Notices. Notice

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BILLING CODE 4000-01-M DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. RP04-214-000] Cross Timbers Energy Services, Inc.; Complainant v. Transwestern Pipeline Company; Respondent; Notice of Complaint March 12, 2004. Take notice that on March 11, 2004, Cross Timbers Energy Services, Inc. (Cross Timbers) pursuant to rule 206 of practice and procedure of the Federal Energy Regulatory Commission, 18 CFR 385.206 (2003), filed a Complaint against Transwestern Pipeline Company (Transwestern). Cross Timbers alleges that Transwestern violated Commission policy, Section 5 of the Natural Gas Act

(NGA)15 U.S.C. 717d, and the Commission's regulations applicable to open-access transportation of natural gas, 18 CFR part 284, by charging Cross Timbers maximum firm transportation reservation charges for the month of May 2003 effectively converting Cross Timbers' firm service into interruptible service. Commission policy requires interstate pipelines to provide firm shippers with reservation charge credits during times of scheduled maintenance. Section 3.2 of Transwestern's FTS-1 Rate Schedule is inconsistent with this Commission policy. Cross Timbers requests that the Commission order Transwestern, pursuant to section 16 of NGS, 15 U.S.C. 717o, to make a monetary payment or provide billing adjustments or credits to Cross Timbers to prevent Transwestern's unjust enrichment. Cross Timbers also asks the Commission to require Transwestern to conform its tariff to Commission policy. Any person desiring to be heard or to protest this filing should file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with rules 211 and 214 of the Commission's rules of practice and procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a motion to intervene. The answer to the complaint and all comments, interventions or protests must be filed on or before the comment date. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at * http:// www.ferc.gov * using the “eLibrary” link. Enter the docket number excluding the last three digits in the docket number field to access the document. For assistance, please contact FERC Online Support at *FERCOnlineSupport@ferc.gov* or toll-free at

(866)208-3676, or for TTY, contact

(202)502-8659. The answer to the complaint, comments, protests and interventions may be filed electronically via the Internet in lieu of paper; *see* 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site under the “e-Filing” link. The Commission strongly encourages electronic filings. *Comment Date:* April 1, 2004. Linda Mitry, Acting Secretary. [FR Doc. E4-611 Filed 3-17-04; 8:45 am] BILLING CODE 6717-01-P DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Project No. 11858-002] Elsinore Municipal Water District and Nevada Hydro Company, Inc.; Notice Extending Deadline for Submitting Additional Study Requests March 12, 2004. Take notice that the date for filing study requests has been extended for the Lake Elsinore Advanced Pumped Storage Project, FERC Project No. 11858-02. On February 2, 2004, Elsinore Municipal Water District and the Nevada Hydro Company, Inc. filed a license application for a major unconstructed project that would be located on Lake Elsinore and San Juan Creek, in the Town of Lake Elsinore, Riverside County, California. In a notice tendering the license application for filing and soliciting additional study requests issued February 10, 2004, the Commission set the deadline for filing additional study requests as April 2, 2004. However, some of the consulted parties were not provided with a copy of the application by the applicant as set forth in the Commission's regulations. 1 Because the applicant will have just finished mailing the application to the consulted agencies and tribes as of March 12, 2004, we are extending the deadline for filing additional study requests to give all consulted parties a full 60-day period to review the application. 1 *See* 18 CFR 4.38(d)(1). The deadline for filing additional study requests and requests for cooperating agency status is now May 11, 2004. All documents (original and eight copies) should be filed with: Magalie R. Salas, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. The Commission's rules of practice require all intervenors filing documents with the Commission to serve a copy of that document on each person on the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency. Additional study requests and requests for cooperating agency status may be filed electronically via the Internet in lieu of paper. The Commission strongly encourages electronic filings. *See* 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site ( *http://www.ferc.gov* ) under the “e-Filing” link. Linda Mitry, Acting Secretary. [FR Doc. E4-613 Filed 3-17-04; 8:45 am] BILLING CODE 6717-01-P DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. AD04-4-000] Panel Member List for Hydropower Licensing Study Dispute Resolution; Notice Requesting Applications for Panel Member List for Hydropower Licensing Study Dispute Resolution March 12, 2004. This notice requests applications from those interested in being listed as potential panel members to assist in the Federal Energy Regulatory Commission's (Commission) study dispute resolution process for the integrated licensing process for hydropower projects. Background The Commission's final rule revising its regulations pertaining to hydroelectric licensing under the Federal Power Act encourages informal resolution of study disagreements. In cases where this is not successful, a formal study dispute resolution process is available for State and Federal agencies or Indian tribes with mandatory conditioning authority. 1 1 *See* § 5.14 of the final rule, which may be viewed on the Commission's Web site at *http://www.ferc.gov/home/Order2002.pdf* , and *see* excerpted attachment describing the formal dispute resolution process. The final rule provides that the disputed study must be submitted to a dispute resolution panel consisting of a person from Commission staff, a person from the agency or Indian tribe referring the dispute to the Commission, and a third person selected by the other two panelists from a pre-established list of persons with expertise in the disputed resource area. 2 The third panel member

