thus, for the National SMART exclusions based on statutory language combination with the student’s EFC and that does not apply to the ACG and Grant Program, there is not the same any other student financial assistance issue of determining eligibility for National SMART Grant programs, we available to the student, cannot exceed intend to modify the language in students who do not have eligibility the student’s cost of attendance for that information on their SAR or ISIR as § 691.62(c) to reference the definition of academic year. One commenter estimated financial assistance in there is for the ACG Program. However, suggested that grants from both it should be noted that an institution § 673.5(c). programs be awarded, similar to Federal Chapter 31 veterans’ education does have to determine whether its Pell Grants, without regard to either the benefits may not be excluded from the students meet the eligibility student’s financial need or the amount definition of estimated financial requirements for the National SMART of other student financial assistance assistance because there is no statutory Grant Program, including which of its received. Another commenter proposed basis for exclusion of Chapter 31 students are in eligible majors, and that the grants be allowed to replace benefits. Section 428(a)(2)(C)(ii) award those students, if otherwise EFC, but not to exceed the student’s cost authorizes only Chapter 30 veterans’ eligible, a National SMART Grant. of attendance when combined with Changes: None. education benefits and AmeriCorps other student financial assistance benefits and awards to be excluded Section 691.62 Calculation of a Grant received. when determining subsidized loan An additional set of commenters Ratable Reduction eligibility. Further, when determining a requested that a $300 overaward student’s eligibility for an ACG or Comments: Two commenters threshold be added to the ACG and National SMART Grant, an institution expressed concern over the potential for National SMART Grant programs, may exclude from estimated financial ratable reductions to the awards. One of similar to the threshold allowed under assistance any portion of a subsidized the commenters inquired as to when § 673.5(d) for the campus-based Federal Stafford Loan that is equal to or award maximums would be considered programs. One of these commenters also less than the amount of the student’s final for the year. The other commenter believed that there is confusion over Chapter 30 veterans’ education benefits offered multiple suggestions for which definition of estimated financial and AmeriCorps education awards or avoiding ratable reductions. assistance applies to the ACG and post-service benefits. Discussion: Section 401A(d)(1)(B)(ii) National SMART Grant programs. Yet Changes: Section 691.62(c) has been of the HEA requires the Secretary to another commenter requested that revised to provide that other student ratably reduce the maximum grant Chapter 31 veterans’ education benefits financial assistance is estimated amounts for both programs when the be excluded from all definitions of financial assistance as defined in funds available for a given award year estimated financial assistance. § 673.5(c). are less than the amount needed to fund Discussion: The Secretary believes full awards for all eligible students. The that the packaging requirement is Section 691.63 Calculation of a Grant Secretary establishes the ACG and appropriate. As noted in the preamble to for a Payment Period National SMART Grant Scheduled the interim final regulations, ACGs and Comments: One commenter suggested Awards based on the availability of National SMART Grants are need-based that the Department review the Federal funds appropriated and the anticipated grants in that the HEA requires Pell Grant formulas (and thus, these number of eligible students. Scheduled recipients to be eligible for Federal Pell formulas in § 691.63) to simplify the Awards for the ACG and National Grants. Section 471 of the HEA defines payment period calculations. The SMART Grant programs will be the amount of need of any student as commenter also asked the Secretary to
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consider revising the academic year providing cross-references to the term’s) grades are posted. The definition for clock hour programs from Federal Pell Grant Program regulations commenter also wanted to know what 30 weeks to 26 weeks due to the change throughout the ACG and National would happen if the student’s GPA was made by the HERA. SMART Grant regulations. back up to at least 3.0 by the spring Discussion: Given the time constraints Changes: None. term. Another commenter asked how associated with the development of Section 691.75 Determination of grades of incomplete are to be regulations resulting from the enactment Eligibility for Payment considered with respect to the GPA of the HERA (especially with respect to requirement. Another commenter asked the implementation of the ACG and the Comments: With respect to the for clarification of how an institution National SMART Grant programs), the institution’s determination about should determine GPA and academic Secretary does not believe that it would whether a student is pursuing an year level when the institution first be prudent to attempt to change eligible major at the beginning of a becomes aware of a student’s prior formulas used in the calculation of payment period, one commenter postsecondary attendance after the grants for the Federal Pell Grant, the suggested changing ‘‘is no longer student’s transfer credits for fall ACG, and the National SMART Grant pursuing a required major’’ in attendance (for which no aid was programs at this time. While such a § 691.75(b)(3) to ‘‘is not pursuing a received) are received late in the spring review and possible revision of those required major’’ to cover not only those semester. formulas may prove to be beneficial at situations in which the student had at Finally, several commenters raised an a later time, the Secretary believes that, one time (before the beginning of the issue related to eligible students who, in since the formulas have been used for a payment period) been pursuing an fact, did meet during the payment long time and are familiar to the eligible major, but stopped doing so, but period in question with the eligibility financial aid community, it would be also situations in which the student had requirements for an ACG or a National unwise to revise them now when the aid never pursued, and is still not pursuing, SMART Grant associated with the GPA community already has to deal with the an eligible major. or with the declaration of an eligible changes resulting from the HERA. Discussion: The Secretary agrees with major, but for whom the institution To reflect the change made by the the commenter’s suggestion. With this erred when it determined that the HERA, a change to the definition of an change, all situations in which the students failed to meet those academic year for programs offered in institution determines that the student requirements and did not discover its clock hours was made in previously is not pursuing a required major at the mistake until after the end of that published regulations. Section 668.3 beginning of the payment period will be payment period. The commenters now contains a definition of an covered. Then, as the regulations go on suggested that these students should academic year that provides that 26 to address, if the institution reverses a receive a grant for the completed weeks of instructional time is the determination before the end of the payment period. minimum number of weeks of payment period, the institution may pay Discussion: Section 691.75 addresses instructional time in an academic year the student a National SMART Grant for the factors that an institution must for a clock hour program, while the entire payment period. consider to determine that a student is retaining 30 weeks of instructional time Changes: Section 691.75(b)(3) and (c) eligible each time it makes a payment to as the minimum number of weeks of has been revised to change ‘‘is no longer a student of an ACG and a National instructional time for a credit hour pursuing a required major’’ to ‘‘is not SMART Grant. Section 691.75(a)(1) program. That definition also retains the pursuing a required major.’’ provides that the institution has to provision that, under certain conditions, Comments: One commenter asked determine that the student meets the the Secretary may approve an academic how the financial aid office should deal eligibility criteria listed in § 691.15. For year with a minimum of 26 weeks of with eligibility for a student for a a National SMART Grant, one of those instructional time for a credit-hour National SMART Grant if the student eligibility criteria is that the student be program. was one hour short of being a junior at in the third or fourth academic year of Changes: None. the beginning of one term, but reached an eligible program. (Note that the third Comments: One commenter believed junior status by the next term. The academic year of the student’s program that the determination of enrollment commenter asked if the aid office is not necessarily synonymous with the status is an eligibility criterion and not should start paying such a National junior year of the student’s program.) a factor in the calculation of the grant SMART Grant in the middle of the Nevertheless, if the student is one hour payment and that for payments for academic year. The commenter also short of starting his or her third payment periods calculated under asked whether the aid office should pay academic year at the beginning of a term § 691.63(d), commonly referred to as a student for the spring and summer (e.g., the fall term), but begins the third Formula 3, it would seem much simpler terms only, if the student does not have academic year by the next term (the just to direct the institution to use the at least a 3.0 GPA before fall starts but spring term) (presumably at the same enrollment status determined for a does before spring. The commenter also beginning of that term), then the Federal Pell Grant to determine asked about the National SMART Grant student, if otherwise eligible, qualifies eligibility for an ACG or National eligibility of a student who changed to for a National SMART Grant for that SMART Grant award. The commenter an ineligible major. The commenter spring term. The student would not suggested that a cross-reference to the asked whether the aid office would stop qualify for a National SMART Grant Federal Pell Grant Program regulations paying the student at the point at which payment for the fall term in this could be used to determine a student’s the student changed to an ineligible example but may qualify for any enrollment status for an ACG or major or would retroactively take the remaining second-academic-year ACG National SMART Grant. National SMART Grant away from the eligibility for this fall term. The Discussion: The Secretary believes student entirely. institution would start paying the that the public will benefit from a Another commenter asked what National SMART Grant in the middle of complete set of regulations to should be done if a student has a 3.0 the institution’s year, i.e., at the implement the ACG and National GPA when the fall term starts but drops beginning of the spring term. This issue SMART Grant programs, rather than below that average after (the previous is further clarified in § 691.63(h), which
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provides that, in the case of a payment not yet available, § 691.75(d) provides Changes: The Secretary has removed period with two academic years, an that the institution may make one § 691.78(b) and made a conforming institution must calculate the payment interim disbursement for a payment change by removing the provision from for the payment period using the ACG period. However, when those grades § 690.78 of the Federal Pell Grant or National SMART Grant Scheduled become available, they must be factored Program regulations. Award of the academic year being into the GPA. At that time, if the student completed. does not have the required GPA, the Section 691.80 Redeterminations of With regard to a student who does not payment made by the institution before Eligibility for a Grant Award have at least a 3.0 GPA (for the first the student’s GPA could be calculated Comments: One commenter asked the academic year for a second-year ACG, becomes an overpayment that must be Secretary to clarify how ACG and and for the most recently completed repaid by the institution. These National SMART Grant funds should be payment period in the student’s eligible provisions would apply, as well, to any handled if a student receives the funds program for a National SMART Grant) applicable coursework for which the prior to dropping to a less than full-time before fall starts, but does before spring, student initially received a grade of enrollment status. Specifically, the § 691.75(b)(2) and (3) indicates that the incomplete. commenter wanted to know whether the student, if otherwise eligible, can If information about a student’s institution must remove the funds from receive an ACG or National SMART transfer of credit from another the student’s account, or prorate the Grant for the entire fall term if the institution comes to the institution’s funds as an institution would be institution determines that the student attention late in, or after, a term, the required to do with Federal Pell Grant has the required minimum 3.0 GPA institution may have already made a funds. before the end of the fall term. On the determination of eligibility that did not other hand, if the institution does not consider that information. If that Discussion: According to § 691.80(b), make the determination that the student information affects a student’s GPA or when there is a change in the student’s has at least a 3.0 GPA until after the end academic year level and thus could enrollment status, the institution’s of the fall term, then, under § 691.75(c), affect the student’s eligibility for an policy for recalculating awards takes the student cannot receive an ACG or ACG or National SMART Grant, the effect. For example, an institution’s National SMART Grant for the fall term. institution must factor it into its policy may establish a recalculation With respect to an eligible student determination of the student’s eligibility date at the end of its drop-add period who is receiving a National SMART and take appropriate action. (also known as a census date) by which Grant, but then changes to an ineligible Regarding erroneous determinations the student’s enrollment status for the major (and does not change back to an by an institution that, for a particular term will be finalized. The enrollment eligible major), the institution may not payment period, an otherwise eligible status is, thus, defined as the number of make any additional National SMART student did not have the required GPA credit hours the student is enrolled in Grant payments (for the payment period or had not declared an eligible major, if at the census date. Under such a policy, in which the change of majors took such a student in fact had satisfied those if a student was enrolled full-time at the place or for future payment periods) to requirements during that payment beginning of the term but, by the census the student once the student has period, that student would be eligible date, the student had dropped to half- changed to the ineligible major, for a payment of the applicable grant time enrollment status, the institution regardless of whether that change is regardless of whether the institution must use the half-time enrollment status made at the end of a payment period or discovered its mistake before or after the to determine eligibility for the ACG or during the payment period. However, completion of that payment period. National SMART Grant. Because the any payments that were made to an Section 691.78 Method of HEA requires full-time enrollment, the eligible student before he or she Disbursement—By Check or Credit to a student in this example would not be changed to an ineligible major are Student’s Account eligible for the ACG or National SMART legitimate payments and do not have to Grant for that term, and any ACG or be repaid. Comments: Several commenters noted National SMART Grant funds disbursed When a student has a 3.0 GPA when that § 691.78(b), which addresses the for that term would have to be repaid by the fall term begins, but that GPA at that return of funds paid to a student who the student. On the other hand, if the time does not include grades from the leaves the institution before the first day student dropped below full-time previous term, the institution may not of classes, seems duplicative of § 668.21. enrollment after the recalculation date, have all of the information it needs to In addition, the commenters also found his or her ACG or National SMART determine whether the student is references to award year in § 691.78(c) Grant award would be based upon full- eligible for an ACG or National SMART confusing, as ACG and National SMART time enrollment. Grant. For the ACG for the second Grant awards are determined on an academic year of the student’s eligible academic year basis. Situations in which information is program, the HEA requires that the Discussion: The Secretary agrees that received after a determination of student have at least a 3.0 GPA for the § 691.78(b) is redundant. The use of the eligibility has been made are governed first academic year of his or her eligible term ‘‘award year’’ in § 691.78(c) is by § 668.16(f), which states that an program. For the National SMART appropriate even though a particular institution must identify and resolve Grant, the requirement is that the student’s eligibility is determined based discrepancies that arise from the student have at least a 3.0 GPA for his on the student’s completion of an institution’s receipt of any information or her courses in the eligible program up academic year not an award year. Funds that has bearing on a student’s eligibility through the most recently completed for the ACG and National SMART Grant for funds under the title IV, HEA payment period (term in this example). are appropriated for an award year, programs. If that information affects the For either program, if there are courses which is separate and distinct from the amounts and or types of title IV aid the that have been taken in the previous eligibility determination. The language student is receiving or may be eligible term that are part of the coursework for in § 691.78(c) addresses what actions to receive, the institution must take which the student must have at least a must occur when delivering funds to a appropriate actions. 3.0 GPA and grades for those courses are student during an award year. Changes: None.