(TPM)will serve without compensation, except for certain allowable travel expenses to be borne by the Commission (31 CFR 301). 2 These persons must not be otherwise involved with the proceeding. The role of the panel members is to make a finding, with respect to each disputed study request, on the extent to which each study criteria set forth in the regulations is or is not met, 3 and why. The panel will then make a recommendation to the Director of the Office of Energy Projects based on the panel's findings. 3 *See* § 5.9 of the final rule. TPMs can only be selected from a list of qualified persons (TPM List) that is developed and maintained by the Commission. Each qualified panel member will be listed by area(s) and sub-area(s) of technical expertise, for example Fisheries Resources—Instream flow. The TPM list will be available to the public on the Commission's web site. All individuals submitting their applications to the Commission for consideration must meet the Commission's qualifications. Application Contents The applicant should describe in detail his/her qualifications in items 1-4 listed below. 1. Technical expertise, including education and experience in each resource area and sub-area for which the applicant wishes to be considered: • Aquatic resources: • Water quality; • Instream flows; • Fish passage; • Macroinvertebrates; • Threatened and endangered species; • General. • Terrestrial resources: • Wildlife biology; • Botany; • Wetlands ecology; • Threatened and endangered species; • General. • Cultural resources. • Recreational resources: • Whitewater boating; • General. • Land use: • Shoreline management; • Visual/aesthetics; • General. • Geology: • Geomorphology; • Erosion; • General. • Socio-economics. • Engineering: • Civil engineering; • Hydraulic engineering; • Electrical engineering; • General. 2. Knowledge of the effects of construction and operation of hydroelectric projects. 3. Working knowledge of laws relevant to expertise, such as: the Fish and Wildlife Coordination Act, the Endangered Species Act, the Clean Water Act, the Coastal Zone Management Act, the Wild and Scenic Rivers Act, the Federal Power Act or other applicable laws. 4. Ability to promote constructive communication about a disputed study. How To Submit Applications Applicants must submit their applications along with the names and contact information of three references. Applicants will be individually notified of the Commission's decision. DATES: The application period closes on May 28, 2004. Additional future application periods may be announced by the Commission. ADDRESSES: Applications must be filed electronically via the Internet. See the instructions on the Commission's Web site ( *http://www.ferc.gov* ) under the “e-Filing” link. Applications should reference “DOCKET No. AD04-4-000, NOTICE REQUESTING APPLICATIONS FOR PANEL MEMBER LIST FOR HYDROPOWER LICENSING STUDY DISPUTE RESOLUTION.” *Other Information:* Requests submitted must be in Word, Times New Roman 13 pt. font, and must not be longer than 10 pages in length. Complete individual contact information must be provided, as formal interviews may be conducted either face to face or via teleconference as necessary prior to establishing the TPM List. FOR FURTHER INFORMATION CONTACT: Lon Crow, Federal Energy Regulatory Commission, Office of Energy Projects, 888 First Street, NE., Washington, DC 20426;

(202)502-8749; *lon.crow@ferc.gov* . Linda Mitry, Acting Secretary. [FR Doc. E4-620 Filed 3-17-04; 8:45 am] BILLING CODE 6717-01-P DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. CP04-57-000] Southern Star Central Gas Pipeline, Inc.; Notice of Intent to Prepare an Environmental Assessment for the Proposed Abandonment of the Carter-Waters Pipeline and Request for Comments on Environmental Issues March 12, 2004. The staff of the Federal Energy Regulatory Commission (FERC or Commission) will prepare an environmental assessment

(EA)that will discuss the environmental impacts of a project involving the abandonment of 3.15 miles of the Carter-Waters 4-inch-diameter pipeline XS-6 and appurtenances and one domestic customer tap by Southern Star Central Gas Pipeline, Inc. (Southern Star) in Platte County, Missouri. 1 This EA will be used by the Commission in its decision-making process to determine whether the project is in the public convenience and necessity. 1 Southern Star's application was filed with the Commission under section 7 of the Natural Gas Act and part 157 of the Commission's regulations. A fact sheet prepared by the FERC entitled “An Interstate Natural Gas Facility On My Land? What Do I Need To Know?” was attached to the project notice Southern Star provided to landowners. This fact sheet addresses a number of typically asked questions, including the use of eminent domain and how to participate in the Commission's proceedings. It is available for viewing on the FERC Internet Web site ( *http://www.ferc.gov* ). Summary of the Proposed Project Southern Star seeks authority to abandon in place and reclaim approximately 3.15 miles of the Carter-Waters 4-inch-diameter pipeline XS-6 and appurtenances and one domestic customer tap in Platte County, Missouri. About 1.53 miles would be removed and sold for scrap. The remaining 1.62 miles would be abandoned in place. The section of pipeline proposed to be abandoned lies parallel to Southern Star's existing Dearborn 6-inch pipeline XS-7 and is in Platte County, Missouri. Abandonment in place is proposed for areas where Southern Star believes land restoration to original condition would be difficult, *e.g.* , pasture, terraces, creeks, and heavily wooded areas. These sections would be cut and capped causing minimal ground disturbance and minor interruption of land use. The remaining sections of the pipeline would be reclaimed and the land would be backfilled and restored to its prior condition. To facilitate pipe removal, Southern Star would utilize the existing right-of-way, which is 66 feet wide. Approximately 12.24 acres of right-of-way would be temporarily affected. The general location of the project facilities is shown in appendix 1. 2 2 The appendices referenced in this notice are not being printed in the **Federal Register** . Copies of all appendices, other than appendix 1 (maps), are available on the Commission's Web site at the “eLibrary” link or from the Commission's Public Reference and Files Maintenance Branch, 888 First Street, NE., Washington, DC 20426, or call

(202)502-8371. For instructions on connecting to eLibrary refer to the last page of this notice. Copies of the appendices were sent to all those receiving this notice in the mail. Land Requirements for Abandonment To facilitate pipe removal, Southern Star plans to utilize the existing right-of-way, which is 66 feet wide. After abandonment, either in place or by removal, Southern Star would relinquish the right-of-way to the landowner. Pipeline abandoned in place would also become the property of the landowner. Temporary access to the right-of-way would be via field roads and existing rock paved roads along the first segment of the pipeline to be removed. Two options for access are proposed. Option 1 would affect 0.67 acre and Option 2 would affect 0.79 acre. A total of approximately 12.24 acres of right-of-way would be temporarily affected by the project. The EA Process The National Environmental Policy Act

(NEPA)requires the Commission to take into account the environmental impacts that could result from an action whenever it considers the issuance of a Certificate of Public Convenience and Necessity. NEPA also requires us 3 to discover and address concerns the public may have about proposals. This process is referred to as “scoping”. The main goal of the scoping process is to focus the analysis in the EA on the important environmental issues. By this Notice of Intent, the Commission staff requests public comments on the scope of the issues it will address in the EA. All comments received are considered during the preparation of the EA. State and local government representatives are encouraged to notify their constituents of this proposed action and encourage them to comment on their areas of concern. 3 “We”, “us”, and “our” refer to the environmental staff of the Office of Energy Projects (OEP). The EA will discuss impacts that could occur as a result of the construction activities associated with the removal of the pipeline under these general headings: • Geology and soils; • Land use; • Water resources, fisheries, and wetlands; • Cultural resources; • Vegetation and wildlife; • Air quality and noise. We will also evaluate possible abandonment alternatives to the proposed project or portions of the project, and make recommendations on how to lessen or avoid impacts on the various resource areas. Our independent analysis of the issues will be in the EA. Depending on the comments received during the scoping process, the EA may be published and mailed to Federal, State, and local agencies, public interest groups, interested individuals, affected landowners, newspapers, libraries, and the Commission's official service list for this proceeding. A comment period will be allotted for review if the EA is published. We will consider all comments on the EA before we make our recommendations to the Commission. To ensure your comments are considered, please carefully follow the instructions in the public participation section. Currently Identified Environmental Issues One of the issues identified that we think deserves attention based on a preliminary review of the abandonment of facilities and the environmental information provided by Southern Star is the concern expressed by a landowner about abandoning line segments in place at stream crossings. In order to avoid disturbance of stream banks and the associated riparian zone and to eliminate the need for stream bank restoration, Southern Star plans to abandon the pipeline in place where it crosses stream channels. Public Participation You can make a difference by providing us with your specific comments or concerns about the project. By becoming a commenter, your concerns will be addressed in the EA and considered by the Commission. You should focus on the potential environmental effects of the proposal, alternatives to the proposal, and measures to avoid or lessen environmental impact. The more specific your comments, the more useful they will be. Please carefully follow these instructions to ensure that your comments are received in time and properly recorded: • Send an original and two copies of your letter to: Magalie R. Salas, Secretary, Federal Energy Regulatory Commission, 888 First St., NE., Room 1A, Washington, DC 20426. • Label one copy of the comments for the attention of Gas Branch 2. • Reference Docket No. CP04-57-000. • Mail your comments so that they will be received in Washington, DC on or before April 12, 2004. Please note that we are continuing to experience delays in mail deliveries from the U.S. Postal Service. As a result, we will include all comments that we receive within a reasonable time frame in our environmental analysis of this project. However, the Commission strongly encourages electronic filing of any comments or interventions or protests to this proceeding. *See* 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site at *http://www.ferc.gov* under the “e-Filing” link and the link to the User's Guide. Before you can file comments you will need to create a free account which can be created on-line. Becoming an Intervenor In addition to involvement in the EA scoping process, you may want to become an official party to the proceeding known as an “intervenor”. Intervenors play a more formal role in the process. Among other things, intervenors have the right to receive copies of case-related Commission documents and filings by other intervenors. Likewise, each intervenor must provide 14 copies of its filings to the Secretary of the Commission and must send a copy of its filings to all other parties on the Commission's service list for this proceeding. If you want to become an intervenor you must file a motion to intervene according to Rule 214 of the Commission's rules of practice and procedure (18 CFR 385.214) ( *see* appendix 2). 4 Only intervenors have the right to seek rehearing of the Commission's decision. 4 Interventions may also be filed electronically via the Internet in lieu of paper. *See* the previous discussion on filing comments electronically. Affected landowners and parties with environmental concerns may be granted intervenor status upon showing good cause by stating that they have a clear and direct interest in this proceeding which would not be adequately represented by any other parties. You do not need intervenor status to have your environmental comments considered. Environmental Mailing List An effort is being made to send this notice to all individuals, organizations, and government entities interested in and/or potentially affected by the proposed project. This includes all landowners whose property may be used temporarily for project purposes, or who own homes within distances defined in the Commission's regulations of certain aboveground facilities. By this notice we are also asking governmental agencies, especially those in appendix 3, to express their interest in becoming cooperating agencies for the preparation of the EA. Additional Information Additional information about the project is available from the Commission's Office of External Affairs, at 1-866-208-FERC or on the FERC Internet Web site ( *http://www.ferc.gov* ) using the eLibrary link. Click on the eLibrary link, click on “General Search” and enter the docket number excluding the last three digits in the Docket Number field. Be sure you have selected an appropriate date range. For assistance with eLibrary, the eLibrary helpline can be reached at 1-866-208-3676, TTY

(202)502-8659, or at *FERConlinesupport@ferc.gov* . The eLibrary link on the FERC Internet Web site also provides access to the texts of formal documents issued by the Commission, such as orders, notices, and rulemakings. In addition, the Commission now offers a free service called eSubscription which allows you to keep track of all formal issuances and submittals in specific dockets. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries and direct links to the documents. Go to *http://www.ferc.gov/esubscribenow.htm* . Finally, public meetings or site visits will be posted on the Commission's calendar located at * http://www.ferc.gov/ EventCalendar/EventsList.aspx * along with other related information. Linda Mitry, Acting Secretary. [FR Doc. E4-612 Filed 3-17-04; 8:45 am] BILLING CODE 6717-01-P DEPARTMENT OF ENERGY Federal Energy Regulatory Commission Notice of Intent to File Application For A New License March 12, 2004. Take notice that the following notice of intent has been filed with the Commission and is available for public inspection: a. *Type of Filing:* Notice of intent to file an application for new license. b. *Project No.:* 120. c. *Date Filed:* February 27, 2004. d. *Submitted by:* Southern California Edison Company. e. *Name of Project:* Big Creek No. 3 Hydroelectric Project. f. *Location:* The project is located in Fresno County, California, within the Sierra National Forest. The project is situated on the San Joaquin River with the nearest towns being Big Creek, Shaver Lake, North Fork, and Auberry. g. *Filed Pursuant to:* Section 15 of the Federal Power Act, 18 CFR 16.6. h. Pursuant to section 16.19 of the Commission's regulations, the licensee is required to make available the information described in section 16.7 of the regulations. Such information is available from the Northern Hydro Regional Office, 54205 Mountain Poplar Road, Big Creek, CA 93605, (559)-893-3611. i. *FERC Contact:* James Fargo, 202-502-6095, *james.fargo@ferc.gov* . j. *Expiration Date of Current License:* February 28, 2009. k. *Project Description:* The project consists of Dam 6 Forebay, a dam with a capacity of 993 acre-feet, Powerhouse No. 3 with five turbine generators with a total installed capacity of 174.45 megawatts, and the water conveyance system of unlined tunnels, steel piping, penstocks and valving. l. The licensee states its unequivocal intent to submit an application for a new license for Project No. 120. Pursuant to 18 CFR 16.9(b)(1) each application for a new license and any competing license applications must be filed with the Commission at least 24 months prior to the expiration of the existing license. All applications for license for this project must be filed by February 28, 2007. n. A copy of this filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at *http://www.ferc.gov* using the “eLibrary” link. Enter the docket number, excluding the last three digits in the docket number field to access the document. For assistance, contact FERC Online Support at *FERCOnlineSupport@ferc.gov* or toll-free at 1-866-208-3676, or TTY 202-502-8659. A copy is also available for inspection and reproduction at the address in item h above. o. Register online at *http://www.ferc.gov/docs-filing/esubscription.asp* to be notified via email of new filings and issuances related to this or other pending projects. For assistance, contact FERC Online Support as shown in the paragraph above. Linda Mitry, Acting Secretary. [FR Doc. E4-614 Filed 3-17-04; 8:45 am] BILLING CODE 6717-01-P DEPARTMENT OF ENERGY Federal Energy Regulatory Commission Notice of Application Accepted for Filing and Soliciting Comments, Motions to Intervene, and Protests March 12, 2004. Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection: a. *Type of Application:* Preliminary permit. b. *Project No.:* 12487-000. c. *Date Filed:* January 30, 2004. d. *Applicant:* Greensfields Irrigation District. e. *Name of Project:* Gibson Dam Hydroelectric Project. f. *Location:* The proposed project would be located at the Bureau of Reclamation's