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Section 691.83 Submission of Reports referred to as ‘‘economically SMART Grant Program, the definition of Comments: Several commenters asked significant’’); (2) creating serious qualifying fields of study. In both these the Secretary to clarify whether the inconsistency or otherwise interfering cases, the Secretary has regulated to Secretary intends to include the with an action taken or planned by reflect clear congressional intent. another agency; (3) materially altering academic year level of a grant in the Benefits payment data submitted by institutions. the budgetary impacts of entitlement The commenters noted that, without grants, user fees, or loan programs or the By facilitating the implementation of this information in the National Student rights and obligations of recipients these new programs, these final Loan Data System (NSLDS), an thereof; or (4) raising novel legal or regulations will support the provision of institution would not know whether a policy issues arising out of legal over $4 billion in need-based student transfer student had already received mandates, the President’s priorities, or aid over the next five years. The ACG the principles set forth in the Executive grant funds at a given award level, as Program will benefit society by Order. the grant level will not always be providing an incentive for students to Pursuant to the terms of the Executive complete a rigorous secondary school apparent from the award (for example, Order, it has been determined that this program of study, which research if the grant amount has been reduced to regulatory action will have an annual indicates increases the likelihood of avoid an overaward). effect on the economy of more than Discussion: In addition to data similar successful completion of postsecondary $100 million. Therefore, this action is to what is submitted to the Secretary education. The National SMART Grant ‘‘economically significant’’ and subject through the Common Origination and Program will encourage students to to OMB review under section 3(f)(4) of Disbursement (COD) system, major in technical fields or critical Executive Order 12866. The Secretary institutions will also provide the foreign languages. In the case of accordingly has assessed the potential academic year for the award for both the technical fields, these majors will costs and benefits of this regulatory ACG and National SMART Grant benefit both national and individual action and has determined that the programs. This information will be competitiveness, increasing the nation’s benefits justify the costs. available to institution through the economic security. With respect to NSLDS, which will reflect the academic Need for Federal Regulatory Action foreign languages, increases in the year completed by the student. As noted above, these final number of fluent speakers of Arabic, Institutions will also provide regulations are needed to implement Farsi, Uzbek, and other critical information on the rigorous secondary two programs created in the HERA. The languages would broaden understanding school program of study that was used ACG program provides need-based of important cultures and contribute to confirm eligibility for an ACG and the grants to encourage students to significantly to ongoing efforts to student’s academic major (using CIP complete rigorous secondary school combat international terrorism. In codes) for a National SMART Grant. programs of study. The National addition, awards under both programs Specifications for this COD reporting SMART Grant Program provides need- serve to reduce a student’s net cost of has been posted to the Department’s based grants to encourage students to education. Research indicates that Information for Financial Aid major in certain scientific and technical reduction in a student’s cost of Professionals Web site. fields or foreign languages deemed vital education correlates with increased Changes: None. to national security. Section student persistence and degree Executive Order 12866 401A(c)(3)(B)(ii) and (3)(C)(ii) of the attainment. Data consistently show that HEA specifically requires the Secretary postsecondary degree holders have Regulatory Impact Analysis of Education to issue regulations substantially higher lifetime earnings Under Executive Order 12866, the implementing these programs. than high school graduates. Secretary must determine whether this The Secretary had limited discretion Costs regulatory action is ‘‘significant’’ and in implementing these grant programs; therefore subject to the requirements of the number of recipients and aid These programs are supported with the Executive Order and subject to awarded is largely driven by statutory $4.5 billion in mandatory review by the OMB. Under section 3(f) eligibility requirements such as that appropriations: $790 million for fiscal of Executive Order 12866, the order students be eligible to receive a Federal year 2006, $850 million for fiscal year defines a ‘‘significant regulatory action’’ Pell Grant, be United States citizens, 2007, $920 million for fiscal year 2008, as an action that is likely to result in a attend two-or four-year degree-granting $960 million for 2009, and $1,010 rule (1) having an annual effect on the institutions on a full-time basis, and, in million for 2010. Funds not expended in economy of $100 million or more, or some cases, maintain a 3.0 GPA. The one year may be carried forward to adversely and materially affecting a Secretary has exercised discretion in the support awards in the subsequent year. sector of the economy, productivity, areas of program eligibility relating to If the estimated number of recipients competition, jobs, the environment, the definition of a rigorous secondary exceeds the available funding for a public health or safety, or State, local or school program of study in the case of given fiscal year, award levels would be tribal governments or communities (also the ACG Program and, for the National ratably reduced.
TABLE 1.—ESTIMATED PROGRAM PARTICIPATION
Total amount Estimated Estimated avg. of aid awarded number of award (expected) recipients (in millions)
Award Year 2006–2007: AC Grants—1st year ...... 310,000 $657 $200 AC Grants—2nd year ...... 110,000 1,245 140 National SMART Grants—3rd year ...... 40,000 3,718 150
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TABLE 1.—ESTIMATED PROGRAM PARTICIPATION—Continued
Total amount Estimated Estimated avg. of aid awarded number of award (expected) recipients (in millions)
National SMART Grants—4th year ...... 40,000 3,875 160 Award Year 2007–2008: AC Grants—1st year ...... 330,000 682 230 AC Grants—2nd year ...... 130,000 1,255 160 National SMART Grants— 3rd year ...... 40,000 3,718 150 National SMART Grants—4th year ...... 40,000 3,875 160
The average awards displayed in Assumptions, Limitations, and Data More specifically, in considering the Table 1 are less than the statutory Sources definition of a rigorous secondary maximum awards due to the cost of Because these final regulations largely school program of study, the Secretary attendance limit on ACG and National restate statutory requirements that considered a variety of combinations of SMART Grant awards. In addition, would be self-implementing in the coursework and other possible average awards also reflect students absence of regulatory action, cost measures. For example, at the time of who are eligible for an ACG or National estimates provided above reflect a the release of the President’s fiscal year SMART Grant for less than the full prestatutory baseline in which the ACG 2007 budget, preliminary estimates award year. Figures in Table 1 may not and National SMART Grant programs assumed a rigorous program of study add due to rounding. do not exist. Given the limited data would consist of four English, three social science, three science, three Because these programs are title IV, available, estimates for 2007–2008 do not assume program benefits will mathematics, and two foreign language HEA programs and eligibility for these courses. Under this scenario, an programs is linked to Federal Pell Grant induce increased student participation. Costs have been quantified for only two estimated 439,000 students would eligibility, participating institutions receive $400 million in ACG awards in must already meet Federal student aid years because the Secretary plans to revise these final regulations through 2006–2007—compared with $340 institutional eligibility requirements. In negotiated rule-making, after which million to 420,000 students under these addition, the delivery system and many more comprehensive cost analyses for final regulations. In subsequently program operational requirements for subsequent years will be developed. considering the recognition of rigorous the new programs are patterned after In developing these estimates, data secondary school programs, the those that institutions are already using from the 2004 National Postsecondary Secretary determined it would be more for Federal Pell Grants. Accordingly, Student Aid Survey was used to derive appropriate to include as one option institutions wishing to participate in the the percentage of students meeting secondary school programs of study new programs have already absorbed initial eligibility requirements for ACG with specific coursework requirements, most of the administrative costs related and National SMART Grant awards, such as, for mathematics, algebra I and to implementing these final regulations. including enrollment status, Federal a higher level course such as algebra II, Marginal costs over this baseline are Pell Grant eligibility, citizenship, geometry, or data analysis and statistics, primarily related to initial, and ongoing academic major, and GPA. The 1994 and for science, at least two years with eligibility determinations are minimal. National Education Longitudinal Study, one year each of biology, chemistry or Most data needed to make these 1996 Beginning Postsecondary Student physics, as well as an advanced or determinations, such as student Survey, and 2000 National Assessment honors program. In addition, the Secretary included students who citizenship, full-time status, major, and of Educational Progress High School complete secondary school programs GPA, are generally already available to Transcript Study were used to derive and receive specified scores on the institutions. the percentage of students otherwise eligible for an ACG who had Advanced Placement or International In response to the public comment on successfully completed a rigorous Baccalaureate examinations. The latter the interim final regulations, the secondary school program of study. All provisions offer additional flexibility to Department has made changes in these these studies were conducted by the individual students attending private or final regulations. The only significant National Center for Education Statistics. home schools. change with economic impact is to This approach is consistent with the permit students to receive an ACG or Regulatory Alternatives Considered programs’ statutory purpose of creating National SMART Grant for a payment In defining eligibility requirements, incentives for certain student behaviors. period during which they are not particularly those related to rigorous To achieve this purpose, the grant level receiving a Federal Pell Grant. This secondary school programs of study, must be large enough to provide a change will enable 32,000 more these final regulations strike a balance meaningful incentive, yet at the same students to receive grants in 2006. It between complete State discretion, time, program flexibility must be will also increase the cost of the which could create confusion and sufficient to allow States and programs by $27 million in 2006 and by regional inequalities and result in overly participating institution to recognize $145 million between 2006–2010. The generous criteria that dramatically broad differences in secondary school Secretary requested comments on the reduce award levels, and an overly and higher education academic regulatory impact analysis in the prescriptive national determination that structures. interim final regulations, but received would significantly alter the traditional Elsewhere in this SUPPLEMENTARY none. State role in determining secondary INFORMATION section we identify and school curricula. explain burdens specifically associated