(BOR)Gibson Dam, on the Sun River in Teton and Lewis and Clark Counties, Montana. g. *Filed Pursuant to:* Federal Power Act, 16 U.S.C. 791(a)-825(r). h. *Applicant Contacts:* Ed Everaert, Manager, Greensfields Irrigation District, P.O. Box 157, Fairfield, MT 59436,

(406)467-2533. i. *FERC Contact:* Mr. Robert Bell,

(202)502-6062. j. *Deadline for Filing Motions to Intervene, Protests and Comments:* 60 days from the issuance date of this notice. All documents (original and eight copies) should be filed with: Magalie R. Salas, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. Comments, protests, and interventions may be filed electronically via the Internet in lieu of paper; *see* 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site under the “e-Filing” link. The Commission strongly encourages electronic filings. Please include the project number (P-12487-000) on any comments or motions filed. The Commission's rules of practice and procedure require all interveners filing documents with the Commission to serve a copy of that document on each person in the official service list for the project. Further, if an intervener files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency. k. *Competing Application:* Project No. 12478-000; date filed: October 28, 2003; date issued: January 9, 2004; due date: March 9, 2004. l. *Description of Project:* The proposed run-of-river project using the BOR's existing Gibson Dam would consist of:

(1)a 100-foot-long, 10-foot-diameter steel penstock,

(2)a powerhouse containing two 8 megawatt generating units with a total installed capacity of 16 megawatts,

(3)a proposed 3-mile-long, 15 kilovolt transmission line, and

(4)appurtenant facilities. The project would have an annual generation of 45 gigawatt-hours. m. *Locations of Applications:* A copy of the application is available for inspection and reproduction at the Commission in the Public Reference Room, located at 888 First Street, NE., Room 2A, Washington DC 20426, or by calling

(202)502-8371. This filing may also be viewed on the Commission's Web site at *http://www.ferc.gov* using the “eLibrary” link. Enter the docket number excluding the last three digits in the docket number field to access the document. For assistance, call toll-free 1-866-208-3676 or e-mail *FERCOnlineSupport@ferc.gov* . For TTY, call

(202)502-8659. A copy is also available for inspection and reproduction at the address in item h. above. n. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission. o. *Competing Preliminary Permit* —Anyone desiring to file a competing application for preliminary permit for a proposed project must submit the competing application itself, or a notice of intent to file such an application, to the Commission on or before the specified comment date for the particular application ( *see* 18 CFR 4.36). Submission of a timely notice of intent allows an interested person to file the competing preliminary permit application no later than 30 days after the specified comment date for the particular application. A competing preliminary permit application must conform with 18 CFR 4.30(b) and 4.36. p. *Competing Development Application* —Any qualified development applicant desiring to file a competing development application must submit to the Commission, on or before a specified comment date for the particular application, either a competing development application or a notice of intent to file such an application. Submission of a timely notice of intent to file a development application allows an interested person to file the competing application no later than 120 days after the specified comment date for the particular application. A competing license application must conform with 18 CFR 4.30(b) and 4.36. q. *Notice of Intent* —A notice of intent must specify the exact name, business address, and telephone number of the prospective applicant, and must include an unequivocal statement of intent to submit, if such an application may be filed, either a preliminary permit application or a development application (specify which type of application). A notice of intent must be served on the applicant(s) named in this public notice. r. *Proposed Scope of Studies Under Permit* —A preliminary permit, if issued, does not authorize construction. The term of the proposed preliminary permit would be 36 months. The work proposed under the preliminary permit would include economic analysis, preparation of preliminary engineering plans, and a study of environmental impacts. Based on the results of these studies, the Applicant would decide whether to proceed with the preparation of a development application to construct and operate the project. s. *Comments, Protests, or Motions to Intervene* —Anyone may submit comments, a protest, or a motion to intervene in accordance with the requirements of rules of practice and procedure, 18 CFR 385.210, .211, .214. In determining the appropriate action to take, the Commission will consider all protests or other comments filed, but only those who file a motion to intervene in accordance with the Commission's rules may become a party to the proceeding. Any comments, protests, or motions to intervene must be received on or before the specified comment date for the particular application. t. *Filing and Service of Responsive Documents* —Any filings must bear in all capital letters the title “COMMENTS”, “NOTICE OF INTENT TO FILE COMPETING APPLICATION”, “COMPETING APPLICATION”, “PROTEST”, or “MOTION TO INTERVENE”, as applicable, and the Project Number of the particular application to which the filing refers. Any of the above-named documents must be filed by providing the original and the number of copies provided by the Commission's regulations to: The Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. An additional copy must be sent to Director, Division of Hydropower Administration and Compliance, Federal Energy Regulatory Commission, at the above-mentioned address. A copy of any notice of intent, competing application or motion to intervene must also be served upon each representative of the Applicant specified in the particular application. Comments, protests and interventions may be filed electronically via the Internet in lieu of paper; *see* 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site under the “e-Filing” link. The Commission strongly encourages electronic filings u. *Agency Comments* —Federal, State, and local agencies are invited to file comments on the described application. A copy of the application may be obtained by agencies directly from the Applicant. If an agency does not file comments within the time specified for filing comments, it will be presumed to have no comments. One copy of an agency's comments must also be sent to the Applicant's representatives. Linda Mitry, Acting Secretary. [FR Doc. E4-615 Filed 3-17-04; 8:45 am] BILLING CODE 6717-01-P DEPARTMENT OF ENERGY Federal Energy Regulatory Commission Notice of Application Accepted for Filing and Soliciting Motions to Intervene, Protests, and Comments March 12, 2004. Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection: a. *Type of Application:* Preliminary permit. b. *Project No.:* 12488-000. c. *Date Filed:* February 19, 2004. d. *Applicant:* Aces Wild Farm and Ranch. e. *Name of Project:* Wright Forge Pond Project. f. *Location:* On the Winnetuxet River, in Plympton County, Massachusetts, utilizing the Wright Forge Pond Dam owned by the Town of Plympton, Massachusetts. g. *Filed Pursuant to:* Federal Power Act, 16 U.S.C. 791(a)-825(r). h. *Applicant Contact:* Ms. Patricia Renee Pina, President, Aces Wild Farm and Ranch, 59 Parsonage Road, Plympton, MA 02367,