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with information collection Electronic Access to This Document The revisions read as follows: requirements. See the heading You may view this document, as well Paperwork Reduction Act of 1995. § 668.52 Definitions. as all other Department of Education * * * * * Accounting Statement documents published in the Federal Institutional student information Register, in text or Adobe Portable record as defined in 34 CFR 690.2 and As required by OMB Circular A–4 Document Format (PDF) on the Internet (available at http:// 691.2 for purposes of the Federal Pell at the following site: http://www.ed.gov/ Grant, ACG, National SMART Grant, www.Whitehouse.gov/omb/Circulars/ news/Fedregister. a004/a-4.pdf), in Table 2 below, we Federal Perkins Loan, FWS, FSEOG, To use PDF you must have Adobe Federal Stafford Loan, and William D. have prepared an accounting statement Acrobat Reader, which is available free showing the classification of the Ford Federal Direct Loan programs. at this site. If you have questions about Student aid application means an expenditures associated with the using PDF, call the U.S. Government application approved by the Secretary provisions of these final regulations. Printing Office (GPO), toll free, at 1– and submitted by a person to have his This table provides our best estimate of 888–293–6498; or in the Washington, or her EFC determined under the the increase in Federal student aid DC, area at (202) 512–1530. Federal Pell Grant, ACG, National payments as a result of these final Note: The official version of this document SMART Grant, Federal Perkins Loan, regulations. All expenditures are is the document published in the Federal FWS, FSEOG, Federal Stafford Loan, or classified as transfers to postsecondary Register. Free Internet access to the official William D. Ford Federal Direct Loan students. edition of the Federal Register and the Code programs. of Federal Regulations is available on GPO TABLE 2.—ACCOUNTING STATEMENT: Access at: http://www.gpoaccess.gov/nara/ * * * * * CLASSIFICATION OF ESTIMATED EX- index.html. § 668.54 [Amended] PENDITURES (Catalog of Federal Domestic Assistance I 5. Section 668.54 is amended in [in millions] Numbers: 84.375 Academic Competitiveness Grants; 84.376 National SMART Grants) paragraph (a)(2)(i) by adding the words ‘‘ACG, National SMART Grant,’’ Category Transfers List of Subjects in 34 CFR Parts 668, immediately after the words ‘‘Federal 690, and 691 Annualized Monetized $694. Pell Grant,’’. Transfers. Colleges and universities, Elementary § 668.55 [Amended] From Whom To Federal Government and secondary education, Grant Whom? To Postsecondary programs—education, Student aid. I 6. Section 668.55 is amended by: Students. I A. In the introductory text to Dated: October 25, 2006. paragraph (c), adding the words ‘‘ACG, Paperwork Reduction Act of 1995 Margaret Spellings, National SMART Grant,’’ immediately Secretary of Education. after the words ‘‘Federal Pell Grant,’’. We received no comments on the I For the reasons discussed in the I B. In paragraph (c)(1), adding the Paperwork Reduction Act portion of the preamble, the Secretary amends parts words ‘‘, ACG, National SMART Grant,’’ interim final rule. 668, 690, and 691 of title 34 of the Code immediately after the words ‘‘Federal OMB has approved the information of Federal Regulations as follows: Pell Grant’’. collection requests identified in the I C. In paragraph (c)(2), adding the interim final regulations and has PART 668—STUDENT ASSISTANCE words ‘‘, ACG, National SMART Grant,’’ assigned the following numbers to the GENERAL PROVISIONS immediately after the words ‘‘Federal collection of information in these final Pell Grant’’; and by removing the I 1. The authority citation for part 668 regulations: 1845–0001, 1845–0039, punctuation ‘‘,’’ after the word continues to read as follows: 1845–0078. ‘‘campus-based’’. Authority: 20 U.S.C. 1001, 1002, 1003, Intergovernmental Review 1085, 1088, 1091, 1092, 1094, 1099c, and § 668.58 [Amended] 1099c–1, unless otherwise noted. I This program is subject to Executive 7. Section 668.58 is amended by: I Order 12372 and the regulations in 34 § 668.2 [Amended] A. In paragraph (a)(1)(i), adding the CFR part 79. One of the objectives of the words ‘‘, ACG, National SMART Grant,’’ I 2. Section 668.2 is amended in Executive order is to foster an immediately after the words ‘‘Federal paragraph (b) in the definition of ‘‘Valid intergovernmental partnership and a Pell Grant’’. institutional student information I strengthened federalism. The Executive B. In paragraph (a)(2)(i), adding the report’’ by removing the word ‘‘report’’ order relies on processes developed by words ‘‘ACG, National SMART Grant, and adding in its place the word State and local governments for or’’ immediately after the words ‘‘record’’ each place it appears. coordination and review of proposed ‘‘Federal Pell Grant,’’. I C. In paragraph (a)(2)(ii)(A), adding Federal financial assistance. § 668.51 [Amended] the words ‘‘ACG, National SMART This document provides early I 3. Section 668.51 is amended in Grant,’’ immediately after the words notification of our specific plans and paragraph (a) by adding the words ‘‘Federal Pell Grant,’’. actions for this program. ‘‘ACG, National SMART Grant,’’ § 668.59 [Amended] Assessment of Educational Impact immediately after the words ‘‘Federal Pell Grant,’’. I 8. Section 668.59 is amended by: Based on our own review, we have I 4. Section 668.52 is amended by: I A. In the introductory text to determined that these final regulations I A. Revising the definition of paragraph (a), removing the words do not require transmission of ‘‘Institutional student information ‘‘Federal Pell Grant Program’’ and information that any other agency or report’’. adding, in their place, the words authority of the United States gathers or I B. Revising the definition of ‘‘Student ‘‘Federal Pell Grant, ACG, and National makes available. aid application.’’ SMART Grant programs’’.
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I B. In paragraph (a)(1)(i), adding the PART 690—FEDERAL PELL GRANT (b) * * * words ‘‘, ACG, or National SMART PROGRAM (1) * * * Grant’’ immediately after the words (ii) * * * I 11. The authority citation for part 690 ‘‘Federal Pell Grant’’. (B) Has not previously been enrolled continues to read as follows: I C. In paragraph (a)(2) introductory as a regular student in an eligible text, adding the words ‘‘, ACG, or Authority: 20 U.S.C. 1070a, unless program while enrolled in high school; otherwise noted. National SMART Grant’’ immediately * * * * * after the words ‘‘Federal Pell Grant’’. § 690.78 [Amended] I 16. Section 691.16 is amended in I D. In the introductory text to I 12. Section 690.78 is amended by paragraph (d)(4) by removing the words paragraph (b), removing the words removing paragraph (b) and ‘‘in the’’ and adding, in their place, the ‘‘Federal Pell Grant Program’’ and redesignating paragraph (c) as paragraph words ‘‘from an’’. adding, in their place, the words (b). ‘‘Federal Pell Grant, ACG, and National § 691.62 [Amended] SMART Grant programs’’. PART 691—ACADEMIC I 17. Section 691.62 is amended in I E. In paragraph (b)(1), adding the COMPETITIVENESS GRANT (ACG) paragraph (c) by removing the words ‘‘, ACG, or National SMART AND NATIONAL SCIENCE AND regulatory citations ‘‘, 682.200(b), and Grant’’ immediately after the words MATHEMATICS ACCESS TO RETAIN 685.102(b)’’. ‘‘Federal Pell Grant’’. TALENT GRANT (NATIONAL SMART GRANT) PROGRAMS § 691.65 [Amended] I F. In paragraph (b)(2)(i)(B), adding the words ‘‘, ACG, or National SMART I 13. The authority citation for part 691 I 18. Section 691.65 is amended in Grant’’ immediately after the words continues to read as follows: paragraph (a)(2) by removing the words ‘‘Federal Pell Grant’’. ‘‘for the same payment period’’ and Authority: 20 U.S.C. 1070a–1, unless I G. In paragraph (b)(2)(ii)(A), adding otherwise noted. adding, in their place, the words ‘‘in the the words ‘‘, ACG, or National SMART same award year’’. I 14. Section 691.6 is amended by Grant’’ immediately after the words § 691.75 [Amended] ‘‘Federal Pell Grant’’. revising paragraphs (a) and (b) to read as follows: I 19. Section 691.75 is amended by: § 668.60 [Amended] § 691.6 Duration of student eligibility— I A. In paragraph (b)(3), removing the I 9. Section 668.60 is amended by: undergraduate course of study. words ‘‘is no longer pursuing’’ and adding, in their place, the words ‘‘is not I A. In the introductory text to (a) A student is eligible to receive up pursuing’’. paragraph (c), removing the words to one ACG Scheduled Award during I ‘‘Federal Pell Grant Program’’ and each of the student’s first and second B. In paragraph (c), removing the adding, in their place, the words academic years of enrollment over the words ‘‘is no longer pursuing’’ and ‘‘Federal Pell Grant, ACG, and National course of the student’s undergraduate adding, in their place, the words ‘‘is not SMART Grant programs’’. education in all eligible programs as pursuing’’. defined in § 691.2(d). I § 691.78 [Amended] B. In paragraph (c)(1), adding the (b) A student is eligible to receive up words ‘‘and 691.61’’ immediately after to one National SMART Grant I 20. Section 691.78 is amended by the regulatory citation ‘‘690.61’’. Scheduled Award during each of the removing paragraph (b) and I C. In paragraph (c)(2)(i), adding the student’s third and fourth academic redesignating paragraph (c) as paragraph words ‘‘, ACG, or National SMART years of enrollment over the course of (b). Grant’’ immediately after the words the student’s undergraduate education I 21. Section 691.80(a) is revised to read ‘‘Federal Pell Grant’’. in all eligible programs as defined in as follows: I D. In paragraph (c)(2)(ii), adding the § 691.2(d). words ‘‘, ACG, or National SMART * * * * * § 691.80 Redetermination of eligibility for a Grant’’ immediately after the words I 15. Section 691.15 is amended by: grant award. ‘‘Federal Pell Grant’’. I A. In paragraph (a)(2), removing the (a) Change in receipt of Federal Pell I E. In paragraph (d) by adding the words ‘‘for the same payment period’’ Grant. If, after the beginning of an award words ‘‘ACG, or National SMART Grant and adding, in their place, the words year, a student otherwise eligible for an program assistance,’’ immediately after ‘‘in the same award year’’. ACG or a National SMART Grant begins the words ‘‘Federal Pell Grant,’’. I B. Revising paragraph (b)(1)(ii)(B). or ceases to receive a Federal Pell Grant I C. In paragraph (b)(1)(iii)(C), removing in that award year, the institution must § 668.61 [Amended] the words ‘‘at least’’. redetermine the student’s eligibility for I D. In paragraph (c)(3), removing the I 10. Section 668.61 is amended in an ACG or a National SMART Grant in words ‘‘at least’’. that award year. paragraph (a)(2)(ii)(B) by adding the The revision reads as follows: words ‘‘ACG, National SMART Grant,’’ * * * * * immediately after the words ‘‘Federal § 691.15 Eligibility to receive a grant. [FR Doc. E6–18197 Filed 10–31–06; 8:45 am] Pell Grant,’’. * * * * * BILLING CODE 4000–01–P
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Part V
Department of Housing and Urban Development 24 CFR Part 291 Disposition of HUD-Acquired Single Family Property; Good Neighbor Next Door Sales Program; Final Rule
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DEPARTMENT OF HOUSING AND TND Sales Program on December 7, III. This Final Rule; Significant URBAN DEVELOPMENT 1999, which encourages eligible Changes to the September 8, 2005, teachers to purchase HUD-acquired Proposed Rule 24 CFR Part 291 homes located in HUD-designated This final rule follows publication of [Docket No. FR–4712–F–03] revitalization areas at a 50 percent the September 8, 2005, proposed rule, discount from list prices. RIN 2502–AH72 and takes into consideration the public In June 2004, HUD completed an comments received on the proposed Disposition of HUD-Acquired Single evaluation of the success of the OND rule. The regulations for the GNND Family Property; Good Neighbor Next and TND Sales Programs. The Sales Program would be codified at 24 Door Sales Program evaluation supported the view that an CFR part 291, subpart F, which currently contains the regulations for AGENCY: Office of the Assistant influx of police officers as homeowners results in a decrease in crime in a target the OND Sales Program. After careful Secretary for Housing—Federal Housing review of the public comments, HUD Commissioner, HUD. neighborhood. HUD’s evaluation of the OND/TND Sales Programs is available has made the following changes to the ACTION: Final rule. proposed rule: for download at www.huduser.org. 1. Financing of 203(k) rehabilitation SUMMARY: This final rule establishes costs. The final rule has been revised to regulations for HUD’s new Good II. The September 8, 2005, Proposed provide for the inclusion of Neighbor Next Door (GNND) Sales Rule and Federal Register Notice rehabilitation costs in the mortgage used Program. The requirements for the new On September 8, 2005, HUD to purchase the home, where such program are closely modeled on those published a proposed rule to establish purchase is being financed with an for HUD’s Officer Next Door (OND) and regulations for a new GNND Sales FHA-insured 203(k) mortgage. Teacher Next Door (TND) Sales Program to replace and build upon the 2. Providing for two backup bids in Programs. The GNND Sales Program success of the OND and TND Sales the event that the original purchaser replaces and builds upon the success of fails to reach closing. The final rule has these two existing sales programs. The Programs (70 FR 53479). While many of been revised to provide for two backup purpose of the GNND Sales Program is the requirements in the GNND Sales purchasers, if sufficient bids are to improve the quality of life in Program are similar, HUD proposed received, as alternatives should the first distressed urban communities by various modifications and purchaser fail to complete the home encouraging law enforcement officers, improvements to the OND and TND purchase. teachers, and firefighters/emergency requirements. The objective of the GNND program is to improve the quality 3. Clarification of eligible teachers medical technicians, whose daily under the GNND Sales Program. The responsibilities represent a nexus to the of life in distressed urban communities by encouraging law enforcement final rule has been revised to clarify that needs of the community, to purchase only full-time teachers employed at officers, teachers, and firefighters/ and live in homes in these communities. state-accredited public and private emergency medical technicians, whose This final rule follows publication of a schools serving students from the area September 8, 2005, proposed rule and daily responsibilities reflect a high level where the home is located qualify as takes into consideration the public of public service commitment and eligible participants under the GNND comments received on the proposed represent a nexus to the needs of the Sales Program. Other persons employed rule. community, to purchase and live in by an accredited public or private DATES: Effective Date: December 1, 2006. homes in these communities. An school are not eligible to participate in FOR FURTHER INFORMATION CONTACT: overview of the GNND Sales Program the GNND Sales Program. Laurie A. Maggiano, Acting Director, and HUD’s proposed regulatory changes 4. Properties Available for Sale under Office of Single Family Asset can be found in the preamble to the the GNND Sales Program. The final rule Management, Department of Housing September 8, 2005, proposed rule. clarifies that the properties available for and Urban Development, 451 Seventh Also on September 8, 2005, in sale under the GNND Sales Program will Street, SW., Room 9172, Washington, addition to the publication of the be the same types of properties eligible DC 20410–8000; telephone (202) 708– proposed rule, HUD also published a for purchase under the OND and TND 1672 (this is not a toll-free number). notice announcing the eligibility of programs. Specifically, the final rule Hearing- or speech-impaired individuals firefighters and emergency medical clarifies that occupied properties, may access this number through TTY by technicians to immediately participate properties located in Asset Control Areas, and properties that HUD calling the toll-free Federal Information in the OND Sales Program (70 FR Relay Service at (800) 877–8339. determines will be sold through an 53488). This expansion of the OND alternative sales method will not be SUPPLEMENTARY INFORMATION: Sales Program was designed to help made available for purchase under the I. Background more firefighters and emergency GNND Sales Program. The new A vital part of HUD’s mission is to medical technicians become regulatory language does not revise promote homeownership and the homeowners and to advance the goals of existing policies, but rather codifies revitalization of cities. In support of the program to accelerate the existing practices of the OND and TND these goals, HUD permanently revitalization of America’s cities by programs. Regulatory codification of the established the OND Sales Program on promoting the integration of dedicated types of properties made available for July 2, 1999 (64 FR 36210). The OND role models and mentors into the sale will help provide the public with Sales Program enables full-time law community. The September 8, 2005, greater understanding and clarity of the enforcement officers to purchase HUD- notice authorized firefighters and process followed by HUD in the acquired homes located in revitalization emergency medical technicians to administration of the GNND Sales areas at a 50 percent discount from list participate under, and be subject to, the Program. prices. The success of the OND Sales regulations for the OND Sales Program. 5. Clarification of the terms ‘‘closing Program led to the establishment of the costs,’’ ‘‘selling broker commissions,’’
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and ‘‘downpayment.’’ This final rule will HUD pay selling broker medical technicians. The commenters continues to provide that HUD will not commissions. The addition of this wrote that the rule would make buying pay a buyer’s closing costs on the phrase clarifies that the purchaser is a home for GNND Sales Program purchase of a property through the wholly responsible for paying closing participants feasible by significantly GNND Sales Program. Further, HUD has costs and selling broker commissions in reducing the cost of housing. revised the rule to specify that in no a transaction under this program. The HUD Response. HUD appreciates the event will HUD pay selling broker final rule continues to provide that in support expressed by the commenters commissions. The addition of this no event will HUD pay a buyer’s closing for the GNND Sales Program. The final phrase clarifies that the purchaser is costs on the purchase of a property rule will benefit participating law wholly responsible for paying closing through the GNND Sales Program. enforcement officers, teachers, costs and selling broker commissions in However, a purchaser using a mortgage firefighters, and emergency medical a transaction under this program. The insured by the Federal Housing technicians, as well as the communities closing costs are expenses borne by the Administration (FHA) to finance the that they serve. The regulatory purchaser to complete the sale. The purchase of a home through the GNND requirements established by this final selling broker’s commission is one Sales Program may include reasonable rule will help to ensure that the component of the closing costs owed by and customary closing costs within the inventory of available homes is the purchaser. amount borrowed with the FHA-insured distributed to most effectively realize The revision also serves to clarify that mortgage. The revision also serves to the goals of the program. closing costs and selling broker clarify that closing costs and selling Comment: As formulated, the success commissions are not properly broker commissions are not properly of the GNND Sales Program is in considered to be part of a required considered to be part of a required jeopardy because the universe of eligible downpayment. The downpayment is a downpayment. The downpayment is a participants has been expanded while financial outlay made by the purchaser financial outlay made by the purchaser the number of properties available for to acquire equity in the property and to acquire equity in the property and purchase has been reduced. One does not include closing or other costs does not include closing or other costs commenter objected to the regulatory that do not represent an investment in that do not represent an investment in cap on sales of HUD-acquired homes equity. equity. under the GNND Sales Program to no Comment: The requirement that greater than 5 percent of the number of IV. Discussion of Public Comments purchasers submit bids on GNND homes ‘‘Part A’’ mortgage insurance Received on the September 8, 2005, through a participating real estate broker conveyance claims paid by HUD in the Proposed Rule unnecessarily imposes the additional immediately preceding fiscal year. The The public comment period on the cost of a commission and should be commenter wrote that the cap would proposed rule closed on November 7, eliminated. One commenter wrote that force law enforcement officers, teachers, 2005. HUD received 16 public since the regulations do not specify that and firefighters/emergency medical comments in response to the proposed brokers must waive their normal technicians to compete against each rule. Comments were received from a commission, participants would incur other. The commenter wrote that this realtor’s association, a state home an additional cost they may not be able will make it much more difficult to program, a mortgage corporation, a law to afford. The commenter wrote that achieve the desired goal of improving enforcement labor organization, a non- brokers are unnecessary because HUD is the quality of life in distressed urban profit organization, teachers, a governing the disposition of these communities. The commenter also firefighter, realtors, and individual homes. The commenter also wrote that wrote that relying on a lottery system to citizens. This section of the preamble this requirement could result in a award properties on which there are presents a summary of the significant special pool of brokers that would multiple bids shows an indifference to issues raised by the public commenters unfairly funnel GNND business to this the success of the OND Sales Program. on the September 8, 2005, proposed select group. The commenter recommended that the rule, and HUD’s responses to those HUD Response. HUD has not revised OND Sales Program remain a program issues. the rule in response to this comment. separate from the GNND Sales Program. Comment: A statement clarifying how The use of brokers benefits participants HUD Response. HUD has not revised real estate broker commissions are to be because they have specialized the rule in response to this comment. applied at closing to the purchase price knowledge and can facilitate the home HUD continues to believe that is needed so that closing procedures buying process. HUD disagrees that the expanding eligibility to include will be uniformly interpreted and requirement would result in the firefighters and emergency medical implemented. Two commenters wrote establishment of a select group of technicians will bring justifiable added that given the number of different brokers. Any real estate broker who has benefit to the communities to be served players involved in the disposition of agreed to comply with HUD by the GNND Sales Program. Neither the the HUD single-family properties, requirements may participate in the increased number of eligible written procedures for contracts and GNND Sales Program. Due to continued participants nor the cap on the volume settlement statements are necessary to competition among brokers, the of properties available will result in a avoid confusion. The commenters asked commission charged by brokers will diminished supply of homes available for clarification as to how commissions have to be responsive to purchasers’ for sale through the program. The and closing costs apply at closing to the ability and willingness to pay, and be purpose of the cap is to provide control purchase price, and specifically whether commensurate with the services over properties in the event there is an the seller or the buyer (OND/TND) is provided. unanticipated surge in the number of responsible for paying the broker’s Comment: Support for GNND Sales foreclosures in revitalization areas, commission and closing costs. Program. Several commenters wrote in which in turn would result in a surge in HUD Response. HUD is revising the support of the GNND Sales Program. In payments of FHA insurance. HUD does rule in response to these comments. particular, the commenters expressed not anticipate the cap as having any Specifically, HUD has revised strong support for expanding eligibility practical effect on the supply of homes § 291.545(c) to specify that in no event to include firefighters and emergency available because the volume of
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recorded sales in recent years has employed firefighters and emergency rehabilitation costs where the purchase consistently been substantially below medical technicians would create of the home is being financed with an the proposed cap. Additionally, the rule ambiguity in assessing an individual’s FHA-insured 203(k) mortgage. provides HUD with the authority to eligibility to participate. This broader, HUD Response. HUD agrees that the adjust the percentage of the cap for any more ambiguous approach would also amount of financing available to the fiscal year should adjustment be result in a costly administrative burden participant should depend on the type warranted. for HUD to determine eligibility and of FHA-insured mortgage being utilized. Comment: The revision to the increase the risk of awarding properties Participants utilizing an FHA-insured definition of law enforcement officer to ineligible individuals. To assure that mortgage may finance the discounted would exclude federal law enforcement the purposes of the GNND Sales sales price plus reasonable closing costs. and other officers, thereby reducing the Program can be fulfilled in a cost- Additionally, rehabilitation expenses number of law enforcement officers who effective and efficient manner, HUD has may be incorporated into the FHA- are eligible to participate in the not revised the rule in response to this insured mortgage if the purchase of the program. One commenter wrote that the comment. home is being financed with an FHA- narrowing of the definition of ‘‘law Comment: The eligibility insured 203(k) mortgage. The Section enforcement officer’’ would exclude requirements of not having previously 203(k) program is HUD’s primary federal law enforcement officers owned any residential real property for program for the rehabilitation and repair employed in a law enforcement capacity one year prior to the date of submitting of single family properties. As such, it by governmental agencies that are not a bid and not having previously is an important tool for community and separate, specific law enforcement purchased a home under the GNND neighborhood revitalization and for agencies. The commenter recommended Sales Program should not apply to law expanding homeownership revising the rule so that such federal law enforcement officers. The commenter opportunities, which HUD agrees enforcement officers can participate. wrote that this new restriction fails to should be available to GNND Sales The commenter also wrote that the consider that law enforcement officers Program participants. Accordingly, HUD definition should continue to include choosing to participate in the program has modified § 291.545(b) to explicitly law enforcement officers employed by may move from their current home to a provide for the inclusion of public and private universities and distressed community to become more rehabilitation costs financed with an colleges. The commenter, relying on the involved in the community they serve, FHA-insured 203(k) loan. evaluation report of the OND Sales or may participate or have participated Comment: Creating a distinction as to Program, wrote that it is the presence of in the OND Sales Program and then closing costs between conventional and officers in distressed communities that transfer or have since been transferred FHA-insured mortgages unfairly has a positive impact and not whether to another jurisdiction that has GNND penalizes participants who choose not or not they have authority to make properties available. to use an FHA-insured mortgage. One arrests. HUD Response. HUD has not revised commenter wrote that participants HUD Response. HUD has not revised the rule in response to this comment. choosing conventional mortgages will the rule in response to this comment. The eligibility requirements referred to have to pay closing costs out-of-pocket One of the purposes of the OND Sales by the commenter support increasing while those with an FHA-insured Program was to revitalize distressed the overall number of participants who mortgage may be able to finance communities by deterring the can benefit from the program while reasonable and customary closing costs. commission of crimes with the presence avoiding opportunistic behavior by HUD Response. HUD is