(781)585-3243. i. *FERC Contact:* Robert Bell,

(202)502-6062. j. *Deadline for Filing Comments, Protests, and Motions to Intervene:* 60 days from the issuance date of this notice. Internet in lieu of paper; *see* 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site under the “e-Filing” link. The Commission strongly encourages electronic filings. Please include the project number (P-12488-000) on any comments or motions filed. The Commission's rules of practice and procedure require all interveners filing documents with the Commission to serve a copy of that document on each person in the official service list for the project. Further, if an intervener files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency. k. *Description of Project:* The proposed project would consist of the following:

(1)An existing 10-foot-high, 150-foot-long rockfill dam;

(2)a pond with a surface area of 7 acres and a gross storage of 1.9 million cubic feet;

(3)an 18-inch-diameter, 12-foot-long penstock;

(4)a powerhouse containing one 2500 kilowatt turbine with a total capacity of 5 megawatts;

(5)a concrete pad tailrace from the powerhouse to the Winnetuxet River; and

(6)a 400-foot-long, 13.8 kilovolt transmission line. Applicant estimates that the average annual generation would be 26 kilowatt-hours and would be sold to a local utility. l. *Locations of Applications:* A copy of the application is available for inspection and reproduction at the Commission in the Public Reference Room, located at 888 First Street, NE., Room 2A, Washington, DC 20426, or by calling

(202)502-8659. A copy is also available for inspection and reproduction at the address in item h. above. m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission. n. *Competing Preliminary Permit* —Anyone desiring to file a competing application for preliminary permit for a proposed project must submit the competing application itself, or a notice of intent to file such an application, to the Commission on or before the specified comment date for the particular application ( *see* 18 CFR 4.36). Submission of a timely notice of intent allows an interested person to file the competing preliminary permit application no later than 30 days after the specified comment date for the particular application. A competing preliminary permit application must conform with 18 CFR 4.30(b) and 4.36. o. *Competing Development Application* —Any qualified development applicant desiring to file a competing development application must submit to the Commission, on or before a specified comment date for the particular application, either a competing development application or a notice of intent to file such an application. Submission of a timely notice of intent to file a development application allows an interested person to file the competing application no later than 120 days after the specified comment date for the particular application. A competing license application must conform with 18 CFR 4.30(b) and 4.36. p. *Notice of Intent* —A notice of intent must specify the exact name, business address, and telephone number of the prospective applicant, and must include an unequivocal statement of intent to submit, if such an application may be filed, either a preliminary permit application or a development application (specify which type of application). A notice of intent must be served on the applicant(s) named in this public notice. q. *Proposed Scope of Studies Under Permit* —A preliminary permit, if issued, does not authorize construction. The term of the proposed preliminary permit would be 36 months. The work proposed under the preliminary permit would include economic analysis, preparation of preliminary engineering plans, and a study of environmental impacts. Based on the results of these studies, the Applicant would decide whether to proceed with the preparation of a development application to construct and operate the project. r. *Comments, Protests, or Motions to Intervene* —Anyone may submit comments, a protest, or a motion to intervene in accordance with the requirements of rules of practice and procedure, 18 CFR 385.210, .211, .214. In determining the appropriate action to take, the Commission will consider all protests or other comments filed, but only those who file a motion to intervene in accordance with the Commission's rules may become a party to the proceeding. Any comments, protests, or motions to intervene must be received on or before the specified comment date for the particular application. Comments, protests and interventions may be filed electronically via the Internet in lieu of paper; *see* 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site under “e-filing” link. The Commission strongly encourages electronic filing. s. *Filing and Service of Responsive Documents* —Any filings must bear in all capital letters the title “COMMENTS”, “RECOMMENDATIONS FOR TERMS AND CONDITIONS”, “PROTEST”, OR “MOTION TO INTERVENE”, as applicable, and the Project Number of the particular application to which the filing refers. Any of the above-named documents must be filed by providing the original and the number of copies provided by the Commission's regulations to: the Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. A copy of any motion to intervene must also be served upon each representative of the Applicant specified in the particular application. t. *Agency Comments* —Federal, State, and local agencies are invited to file comments on the described application. A copy of the application may be obtained by agencies directly from the Applicant. If an agency does not file comments within the time specified for filing comments, it will be presumed to have no comments. One copy of an agency's comments must also be sent to the Applicant's representatives. Linda Mitry, Acting Secretary. [FR Doc. E4-616 Filed 3-17-04; 8:45 am] BILLING CODE 6717-01-P DEPARTMENT OF ENERGY Federal Energy Regulatory Commission Notice of Intent to File Application for a New License March 12, 2004. Take notice that the following notice of intent has been filed with the Commission and is available for public inspection: a. *Type of Filing:* Notice of intent to file an application for new license. b. *Project No.:* 2175. c. *Date Filed:* February 27, 2003. d. *Submitted by:* Southern California Edison Company. e. *Name of Project:* Big Creek Nos. 1 and 2 Hydroelectric Project. f. *Location:* The project is located in Fresno County, California, within the Sierra National Forest. The project is situated along Big Creek, a tributary to the San Joaquin River. The nearest communities are Big Creek, Shaver Lake, North Fork, and the City of Fresno. g. *Filed Pursuant to:* Section 15 of the Federal Power Act, 18 CFR 16.6. h. Pursuant to section 16.19 of the Commission's regulations, the licensee is required to make available the information described in section 16.7 of the regulations. Such information is available from the Northern Hydro Regional Office, 54205 Mountain Poplar Road, Big Creek, CA 93605, (559)-893-3611. i. *FERC Contact:* James Fargo, 202-502-6095. *james.fargo@ferc.gov* . j. *Expiration Date of Current License:* February 28, 2009. k. *Project Description:* The project consist of Powerhouse No. 1 and 2, combining eight turbine/generation units, water conveyance systems for both powerhouses, unlined tunnels, steel piping, and penstocks. l. The licensee states its unequivocal intent to submit an application for a new license for Project No. 120 Pursuant to 18 CFR 16.9(b)(1) each application for a new license and any competing license applications must be filed with the Commission at least 24 months prior to the expiration of the existing license. All applications for license for this project must be filed by February 28, 2007. n. A copy of this filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at *http://www.ferc.gov* using the “eLibrary” link. Enter the docket number to access the document excluding the last three digits in the docket number field to access the document. For assistance, contact FERC Online Support at *FERCOnlineSupport@ferc.gov* or toll-free at 1-866-208-3676, or TTY 202-502-8659. A copy is also available for inspection and reproduction at the address in item h above. o. Register online at *http://www.ferc.gov/docs-filing/esubscription.asp* to be notified via email of new filings and issuances related to this or other pending projects. For assistance, contact FERC Online Support as shown in the paragraph above. Linda Mitry, Acting Secretary. [FR Doc. E4-617 Filed 3-17-04; 8:45 am] BILLING CODE 6717-01-P DEPARTMENT OF ENERGY Federal Energy Regulatory Commission Notice of Intent to File License Application, Filing of Pre-Application Document, Commencement of Licensing Proceeding, Scoping, Solicitation of Comments on the PAD and Scoping Document, and Identification Issues and Associated Study Requests March 12, 2004. a. *Type of Filing:* Notice of intent to file license application for a new license and commencing licensing proceeding. b. *Project No.:* 2237-013. c. *Date Filed:* January 15, 2004. d. *Submitted by:* Georgia Power Company. e. *Name of Project:* Morgan Falls Hydroelectric. f. *Location:* On the Chattahoochee River, in Fulton and Cobb Counties, Georgia. The project occupies 6 acres of United States lands under the jurisdiction of the National Park Service. g. *Filed Pursuant to:* 18 CFR part 5 of the Commission's regulations. h. *Potential Applicant Contact:* Chris M. Hobson, Vice President, Georgia Power Company, Environmental Affairs, 241 Ralph McGill Boulevard, N.E., BIN 10221, Atlanta, GA 30308-3374 Attn. George Martin. i. *FERC Contact:* Janet Hutzel at