not altering the of law enforcement officers in these repeat participants. Further, in the past, final rule in response to this comment. areas. The GNND Sales Program allowing current homeowners to submit The scope of HUD’s regulatory continues to focus on traditional law bids has been a source of problems in authority extends to FHA-insured enforcement officers with general arrest reaching closing with those purchasers. mortgages. HUD is empowered to set the authority, because their work and This new requirement better aligns with terms and conditions of FHA-insured presence in the community most closely the Department’s interest in increasing mortgages. Since conventional relates to this policy. the number of homeowners and opening mortgages are not subjected to HUD’s Comment: First responders employed up homeownership to new families. regulatory authority, such mortgages by nongovernmental entities should be Comment: The amount a purchaser pose additional risk. Regardless of the eligible for the GNND Program. One can borrow to finance the purchase of a type of financing used by a purchaser, commenter wrote that since first home using an FHA-insured mortgage HUD will not pay any closing costs. responders have to be employed by a should depend on the type of FHA- With regard to the downpayment, governmental agency in order to be insured mortgage issued. Two purchasers using an FHA-insured eligible to participate in the GNND Sales commenters wrote that § 291.545(b) of mortgage may make a downpayment of Program, responders providing the same the rule, which establishes the $100. services through a private entity are maximum amount of an FHA-insured Comment: Forfeiture of an earnest being excluded unfairly. The mortgage used to purchase a GNND money deposit upon the failure of the commenter wrote that all emergency home, should be revised to reflect participant to close, without regard to medical technicians and paramedics 203(k) rehabilitation loans. Under the the underlying circumstances, is overly should be included since they save lives proposed rule, the amount of the FHA- burdensome. One commenter in all communities. insured mortgage may not exceed the recommended that a provision be HUD Response. HUD has not revised discounted sales price of the home plus included to ensure that earnest money the rule in response to this comment. the closing costs and pre-paid items. deposits be returned if extenuating HUD recognizes that firefighters and However, under the 203(k) program, a circumstances occur that keep a sale emergency medical technicians borrower may also finance the costs of from closing. employed by private entities sometimes rehabilitation of the property along with HUD Response. HUD has not revised perform similar services as those the purchase cost of the home. The the rule in response to these comments. employed by governmental entities. commenter suggested that § 291.545(b) The requirement that a potential However, the inclusion of privately be revised to permit the financing of purchaser make a minimal earnest
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money deposit (which will never exceed transactions to reach closing, thereby economically significant, as provided in $2,000) helps to ensure that prospective reducing the number of homes that go section 3(f)(1) of the Order). The docket purchasers are acting in good faith and to open bidding. file is available for public inspection in are willing and able to proceed to HUD Response. HUD has not adopted the Regulations Division, Office of closing on the purchase of the home. the change suggested by the commenter. General Counsel, Department of Comment: Disqualifying a potential The inclusion of nonprofit organizations Housing and Urban Development, 451 participant on the basis that his/her unnecessarily inserts a third party Seventh Street, SW., Room 10276, spouse previously owned residential between the ultimate program Washington, DC 20410–0500. Due to property or participated in the GNND beneficiary and HUD. The Department security measures at the HUD Program could result in unintended believes that limiting participation in Headquarters building, please schedule consequences. One commenter wrote the GNND Sales Program to the ultimate an appointment to review the docket file that participant eligibility should be purchasers—law enforcement officers, by calling the Regulations Division at determined on an individual basis. The teachers, and firefighters/emergency (202) 708–3055 (this is not a toll-free commenter wrote that evaluating medical technicians—will better focus number). Hearing- and speech-impaired eligibility as proposed will entice the program and help to ensure that the persons may access the telephone people to divorce in order to take GNND Sales Program accomplishes its number listed above via TTY by calling advantage of this program, resulting in goals. the Federal Information Relay Service at weaker families and communities. Comment: The rule should provide (800) 877–8339. HUD Response. HUD has not revised for additional backup bids. One the rule in response to this comment. commenter wrote that HUD should Information Collection Requirements The spousal eligibility requirement is select more than one backup bid in the The information collection consistent with the policy of permitting event that the winning bidder is unable requirements contained in this final rule one-time participation in the GNND to close on the purchase of the property. have been approved by OMB under the Sales Program and supports HUD’s Specifically, the commenter Paperwork Reduction Act of 1995 (44 interest in promoting homeownership recommended that HUD select up to U.S.C. 3501–3520) and assigned OMB opportunities to first-time homebuyers. seven backup bids. Control Number 2502–0306. In Comment: GNND participants should HUD Response. HUD has modified accordance with the Paperwork not be required to make an earnest the final rule in response to this Reduction Act, HUD may not conduct or money deposit. One commenter wrote comment. Recognizing the sponsor, and a person is not required to that the GNND Sales Program should programmatic goal of bringing respond to, a collection of information operate like the existing OND and TND community-minded service unless the collection displays a Sales Programs and not require a professionals into distressed currently valid OMB control number. downpayment. Another commenter communities, HUD acknowledges that it Unfunded Mandates Reform Act questioned having to put up any money may be necessary to allow for multiple when the quality of the homes is backup bids from eligible officers, Title II of the Unfunded Mandates substandard and would only agree to teachers, firefighters, or emergency Reform Act of 1995 (2 U.S.C. 1531– make such a deposit if it would ensure medical technicians in the event that a 1538) (UMRA) establishes requirements better quality homes and locations. A winning bidder is unable to proceed to for federal agencies to assess the effects third commenter also wrote that the closing. Two backup purchasers will be of their regulatory actions on state, GNND Sales Program should not require given the opportunity to proceed to local, and tribal governments, and the an earnest money deposit of up to closing. If these purchasers fail to private sector. This rule does not $2,000 so that the Program continues to complete the closing on the property, it impose any federal mandates on any make purchasing a home affordable for will then be made available for sale to state, local, or tribal governments, or the teachers and officers serving their other purchasers. While the commenter private sector within the meaning of communities. UMRA. HUD Response. HUD has not revised suggested that seven backup bids be the rule in response to these comments. considered, HUD believes that doing so Executive Order 13132, Federalism is unnecessarily administratively The amount of the required earnest Executive Order 13132 (entitled burdensome and could delay the money deposit will not impose an ‘‘Federalism’’) prohibits an agency from availability of HUD acquired homes for undue financial burden on potential publishing any rule that has federalism purchase. In settling on two backup home purchasers. The required deposit implications if the rule either imposes bids, HUD believes that it has struck an is equal to one percent of the list price, substantial direct compliance costs on equitable balance between providing but no more than $2,000. This minimal state and local governments and is not eligible participants with the maximum earnest money deposit helps to ensure required by statute, or the rule preempts opportunity to purchase inventoried that purchasers are acting in good faith state law, unless the agency meets the properties and enabling efficient and are willing and able to proceed to consultation and funding requirements management to effectively move unsold closing on the purchase of the home. of section 6 of the Order. This final rule properties to the open market. Comment: Nonprofit organizations does not have federalism implications should continue to be allowed to V. Findings and Certifications and does not impose substantial direct purchase properties through the GNND compliance costs on state and local Executive Order 12866, Regulatory Sales Program. One commenter wrote governments or preempt state law Planning and Review that nonprofit entities should continue within the meaning of the Order. to be allowed to purchase properties The Office of Management and Budget under the GNND Sales Program so that (OMB) reviewed this rule under Environmental Impact they can rehabilitate the properties and Executive Order 12866 (entitled A Finding of No Significant Impact then sell them to eligible participants at ‘‘Regulatory Planning and Review’’). with respect to the environment was the discounted rate. The commenter OMB determined that this rule is a made at the proposed rule stage in wrote that participating nonprofit significant regulatory action as defined accordance with HUD regulations at 24 organizations could enable more GNND in section 3(f) of the Order (although not CFR part 50, which implement section
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102(2)(C) of the National Environmental PART 291—DISPOSITION OF HUD- (2) With a downpayment of $100, but Policy Act of 1969 (42 U.S.C. ACQUIRED SINGLE FAMILY only if the law enforcement officer, 4332(2)(C)). The Finding of No PROPERTY teacher, or firefighter/emergency Significant Impact remains applicable to medical technician finances the home this final rule and is available for public I 1. The authority citation for 24 CFR through a Federal Housing inspection between the hours of 8 a.m. part 291 continues to read as follows: Administration (FHA) insured mortgage. and 5 p.m. weekdays in the Regulations Authority: 12 U.S.C. 1701 et seq.; 42 U.S.C. (b) Eligible properties. Under the Division, Office of General Counsel, 1441, 1441a, 1551a, and 3535(d). GNND Sales Program, single-unit Department of Housing and Urban properties acquired by HUD located in I 2. Subpart F is revised to read as Development, 451 Seventh Street, SW., HUD-designated revitalization areas follows: Room 10276, Washington, DC 20410– (except occupied properties), those 0500. Due to security measures at the Subpart F—Good Neighbor Next Door Sales located in Asset Control Areas, or those HUD Headquarters building, please Program that HUD has determined will be sold schedule an appointment to review the Sec. through an alternative sales method will finding by calling the Regulations 291.500 Purpose. be made available to interested law Division at (202) 708–3055 (this is not 291.505 Definition of ‘‘unit of general local enforcement officers, teachers, and a toll-free number). Hearing- and government.’’ firefighters/emergency medical speech-impaired persons may access the 291.510 Overview of the GNND Sales technicians prior to listing the telephone number listed above via TTY Program. 291.515 Purchaser qualifications. properties for sale to other purchasers. by calling the Federal Information Relay (c) Multiple bids. In the event that Service at (800) 877–8339. 291.520 Eligible law enforcement officers. 291.525 Eligible teachers. several bids are received on a single Regulatory Flexibility Act 291.530 Eligible firefighter/emergency property, HUD will randomly select a medical technicians. The Regulatory Flexibility Act (5 winning offer by lottery and will also 291.535 Earnest money deposit. randomly select two backup bids, to be U.S.C. 601 et seq.) generally requires an 291.540 Owner-occupancy term. agency to conduct a regulatory utilized in the order selected, in the 291.545 Financing purchase of the home. event the winning purchaser is unable flexibility analysis of any rule subject to 291.550 Second mortgage. notice and comment rulemaking 291.555 Refinancing. to close on the property. If both of the requirements, unless the agency certifies 291.560 Ineligibility of multiple-unit backup purchasers are also unable to that the rule will not have a significant properties. close on the property, the property will economic impact on a substantial 291.565 Continuing obligations after then be made available for sale to number of small entities. This final rule purchase. purchasers through other sales methods. promotes safe neighborhoods by (d) Real estate brokers. Law Subpart F—Good Neighbor Next Door enforcement officers, teachers, and enabling law enforcement officers, Sales Program teachers, and firefighters/emergency firefighters/emergency medical medical technicians to purchase HUD- § 291.500 Purpose. technicians must submit bids through a participating real estate broker. Any real acquired single-family homes at a This subpart describes the policies estate broker who has agreed to comply significant discount. The final rule and procedures governing the Good with HUD requirements may participate places restrictions on the use of a home Neighbor Next Door (GNND) Sales in the GNND Sales Program. Real estate purchased through the GNND Sales Program. The purpose of the GNND brokers may submit unlimited numbers Program, which affects the individual Sales Program is to improve the quality of bids on an individual property purchasing the home. This rule, of life in distressed urban communities. provided each bid is from a different however, does not place restrictions on This is to be accomplished by prospective purchaser. any small entities involved in any encouraging law enforcement officers, transactions related to the GNND Sales teachers, and firefighters/emergency (e) Cap on sales. The number of HUD- Program. Accordingly, the undersigned medical technicians, whose daily acquired homes sold under the GNND certifies that this final rule would not responsibilities and duties represent a Sales Program in a fiscal year shall not have a significant economic impact on nexus to the needs of the community, to exceed 5 percent of the number of ‘‘Part a substantial number of small entities. purchase and live in homes in these A’’ mortgage insurance conveyance claims paid by HUD in the prior fiscal Catalog of Federal Domestic Assistance communities. year. The cap shall apply on a national Numbers § 291.505 Definition of ‘‘unit of general basis, but HUD reserves the right to The Catalog of Federal Domestic local government.’’ geographically apportion the cap to Assistance Number for the Officer Next For purposes of this subpart, the term address regional or local differences in Door Program is 14.198. The Catalog of unit of general local government means the number of homes sold through the Federal Domestic Assistance Number a county or parish, city, town, township, GNND Sales Program. Additionally, for the Teacher Next Door Initiative is or other political subdivision of a state. HUD may adjust the percentage of the 14.310. cap for any fiscal year. Any HUD § 291.510 Overview of the GNND Sales List of Subjects in 24 CFR Part 291 determination to geographically Program. distribute the cap, change a current Community facilities, Conflict of (a) General. The GNND Sales Program geographic distribution, or adjust the interests, Homeless, Lead poisoning, enables a full-time law enforcement percentage of the cap will be announced Low and moderate income housing, officer, teacher, or firefighter/emergency by HUD through publication of a notice Mortgages, Reporting and recordkeeping medical technician to purchase a in the Federal Register at least 30 days requirements, Surplus government specifically designated HUD-acquired before the revision takes effect. property. home located in a HUD-designated I Accordingly, for the reasons described revitalization area: § 291.515 Purchaser qualifications. in the preamble, HUD amends 24 CFR (1) At a 50 percent discount from the To qualify to purchase a home part 291 as follows: list price; and through the GNND Sales Program:
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(a) The person must be employed as § 291.525 Eligible teachers. (2) Ninety days following closing if a law enforcement officer (as described A person qualifies as a teacher for the HUD determines that the home requires in § 291.520), teacher (as described in purposes of the GNND Sales Program if more than $10,000, but not more than § 291.525), or firefighter/emergency the person is: $20,000 in repairs prior to occupancy; medical technician (as described in (a) Employed as a full-time teacher by or § 291.530) at the time he/she submits a a state-accredited public school or (3) One hundred and eighty days bid to purchase a home through the private school that provides direct following closing if HUD determines program and at the time of closing on services to students in grades pre- that the home requires more than the purchase of the home; kindergarten through 12; and $20,000 in repairs prior to occupancy. (b) The person must certify to his/her (b) The public or private school where (c) Interruptions to owner-occupancy good faith intention to continue the person is employed as a teacher term—(1) General. HUD may, at its sole employment as a law enforcement serves students from the area where the discretion, allow interruptions to the 36- officer (as described in § 291.520), home is located in the normal course of month owner-occupancy term if it teacher (as described in § 291.525), or business. determines that the interruption is firefighter/emergency medical § 291.530 Eligible firefighter/emergency necessary to prevent hardship, but only technician (as described in § 291.530) medical technicians. if the law enforcement officer, teacher, or firefighter/emergency medical for at least one year following the date A person qualifies as a firefighter/ technician submits a written and signed of closing; emergency medical technician for the request to HUD containing the following (c) The person must make an earnest purposes of the GNND Sales Program if money deposit at the time of signing the the person is employed full-time as a information: (i) The reason(s) why the interruption contract for purchase of the home, as firefighter or emergency medical is necessary; described in § 291.535; technician by a fire department or (ii) The dates of the intended (d) The person must agree to own, and emergency medical services responder live in as his/her sole residence, the interruption; and unit of the federal government, a state, (iii) A certification from the law home for the entire duration of the unit of general local government, or an enforcement officer, teacher, or owner-occupancy term, as described in Indian tribal government serving the firefighter/emergency medical § 291.540, and to certify to that area where the home is located. technician that: occupancy, as described in § 291.565; § 291.535 Earnest money deposit. (A) The law enforcement officer, (e) The person must agree to execute teacher, or firefighter/emergency a second mortgage and note on the (a) General. The earnest money deposit is the sum of money that must medical technician is not abandoning home, as described in § 291.550, for the the home as his/her permanent difference between the list price and the be paid by the law enforcement officer, teacher, or firefighter/emergency residence; and discounted selling price; (B) The law enforcement officer, (f) Neither the person (nor his/her medical technician at the time of submitting a bid to purchase a property teacher, or firefighter/emergency spouse) may have owned any residential medical technician will resume real property during the year prior to the under the GNND Sales Program. Each bid must be accompanied by a occupancy of the home upon the date of submitting a bid on the home conclusion of the interruption and being acquired through the GNND Sales certification from the real estate broker that the earnest money deposit has been complete the remainder of the 36-month Program; owner-occupancy term. (g) Neither the person (nor his/her deposited in the broker’s escrow account. (2) Timing of written request to HUD. spouse) must ever have purchased (b) Amount of earnest money deposit. The written request for approval of an another home under the GNND Sales The amount of the earnest money interruption to the owner-occupancy Program or under the predecessor deposit required is an amount equal to term must be submitted to HUD at least Officer Next Door Sales and Teacher one percent of the list price, but no less 30 calendar days before the anticipated Next Door Sales Programs; and than $500 and no more than $2,000. interruption. Military service members (h) Although both spouses, if (c) Acceptance or rejection of offer. If protected by the Servicemembers Civil otherwise eligible, may submit a bid on an offer is accepted, the earnest money Relief Act need not submit their written a single home made available for sale deposit will be credited to the purchaser request to HUD 30 days in advance of under the GNND Sales Program, HUD at closing. If the offer is rejected, the an anticipated interruption, but should will approve a bid from only one earnest money deposit will be returned. submit their written request as soon as spouse. Earnest money deposits are subject to practicable upon learning of a potential § 291.520 Eligible law enforcement total forfeiture for failure of the interruption, in order to ensure timely officers. participant to close a sale. processing and approval of the request. A person qualifies as a law § 291.540 Owner-occupancy term. § 291.545 Financing purchase of the home. enforcement officer for the purposes of (a) General. The owner-occupancy (a) Purchase using conventional the GNND Sales Program if the person term is the number of months a financing. If the law enforcement is: participant in the GNND Sales Program officer, teacher, or firefighter/emergency (a) Employed full-time by a law must agree to own, and live in as his/ medical technician uses conventional enforcement agency of the federal her sole residence, a home purchased financing to purchase a home under the government, a state, a unit of general through the GNND Sales Program. GNND Sales Program, the amount of the local government, or an Indian tribal (b) Start of owner-occupancy term. mortgage may not exceed the government; and The owner-occupancy term is 36 discounted sales price of the home. (b) In carrying out such full-time months, commencing either: (b) Purchase with FHA-insured employment, the person is sworn to (1) Thirty days following closing if mortgage. (1) A law enforcement officer, uphold, and make arrests for violations HUD determines that the home requires teacher, or firefighter/emergency of, federal, state, tribal, county, no more than $10,000 in repairs prior to medical technician using an FHA- township, or municipal laws. occupancy; insured mortgage to finance purchase of
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the home may finance reasonable and firefighter/emergency medical Loan Insurance Program in order to customary closing costs with the FHA- technician sells his/her home or stops rehabilitate or repair the home; or insured mortgage. living in the home as his/her sole (3) Is necessary to prevent the law (2) The amount of the FHA-insured residence prior to the expiration of the enforcement officer, teacher, or mortgage may not exceed the owner-occupancy term, he/she will owe firefighter/emergency medical discounted sales price of the home plus: HUD the amount due on the second technician from defaulting on the first (i) The closing costs; and mortgage as of the date the property is mortgage. (ii) The costs of rehabilitating and/or either sold or vacated. improving the home, where purchase of § 291.560 Ineligibility of multiple-unit the home is being financed with an § 291.555 Refinancing. properties. FHA-insured 203(k) rehabilitation loan (a) General. A law enforcement Only single-unit properties are (see 24 CFR part 203). officer, teacher, or firefighter/emergency (c) Closing costs and selling broker’s eligible for the GNND Sales Program. medical technician may refinance the commissions. In no event will HUD pay mortgage and note used to purchase the § 291.565 Continuing obligations after a buyer’s closing costs on the purchase home. However, the total of the purchase. of a property or a selling broker’s refinanced mortgage and the remaining commission through the GNND Sales To remain in compliance with the principal balance of the second Program. GNND Sales Program, the law mortgage may not exceed 95 percent of enforcement officer, teacher, or § 291.550 Second mortgage. the value of the property, as appraised firefighter/emergency medical (a) General. The second mortgage is a at the time of the refinancing. Unless technician must, for the entire duration mortgage and note, payable to HUD, on HUD permits subordination pursuant to of the owner-occupancy term: the home purchased through the GNND paragraph (b) of this section, the second Sales Program in the amount of the mortgage described in § 291.550 must (a) Continue to own, and live in as difference between the list price of the hold a superior lien position to the his/her sole residence, the home home and the discounted selling price. refinanced mortgage. purchased through the GNND Sales Program; and (b) Second mortgage term. The term of (b) Subordination of second mortgage. the second mortgage is equal to the HUD may permit subordination of the (b) Certify initially and once annually owner-occupancy term (36 months) plus second mortgage to the refinanced thereafter during and at the conclusion 30, 90, or 180 days, as provided in mortgage, but only if HUD, at its sole of the owner-occupancy term that he/ § 291.540(b). The amount of the second discretion, determines that the she was at all times fully in compliance mortgage will be reduced by 1/36th on refinancing will satisfy one of the with paragraph (a) of this section. the last day of each month of occupancy following: Dated: October 25, 2006. following the occupancy start date. At the end of the 36th month of occupancy, (1) Will result in a lower annual Brian D. Montgomery, the amount of the second mortgage will percentage rate (APR) on the first Assistant Secretary for Housing—Federal be zero. mortgage; Housing Commissioner. (c) Sale or vacancy of home. If the law (2) Will be undertaken pursuant to [FR Doc. E6–18456 Filed 10–31–06; 8:45 am] enforcement officer, teacher, or HUD’s Section 203(k) Rehabilitation BILLING CODE 4210–67–P
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Part VI
The President
Presidential Determination No. 2006–25 of September 26, 2006—Presidential Determination With Respect to Foreign Governments’ Efforts Regarding Trafficking in Persons Presidential Determination No. 2007–1 of October 11, 2006—Presidential Determination on FY 2007 Refugee Admissions Numbers and Authorizations of In-Country Refugee Status Pursuant to Sections 207 and 101(a)(42), respectively, of the Immigration and Nationality Act, and Determination Pursuant to Section 2(b)(2) of the Migration and Refugee Assistance Act, as Amended Presidential Determination No. 2007–2 of October 13, 2006—Presidential Determination on Waiver and Certification of Statutory Provisions Regarding the Palestine Liberation Organization (PLO) Office
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Federal Register Presidential Documents Vol. 71, No. 211
Wednesday, November 1, 2006
Title 3— Presidential Determination No. 2006–25 of September 26, 2006
The President Presidential Determination With Respect to Foreign Governments’ Efforts Regarding Trafficking in Persons
Memorandum for the Secretary of State
Consistent with section 110 of the Trafficking Victims Protection Act of 2000 (Division A of Public Law 106–386), as amended, (the ‘‘Act’’), I hereby: • Make the determination provided in section 110(d)(1)(A)(i) of the Act, with respect to Burma, Venezuela, and Zimbabwe, not to provide certain funding for those countries’ governments for fiscal year 2007, until such government complies with the minimum standards or makes significant efforts to bring itself into compliance, as may be determined by the Secretary of State in a report to the Congress pursuant to section 110(b) of the Act; • Make the determination provided in section 110(d)(1)(A)(ii) of the Act, with respect to Cuba, the Democratic People’s Republic of Korea, Iran, and Syria, not to provide certain funding for those countries’ governments for fiscal year 2007, until such government complies with the minimum standards or makes significant efforts to bring itself into compliance, as may be determined by the Secretary of State in a report to the Congress pursuant to section 110(b) of the Act; • Make the determination provided in section 110(d)(3) of the Act, concerning the determinations of the Secretary of State with respect to Belize and Laos; • Determine, consistent with section 110(d)(4) of the Act, with respect to Iran, that funding for educational and cultural exchange programs described in section 110(d)(1)(A)(ii) of the Act that include educators, municipal lead- ers, religious leaders, journalists, economists, or sports or cultural figures would promote the purposes of the Act or is otherwise in the national interest of the United States; • Determine, consistent with section 110(d)(4) of the Act, with respect to Saudi Arabia, that provision to Saudi Arabia of all programs, projects, or activities of assistance described in sections 110(d)(1)(A)(i) and 110(d)(1)(B) of the Act would promote the purposes of the Act or is otherwise in the national interest of the United States; • Determine, consistent with section 110(d)(4) of the Act, with respect to Sudan, that provision to Sudan of all programs, projects, or activities of assistance described in sections 110(d)(1)(A)(i) and 110(d)(1)(B) of the Act would promote the purposes of the Act or is otherwise in the national interest of the United States; • Determine, consistent with section 110(d)(4) of the Act, with respect to Syria, that funding for educational and cultural exchange programs described in section 110(d)(1) (A)(ii) of the Act that include educators, municipal leaders, religious leaders, journalists, economists, or sports or cultural figures would promote the purposes of the Act or is otherwise in the national interest of the United States; • Determine, consistent with section 110(d)(4) of the Act, with respect to Uzbekistan, that provision to Uzbekistan of all programs, projects, or activities of assistance described in sections 110(d)(1)(A)(i) and 110(d)(1)(B) of the Act would promote the purposes of the Act or is otherwise in the national interest of the United States;
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• Determine, consistent with section 110(d)(4) of the Act, with respect to Venezuela, for all programs, projects, or activities of assistance for victims of trafficking in persons or to combat such trafficking, or for strengthening the democratic process, including strengthening political parties and sup- porting electoral observation and monitoring and related programs, or for public diplomacy, that provision to Venezuela of the assistance described in sections 110(d) (1)(A)(i) and 110(d)(1)(B) of the Act for such programs, projects, or activities would promote the purposes of the Act or is otherwise in the national interest of the United States; • Determine, consistent with section 110(d)(4) of the Act, with respect to Zimbabwe, for all programs, projects, or activities of assistance for victims of trafficking in persons or to combat such trafficking, for the promotion of health or good governance, or which would have a significant adverse effect on vulnerable populations if suspended, that provision to Zimbabwe of the assistance described in sections 110(d)(1)(A)(i) and 110(d)(1)(B) of the Act for such programs, projects, or activities would promote the purposes of the Act or is otherwise in the national interest of the United States; • Determine, consistent with section 110(d)(4) of the Act, that assistance to Venezuela or Zimbabwe described in section 110(d)(1)(B) of the Act that: (1) is a regional program, project, or activity under which the total benefit to Venezuela or Zimbabwe does not exceed 10 percent of the total value of such program, project, or activity; or (2) has as its primary objective the addressing of basic human needs, as defined by the Department of the Treasury with respect to other, existing legislative mandates concerning U.S. participation in the multilateral devel- opment banks; or (3) is complementary to or has similar policy objectives to programs being implemented bilaterally by the United States Government; or (4) has as its primary objective the improvement of the country’s legal system, including in areas that impact the country’s ability to investigate and prosecute trafficking cases or otherwise improve implementation of a country’s anti-trafficking policy, regulations, or legislation; or (5) in engaging a government, international organization, or civil society organization, and that seeks as its primary objective(s) to: (a) increase efforts to investigate and prosecute trafficking in persons crimes; (b) in- crease protection for victims of trafficking through better screening, identi- fication, rescue/removal, aftercare (shelter, counseling) training and re- integration; or (c) expand prevention efforts through education and aware- ness campaigns highlighting the dangers of trafficking or training and economic empowerment of populations clearly at risk of falling victim to trafficking would promote the purposes of the Act or is otherwise in the national interest of the United States. The certification required by section 110(e) of the Act is provided herewith.
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You are hereby authorized and directed to submit this determination to the Congress and to publish it in the Federal Register.
THE WHITE HOUSE, Washington, September 26, 2006.
[FR Doc. 06–9027 Filed 10–31–06; 8:45 am] Billing code 4710–10–P
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Presidential Determination No. 2007–1 of October 11, 2006 Presidential Determination on FY 2007 Refugee Admissions Numbers and Authorizations of In-Country Refugee Status Pursuant to Sections 207 and 101(a)(42), respectively, of the Immigration and Nationality Act, and Determination Pursuant to Section 2(b)(2) of the Migration and Refugee Assistance Act, as Amended
Memorandum for the Secretary of State
In accordance with section 207 of the Immigration and Nationality Act (the ‘‘Act’’) (8 U.S.C. 1157), as amended, and after appropriate consultations with the Congress, I hereby make the following determinations and authorize the following actions: The admission of up to 70,000 refugees to the United States during FY 2007 is justified by humanitarian concerns or is otherwise in the national interest; provided, however, that this number shall be understood as includ- ing persons admitted to the United States during FY 2007 with Federal refugee resettlement assistance under the Amerasian immigrant admissions program, as provided below. The ceiling shall be construed as a maximum not to be exceeded, and not a minimum to be achieved. The 70,000 admissions shall be allocated among refugees of special humani- tarian concern to the United States in accordance with the following regional allocations; provided, however, that the number of admissions allocated to the East Asia region shall include persons admitted to the United States during FY 2007 with Federal refugee resettlement assistance under section 584 of the Foreign Operations, Export Financing, and Related Programs Appropriations Act of 1988, as contained in section 101(e) of Public Law 100–202 (Amerasian immigrants and their family members); provided further that the number of admissions allocated to the former Soviet Union shall include persons admitted who were nationals of the former Soviet Union, or in the case of persons having no nationality, who were habitual residents of the former Soviet Union prior to September 2, 1991:
Africa ...... 22,000 East Asia ...... 11,000 Europe and Central Asia ...... 6,500 Latin America/Caribbean ...... 5,000 Near East/South Asia ...... 5,500 Unallocated ...... 20,000 The 20,000 unallocated refugee admissions shall be allocated to regional ceilings as needed. Upon providing notification to the Judiciary Committees of the Congress, you are hereby authorized to use unallocated admissions in regions where the need for additional admissions arises. Additionally, upon notification to the Judiciary Committees of the Congress, you are further authorized to transfer unused admissions allocated to a particular region to one or more other regions, if there is a need for greater admissions for the region or regions to which the admissions are being transferred. Consistent with section 2(b)(2) of the Migration and Refugee Assistance Act of 1962, as amended, I hereby determine that assistance to or on behalf of persons applying for admission to the United States as part of the overseas refugee admissions program will contribute to the
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foreign policy interests of the United States and designate such persons for this purpose. Consistent with section 101(a)(42) of the Act (8 U.S.C. 1101(a)(42)) and after appropriate consultation with the Congress, I also specify that, for FY 2007, the following persons may, if otherwise qualified, be considered refugees for the purpose of admission to the United States within their countries of nationality or habitual residence: a. Persons in Vietnam b. Persons in Cuba c. Persons in the former Soviet Union d. In exceptional circumstances, persons identified by a United States Embassy in any location You are authorized and directed to report this determination to the Congress immediately and to publish it in the Federal Register.
THE WHITE HOUSE, Washington, October 11, 2006.
[FR Doc. 06–9028 Filed 10–31–06; 8:45 am] Billing code 4710–10–P
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Presidential Determination No. 2007–2 of October 13, 2006
Presidential Determination on Waiver and Certification of Statutory Provisions Regarding the Palestine Liberation Organization (PLO) Office
Memorandum for the Secretary of State
Pursuant to the authority and conditions contained in section 534(d) of the Foreign Operations, Export Financing, and Related Programs Appropria- tions Act, 2006, Public Law 109–102, I hereby determine and certify that it is important to the national security interests of the United States to waive the provisions of section 1003 of the Anti-Terrorism Act of 1987, Public Law 100–204. This waiver shall be effective for a period of 6 months from the date hereof. You are hereby authorized and directed to transmit this determination to the Congress and to publish it in the Federal Register.
THE WHITE HOUSE, Washington, October 13, 2006.
[FR Doc. 06–9029 Filed 10–31–06; 8:45 am] Billing code 4710–10–P
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Reader Aids Federal Register Vol. 71, No. 211 Wednesday, November 1, 2006
CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING NOVEMBER
Federal Register/Code of Federal Regulations At the end of each month, the Office of the Federal Register General Information, indexes and other finding 202–741–6000 publishes separately a List of CFR Sections Affected (LSA), which aids lists parts and sections affected by documents published since Laws 741–6000 the revision date of each title. Presidential Documents Executive orders and proclamations 741–6000 The United States Government Manual 741–6000 Other Services Electronic and on-line services (voice) 741–6020 Privacy Act Compilation 741–6064 Public Laws Update Service (numbers, dates, etc.) 741–6043 TTY for the deaf-and-hard-of-hearing 741–6086
ELECTRONIC RESEARCH World Wide Web Full text of the daily Federal Register, CFR and other publications is located at: http://www.gpoaccess.gov/nara/index.html Federal Register information and research tools, including Public Inspection List, indexes, and links to GPO Access are located at: http://www.archives. gov/federallregister E-mail FEDREGTOC-L (Federal Register Table of Contents LISTSERV) is an open e-mail service that provides subscribers with a digital form of the Federal Register Table of Contents. The digital form of the Federal Register Table of Contents includes HTML and PDF links to the full text of each document. To join or leave, go to http://listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions. PENS (Public Law Electronic Notification Service) is an e-mail service that notifies subscribers of recently enacted laws. To subscribe, go to http://listserv.gsa.gov/archives/publaws-l.html and select Join or leave the list (or change settings); then follow the instructions. FEDREGTOC-L and PENS are mailing lists only. We cannot respond to specific inquiries. Reference questions. Send questions and comments about the Federal Register system to: [email protected] The Federal Register staff cannot interpret specific documents or regulations.
FEDERAL REGISTER PAGES AND DATE, NOVEMBER 64111–64438...... 1
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REMINDERS INTERIOR DEPARTMENT comments due by 11-7- Atlantic herring; comments The items in this list were Fish and Wildlife Service 06; published 9-8-06 [FR due by 11-6-06; editorially compiled as an aid Endangered and threatened E6-14881] published 9-6-06 [FR to Federal Register users. species: AGRICULTURE E6-14662] Meetings: Inclusion or exclusion from Critical habitat DEPARTMENT this list has no legal designations— Food and Nutrition Service Pacific Fishery Management significance. Council; comments due Alameda whipsnake; Child nutrition programs: by 11-7-06; published 10- published 10-2-06 Women, infants, and 17-06 [FR E6-17241] children; special RULES GOING INTO JUSTICE DEPARTMENT Ocean and coastal resource supplemental nutrition EFFECT NOVEMBER 1, Drug Enforcement management: program— 2006 Administration Marine sanctuaries— Food packages; revisions; Controlled substances; Flower Garden Banks comments due by 11-6- manufacturers, distributors, National Marine COMMERCE DEPARTMENT 06; published 8-7-06 and dispensers; registration: Sanctuary, TX; National Oceanic and [FR 06-06627] Atmospheric Administration Diversion Control Program; meetings; comments registration and AGRICULTURE due by 11-10-06; Fishery conservation and DEPARTMENT management: reregistration application published 9-7-06 [FR fee schedule; adjustment; Forest Service 06-07481] Atlantic highly migratory published 8-29-06 species— Alaska National Interest Lands CONSUMER PRODUCT Conservation Act; Title VIII SAFETY COMMISSION Atlantic blue and white JUSTICE DEPARTMENT Executive Office for implementation (subsistence Consumer Product Safety Act: marlin, recreational priority): landings limit; Atlantic Immigration Review: Portable generators; labeling tunas, swordfish, Custody determinations Kenai Peninsula subsistence requirements; comments sharks, and billfish, review; published 10-2-06 resource region; due by 11-7-06; published fishery management comments due by 11-9- 8-24-06 [FR 06-07069] PENSION BENEFIT 06; published 9-27-06 [FR plans; published 10-2- GUARANTY CORPORATION DEFENSE DEPARTMENT 06 06-08280] Single-employer plans: Defense Acquisition Northeastern United States Kenai Peninsula; Regulations System Allocation of assets— subsistence resource fisheries— Acquisition regulations: Benefits payable in region; comments due by Scup; published 7-26-06 Acquisition from communist terminated plans; 11-9-06; published 8-14- Chinese military Tilefish; published 10-31- interest assumptions for 06 [FR 06-06905] companies; prohibition; 06 valuing and paying COMMERCE DEPARTMENT comments due by 11-7- ENERGY DEPARTMENT benefits; published 10- Foreign-Trade Zones Board 06; published 9-8-06 [FR Energy Efficiency and 13-06 Applications, hearings, E6-14895] Renewable Energy Office POSTAL SERVICE determinations, etc.: Tiered evaluation of offers; Energy conservation: Domestic Mail Manual: Florida; comments due by limitations; comments due State Energy Program; Infectious substances; 11-6-06; published 8-22- by 11-7-06; published 9-8- published 10-2-06 mailing and packaging 06 [FR E6-13869] 06 [FR E6-14896] ENVIRONMENTAL standards; published 11-1- Georgia ENERGY DEPARTMENT PROTECTION AGENCY 06 Eastman Kodak Co.; x-ray Energy Efficiency and Pesticide programs: TREASURY DEPARTMENT film, color paper, digital Renewable Energy Office Plant-incorporated Internal Revenue Service media, inkjet paper, Consumer products; energy protectorants; procedures Income taxes: entertainment imaging, conservation program: and requirements— Confidential transactions; and health imaging; Residential central air Bacillus thuringiensis published 11-2-06 Open for comments conditioners and heat modified Cry3A protein; until further notice; pumps; test procedure; published 11-1-06 published 7-25-06 [FR comments due by 11-9- Superfund program: COMMENTS DUE NEXT E6-11873] 06; published 7-20-06 [FR Landowner liability WEEK COMMERCE DEPARTMENT 06-06320] protection; standards for Industry and Security Correction; comments due conducting appropriate AGRICULTURE Bureau by 11-9-06; published 10-10-06 [FR E6-16648] inquiries into previous DEPARTMENT Chemical Weapons ownership, uses, and Agricultural Marketing Convention regulations: ENVIRONMENTAL environmental conditions PROTECTION AGENCY Service Plant sites that produce of property; published 11- Egg, poultry, and rabbit Air pollutants, hazardous; 1-05 unscheduled discrete products; inspection and organic chemicals; national emission standards: FEDERAL grading; inspection status form Municipal solid waste COMMUNICATIONS Fees and charges increase; change; records review landfills, amendments; COMMISSION comments due by 11-6- and recordkeeping comments due by 11-7- Radio stations; table of 06; published 10-6-06 [FR requirements; comments 06; published 9-8-06 [FR assignments: E6-16528] due by 11-6-06; published 06-07493] Various States; published AGRICULTURE 10-6-06 [FR E6-16597] Polyvinyl chloride and 11-1-06 DEPARTMENT COMMERCE DEPARTMENT copolymers production, primary and secondary HOMELAND SECURITY Commodity Credit National Oceanic and DEPARTMENT copper smelting, and Corporation Atmospheric Administration primary nonferrous metals Coast Guard Loan and purchase programs: Fishery conservation and (zinc, cadmium, and Drawbridge operations: Sugar program; marketing of management: beryllium); comments due Massachusetts; published sugar derived from Northeastern United States by 11-6-06; published 10- 10-23-06 imported beet thick juice; fisheries— 6-06 [FR 06-08434]
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Air pollution; standards of 06; published 9-27-06 [FR Lender examination and Regulatory Flexibility Act performance for new 06-08280] review fees; comments Section 610 and plain stationary sources: Kenai Peninsula; due by 11-9-06; published language reviews; Deadline extensions for subsistence resource 10-10-06 [FR E6-16750] comments due by 11-6- source owners and region; comments due by TRANSPORTATION 06; published 8-8-06 [FR operators to conduct 11-9-06; published 8-14- DEPARTMENT E6-12859] performance tests; 06 [FR 06-06905] Federal Aviation TREASURY DEPARTMENT comments due by 11-7- Importation, exportation, and Administration Internal Revenue Service 06; published 8-9-06 [FR transportation of wildlife: Airworthiness directives: Income taxes: E6-12966] Injurious wildlife— Airbus; comments due by Capital asset exclusion for Air quality implementation Silver carp and largescale 11-6-06; published 9-6-06 accounts and notes plans; approval and silver carp; comments [FR E6-14624] receivable; comments due promulgation; various due by 11-6-06; by 11-6-06; published 8-7- States: published 9-5-06 [FR BAE Systems (Operations) Ltd.; comments due by 06 [FR E6-12789] Maryland; comments due by 06-07416] 11-6-06; published 9-6-06 Essential governmental 11-9-06; published 10-10- JUSTICE DEPARTMENT [FR E6-14631] function definition and 06 [FR E6-16653] Alcohol, Tobacco, Firearms, Dassault; comments due by limitation to activities Grants and other Federal and Explosives Bureau 11-6-06; published 10-5- customarily performed by assistance: Explosives: 06 [FR E6-16452] States and local Tribal Clean Air Act governments; definition; Commerce in explosives— Hartzell Propeller Inc.; authority— comments due by 11-7- Propellant actuated comments due by 11-7- Four Corners Power device; definition; 06; published 8-9-06 [FR 06; published 9-8-06 [FR E6-12884] Plant; Navajo Indian comments due by 11-9- E6-14691] Reservation, NM; 06; published 8-11-06 McDonnell Douglas; source-specific Federal [FR E6-13201] comments due by 11-6- LIST OF PUBLIC LAWS implementation plan; JUSTICE DEPARTMENT comments due by 11-6- 06; published 9-20-06 [FR Drug Enforcement This is a continuing list of 06; published 9-12-06 06-07945] Administration public bills from the current [FR E6-15097] Raytheon; comments due by Schedules of controlled 11-7-06; published 9-8-06 session of Congress which Navajo Generating substances: have become Federal laws. It Station; Navajo Indian [FR 06-07511] Schedule II controlled Airworthiness standards: may be used in conjunction Reservation, AZ; substances; multiple with ‘‘PLUS’’ (Public Laws Special conditions— source-specific Federal prescriptions; comments Update Service) on 202–741– implementation plan; due by 11-6-06; published Boeing Model 777-200 6043. This list is also comments due by 11-6- 9-6-06 [FR E6-14520] series airplanes; available online at http:// 06; published 9-12-06 comments due by 11-7- JUSTICE DEPARTMENT www.archives.gov/federal- [FR E6-15086] 06; published 10-18-06 register/laws.html. Pesticides; tolerances in food, Federal Bureau of [FR E6-17345] Investigation animal feeds, and raw Garmin International, Inc.; The text of laws is not Criminal justice information agricultural commodities: Raytheon Model C90A published in the Federal systems: Paraquat dichloride; King Air airplane; Register but may be ordered comments due by 11-6- Criminal history record comments due by 11-6- in ‘‘slip law’’ (individual 06; published 9-6-06 [FR information and fingerprint 06; published 10-5-06 pamphlet) form from the E6-14642] submissions; retention and [FR E6-16497] Superintendent of Documents, exchange; comments due U.S. Government Printing Propoxycarbazone; by 11-6-06; published 9-5- TRANSPORTATION Office, Washington, DC 20402 comments due by 11-6- 06 [FR E6-14605] DEPARTMENT (phone, 202–512–1808). The 06; published 9-6-06 [FR LABOR DEPARTMENT Federal Highway text will also be made E6-14641] Administration available on the Internet from Toxic substances: Mine Safety and Health Administration Engineering and traffic GPO Access at http:// Significant new uses— www.gpoaccess.gov/plaws/ Mine Improvement and New operations: index.html. Some laws may Benzenesulfonic acid, etc.; Emergency Response Act; Uniform Traffic Control not yet be available. comments due by 11-6- implementation: Devices Manual— 06; published 10-6-06 Assessment of civil Traffic sign H.R. 6061/P.L. 109–367 [FR E6-16574] penalties; criteria and retroreflectivity; Secure Fence Act of 2006 FEDERAL TRADE procedures; comments maintenance methods; (Oct. 26, 2006; 120 Stat. COMMISSION due by 11-9-06; published comments due by 11-6- 2638) 06; published 5-8-06 Telemarketing sales rules: 10-26-06 [FR 06-08933] Last List October 19, 2006 Prerecorded telemarketing LIBRARY OF CONGRESS [FR E6-06882] calls, etc.; seller and Copyright Office, Library of TRANSPORTATION telemarketer compliance; Congress DEPARTMENT Public Laws Electronic comments due by 11-6- Copyright office and Pipeline and Hazardous Notification Service 06; published 10-4-06 [FR procedures: Materials Safety 06-08524] (PENS) Retransmission of digital Administration INTERIOR DEPARTMENT broadcast signals Pipeline safety: Fish and Wildlife Service pursuant to the cable Unusually sensitive areas; PENS is a free electronic mail Alaska National Interest Lands statutory license; protection from rural notification service of newly Conservation Act; Title VIII comments due by 11-6- onshore hazardous liquid enacted public laws. To implementation (subsistence 06; published 9-20-06 [FR gathering lines and low- subscribe, go to http:// priority): 06-07927] stress lines; comments listserv.gsa.gov/archives/ publaws-l.html Kenai Peninsula subsistence SMALL BUSINESS due by 11-6-06; published resource region; ADMINISTRATION 9-6-06 [FR 06-07438] Note: This service is strictly comments due by 11-9- Business loans: Regulatory reviews: for E-mail notification of new
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laws. The text of laws is not available through this service. PENS cannot respond to specific inquiries sent to this address.
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TABLE OF EFFECTIVE DATES AND TIME PERIODS—NOVEMBER 2006
This table is used by the Office of the dates, the day after publication is A new table will be published in the Federal Register to compute certain counted as the first day. first issue of each month. dates, such as effective dates and When a date falls on a weekend or comment deadlines, which appear in holiday, the next Federal business day agency documents. In computing these is used. (See 1 CFR 18.17)
DATE OF FR 15 DAYS AFTER 30 DAYS AFTER 45 DAYS AFTER 60 DAYS AFTER 90 DAYS AFTER PUBLICATION PUBLICATION PUBLICATION PUBLICATION PUBLICATION PUBLICATION
Nov 1 Nov 16 Dec 1 Dec 18 Jan 2 Jan 30
Nov 2 Nov 17 Dec 4 Dec 18 Jan 2 Jan 31
Nov 3 Nov 20 Dec 4 Dec 18 Jan 2 Feb 1
Nov 6 Nov 21 Dec 6 Dec 21 Jan 5 Feb 5
Nov 7 Nov 22 Dec 7 Dec 22 Jan 8 Feb 5
Nov 8 Nov 24 Dec 8 Dec 26 Jan 8 Feb 6
Nov 9 Nov 24 Dec 11 Dec 26 Jan 8 Feb 7
Nov 13 Nov 28 Dec 13 Dec 28 Jan 12 Feb 12
Nov 14 Nov 29 Dec 14 Dec 29 Jan 16 Feb 12
Nov 15 Nov 30 Dec 15 Jan 2 Jan 16 Feb 13
Nov 16 Dec 1 Dec 18 Jan 2 Jan 16 Feb 14
Nov 17 Dec 4 Dec 18 Jan 2 Jan 16 Feb 15
Nov 20 Dec 5 Dec 20 Jan 4 Jan 19 Feb 20
Nov 21 Dec 6 Dec 21 Jan 5 Jan 22 Feb 20
Nov 22 Dec 7 Dec 22 Jan 8 Jan 22 Feb 20
Nov 24 Dec 11 Dec 26 Jan 8 Jan 23 Feb 22
Nov 27 Dec 12 Dec 27 Jan 11 Jan 26 Feb 26
Nov 28 Dec 13 Dec 28 Jan 12 Jan 29 Feb 26
Nov 29 Dec 14 Dec 29 Jan 16 Jan 29 Feb 27
Nov 30 Dec 15 Jan 2 Jan 16 Jan 29 Feb 28
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