(202)502-8675 or e-mail at *janet.hutzel@ferc.gov* . j. We are asking Federal, State, local, and tribal agencies with jurisdiction and/or special expertise with respect to environmental issues to cooperate with us in the preparation of the environmental document. Agencies who would like to request cooperating status should follow the instructions for filing comments described in paragraph o. below. k. With this notice, we are initiating informal consultation with:

(a)the U.S. Fish and Wildlife Service and/or NOAA Fisheries under section 7 of the Endangered Species Act and the joint agency regulations thereunder at 50 CFR part 402 and

(b)the State Historic Preservation Officer, as required by section 106, National Historical Preservation Act, and the implementing regulations of the Advisory Council on Historic Preservation at 36 CFR 800.2. l. With this notice, we are designating Georgia Power Company as the Commission's non-Federal representative for carrying out informal consultation, pursuant to section 7 of the Endangered Species Act and section 106 of the National Historic Preservation Act. m. Georgia Power Company filed a Pre-Application Document (PAD; including a proposed process plan and schedule) with the Commission, pursuant to 18 CFR 5.6 of the Commission's regulations. n. A copy of the PAD is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site ( *http://www.ferc.gov* ), using the “eLibrary” link. Enter the docket number, excluding the last three digits in the docket number field to access the document. For assistance, contact FERC Online Support at *FERCONlineSupport@ferc.gov* or toll free at 1-866-208-3676, of for TTY,

(202)502-8659. A copy is also available for inspection and reproduction at the address in paragraph h. Register online at *http://ferc.gov/esubscribenow.htm* to be notified via e-mail of new filing and issuances related to this or other pending projects. For assistance, contact FERC Online Support. o. With this notice, we are soliciting comments on the PAD and Scoping Document 1 (SD1), as well as study requests. All comments on the PAD and SD1, and study requests should be sent to the address above in paragraph h. In addition, all comments on the PAD and SD1, study requests, requests for cooperating agency status, and all communications to and from Commission staff related to the merits of the potential application (original and eight copies) must be filed with the Commission at the following address: Magalie R. Salas, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. All filings with the Commission must include on the first page, the project name (Morgan Falls Hydroelectric Project) and number (P-2237-013), and bear the heading “Comments on Pre-Application Document,” “Study Requests,” “Comments on Scoping Document 1,” “Request for Cooperating Agency Status,” or “Communications to and from Commission Staff.” Any individual or entity interested in submitting study requests, commenting on the PAD or SD1, and any agency requesting cooperating status must do so by May 14, 2004. Comments on the PAD and SD1, study requests, requests for cooperating agency status, and other permissible forms of communications with the Commission may be filed electronically via the Internet in lieu of paper. The Commission strongly encourages electronic filings. *See* 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site ( *http://www.ferc.gov* ) under the “e-filing” link. p. At this time, the Commission intends to prepare an Environmental Assessment on the project, in accordance with the National Environmental Policy Act. Scoping Meetings Commission staff will hold two scoping meetings in the vicinity of the project at the time and place noted below. The daytime meeting will focus on resource agency, Indian tribes, and non-governmental organization concerns, while the evening meeting is primarily for receiving input from the public. We invite all interested individuals, organizations, and agencies to attend one or both of the meetings, and to assist staff in identifying particular study needs, as well as the scope of environmental issues to be addressed in the environmental document. The times and locations of these meetings are as follows: Daytime Scoping Meeting *Date:* Wednesday, April 14, 2004. *Time:* 1 p.m. *Location:* Chattahoochee Nature Center, 9135 Willeo Road, Roswell, Georgia, 30075; phone:

(770)992-2055. Evening Scoping Meeting *Date:* Wednesday, April 14, 2004. *Time:* 6 p.m. *Location:* Chattahoochee Nature Center, 9135 Willeo Road, Roswell, Georgia, 30075; phone:

(770)992-2055. Scoping Document 1 (SD1), which outlines the subject areas to be addressed in the environmental document, was mailed to the individuals and entities on the Commission's mailing list. Copies of SD1 will be available at the scoping meetings, or may be viewed on the Web at *http://www.ferc.gov* , using the “eLibrary” link. Follow the directions for accessing information in paragraph n. Based on all oral and written comments, a Scoping Document 2

(SD2)may be issued. SD2 may include a revised process plan and schedule, as well as a list of issues, identified through the scoping process. Site Visit The potential applicant and Commission staff will conduct a site visit of the project on Wednesday, April 14, 2004, starting at 9:30 a.m. All participants should meet at Chattahoochee Nature Center, located at 9135 Willeo Road, Roswell, Georgia, 30075. All participants are responsible for their own transportation. Anyone with questions about the site visit should contact Mr. George Martin of Georgia Power at

(404)506-1357 on or before April 9, 2004. Meeting Objectives At the scoping meetings, staff will:

(1)Initiate scoping of the issues;

(2)review and discuss existing conditions and resource management objectives;

(3)review and discuss existing information and identify preliminary information and study needs;

(4)review and discuss the process plan and schedule for pre-filing activity that incorporates the time frames provided for in part 5 of the Commission's regulations and, to the extent possible, maximizes coordination of Federal, State, and tribal permitting and certification processes; and

(5)discuss the appropriateness of any Federal or State agency or Indian tribe acting as a cooperating agency for development of an environmental document. Meeting Procedures The meetings will be recorded by a stenographer and will become part of the formal record of the Commission proceeding on the project. Linda Mitry, Acting Secretary. [FR Doc. E4-618 Filed 3-17-04; 8:45 am] BILLING CODE 6717-01-P DEPARTMENT OF ENERGY Federal Energy Regulatory Commission Notice of Intent To File Application for a New License March 12, 2004. Take notice that the following notice of intent has been filed with the Commission and is available for public inspection: a. *Type of Filing:* Notice of intent to file an application for new license. b. *Project No.:* 67. c. *Date Filed:* February 27, 2004. d. *Submitted by:* Southern California Edison Company. e. *Name of Project:* Big Creek Nos. 2A, 8, and Eastwood Hydroelectric Project. f. *Location:* The project is located in Fresno County, California, within the Sierra National Forrest. The project facilities are situated on the South Fork San Joaquin River, Big Creek, and Stevenson Creek. The nearest communities are the towns of Big Creek and Shaver Lake. g. *Filed Pursuant to:* Section 15 of the Federal Power Act, 18 CFR 16.6. h. Pursuant to section 16.19 of the Commission's regulations, the licensee is required to make available the information described in section 16.7 of the regulations. Such information is available from the Northern Hydro Regional Office, 54205 Mountain Poplar Road, Big Creek, CA 93605, (559)-893-3611. i. *FERC Contact:* James Fargo, 202-502-6095, *james.fargo@ferc.gov* . j. *Expiration Date of Current License:* February 28, 2009. k. *Project Description:* The project consists of three powerhouses, two major reservoirs, four moderate impoundments, six dams, nine small diversions, seven water conveyance systems, and a transmission line. Two major reservoirs: Florence Lake and Dam with a capacity of 64,406 acre-feet and Shaver Lake and Dam with a capacity of 135,568 acre-feet. The three powerhouses have a total installed capacity of 384.8 megawatts. l. The licensee states its unequivocal intent to submit an application for a new license for Project No. 67. Pursuant to 18 CFR 16.9(b)(1) each application for a new license and any competing license applications must be filed with the Commission at least 24 months prior to the expiration of the existing license. All applications for license for this project must be filed by February 28, 2007. n. A copy of this filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at *http://www.ferc.gov* using the “eLibrary” link. Enter the docket number to access the document excluding the last three digits in the docket number field to access the document. For assistance, contact FERC Online Support at *FERCOnlineSupport@ferc.gov* or toll-free at 1-866-208-3676, or TTY 202-502-8659. A copy is also available for inspection and reproduction at the address in item h above. o. Register online at *http://www.ferc.gov/docs-filing/esubscription.asp* to be notified via e-mail of new filings and issuances related to this or other pending projects. For assistance, contact FERC Online Support as shown in the paragraph above. Linda Mitry, Acting Secretary. [FR Doc. E4-619 Filed 3-17-04; 8:45 am] BILLING CODE 6717-01-P ENVIRONMENTAL PROTECTION AGENCY [OPPT-2004-0076; FRL-7347-4] National Advisory Committee for Acute Exposure Guideline Levels for Hazardous Substances; Notice of Public Meeting and Notice of Proposed AEGL Chemical AGENCY: Environmental Protection Agency (EPA). ACTION: Notice. SUMMARY: A meeting of the National Advisory Committee for Acute Exposure Guideline Levels for Hazardous Substances (NAC/AEGL Committee) will be held on April 19-21, 2004, in Washington, DC. At this meeting, the NAC/AEGL Committee will address, as time permits, the various aspects of the acute toxicity and the development of Acute Exposure Guideline Levels (AEGLs) for the following chemicals: Acetone, acrolein, boron trichloride, bromine, butyl acrylate, carbon disulfide, chlorine trifluoride, chloroform, *N* , *N* -dimethylformamide, 2,4-dinitroaniline, 1,4-dioxane, disulfur dichloride, epichlorohydrin, ethyl acrylate, methacrylic acid, methanol, methyl bromide, methyl chloride, methyl 2-chloroacrylate, methyl mercaptan, methyl methacrylate, nitric acid, nitric oxide, nitrogen dioxide, peracetic acid, phenol, propylene oxide, sulfur dioxide, tetrachloroethylene, tetranitromethane, trichloroethylene, trimethylchlorosilane, and toluene. DATES: A meeting of the NAC/AEGL Committee will be held from 10 a.m. to 5:30 p.m., on Monday, April 19, 2004; 8:30 a.m. to 5:30 p.m., on Tuesday, April 20, 2004; and from 8 a.m. to noon, on Wednesday, April 21, 2004. ADDRESSES: The meeting will be held at the U.S. Department of Labor, Room numbers C5515 1A and 1B, 200 Constitution Avenue, NW., Washington, DC 20210. FOR FURTHER INFORMATION CONTACT: *For general information contact* : Colby Lintner, Regulatory Coordinator, Environmental Assistance Division (7408M), Office of Pollution Prevention and Toxics, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number:

(202)554-1404; e-mail address: *TSCA-Hotline@epa.gov* . *For technical information contact* : Paul S. Tobin, Designated Federal Officer (DFO), Economics, Exposure, and Technology Division (7406M), Office of Pollution Prevention and Toxics, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number:

(202)564-8557; e-mail address: *tobin.paul@epa.gov* . SUPPLEMENTARY INFORMATION: I. General Information A. Does this Action Apply to Me? This action is directed to the public in general. This action may be of particular interest to anyone who may be affected if the AEGL values are adopted by government agencies for emergency planning, prevention, or response programs, such as EPA's Risk Management Program under the Clean Air Act and amendments section 112r. It is possible that other Federal agencies besides EPA, as well as State agencies and private organizations, may adopt the AEGL values for their programs. As such, the Agency has not attempted to describe all the specific entities that may be affected by this action. If you have any questions regarding the applicability of this action to a particular entity, consult the DFO listed under FOR FURTHER INFORMATION CONTACT . B. How Can I Get Copies of this Document and Other Related Information? 1. *Docket.* EPA has established an official public docket for this action under docket identification

(ID)number OPPT-2004-0076. The official public docket consists of the documents specifically referenced in this action, any public comments received, and other information related to this action. Although a part of the official docket, the public docket does not include Confidential Business Information

(CBI)or other information whose disclosure is restricted by statute. The official public docket is the collection of materials that is available for public viewing at EPA's Docket Center, Rm. B102-Reading Room, EPA West, 1301 Constitution Ave., NW., Washington, DC. EPA's Docket Center is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. EPA's Docket Center Reading Room telephone number is

(202)566-1744 and the telephone number for the OPPT Docket, which is located in EPA's Docket Center, is

(202)566-0280. 2. *Electronic access* . You may access this **Federal Register** document electronically through the EPA Internet under the “ **Federal Register** ” listings at *http://www.epa.gov/fedrgstr/* . An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at *http://www.epa.gov/edocket/* to submit or view public comments, access the index listing of the contents of the official public docket, and to access those documents in the public docket that are available electronically. Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the docket facility identified in Unit I.B.1. Once in the system, select “search,” then key in the appropriate docket ID number. II. Meeting Procedures For additional information on the scheduled meeting, the agenda of the NAC/AEGL Committee, or the submission of information on chemicals to be discussed at the meeting, contact the DFO listed under FOR FURTHER INFORMATION CONTACT . The meeting of the NAC/AEGL Committee will be open to the public. Oral presentations or statements by interested parties will be limited to 10 minutes. Interested parties are encouraged to contact the DFO to schedule presentations before the NAC/AEGL Committee. Since seating for outside observers may be limited, those wishing to attend the meeting as observers are also encouraged to contact the DFO at the earliest possible date to ensure adequate seating arrangements. Inquiries regarding oral presentations and the submission of written statements or chemical-specific information should be directed to the DFO. III. Future Meetings Another meeting of the NAC/AEGL Committee is scheduled for June 14-16, 2004. List of Subjects Environmental protection, Chemicals, Hazardous substances, Health. Dated: March 9, 2004. Charles M. Auer, Director, Office of Pollution Prevention and Toxics. [FR Doc. E4-621 Filed 3-17-04; 8:45 am] BILLING CODE 6560-50-S FEDERAL DEPOSIT INSURANCE CORPORATION Intra-Agency Appeal Process: Guidelines for Appeals of Material Supervisory Determinations and Guidelines for Appeals of Deposit Insurance Assessment Determinations AGENCY: Federal Deposit Insurance Corporation. ACTION: Notice and request for comment. SUMMARY: The Federal Deposit Insurance Corporation (“FDIC”) proposes to revise its Guidelines for Appeals of Material Supervisory Determinations; these revisions are intended to enhance the Supervision Appeals Review Committee (“SARC”) process by reconstituting the SARC and modifying the procedures for appeals to the SARC. The FDIC also proposes to issue Guidelines for Appeals of Deposit Insurance Assessment Determinations, which will reconstitute the Assessment Appeals Committee (“AAC”), and will also set forth procedures for pursuing appeals to the AAC. These changes are intended to benefit insured institutions seeking review of material supervisory determinations and assessment determinations. DATES: Comments must be submitted on or before April 19, 2004. ADDRESSES: Interested parties are invited to submit written comments to the FDIC by any of the following methods: • Federal eRulemaking Portal: *http://www.regulations.gov.* Follow the instructions for submitting comments. • Agency Web site: *http://www.fdic.gov/regulations/laws/federal/propose.html.* Follow the instructions for submitting comments on the FDIC Web site. • E-mail: *comments@FDIC.gov.* Include “SARC/AAC Guidelines” in the subject line of the message. • Mail: Robert E. Feldman, Executive Secretary, Attention: Comments/Legal ESS, Federal Deposit Insurance Corporation, 550 17th Street, NW., Washington, DC 20429. • Hand Delivery/Courier: Comments may be hand-delivered to the guard station located at the rear of the FDIC's 17th Street building (accessible from F Street) on business days between 7 a.m. and 5 p.m. *Instructions:* All submissions received must include the agency name and use the title “SARC/AAC Guidelines”. The FDIC may post comments on its Internet site at: *http://www.fdic.gov/regulations/laws/federal/propose.html.* *Docket:* For access to the docket to read background documents or comments received, go to the FDIC Public Information Center, Room 100, 801 17th Street, NW., Washington, DC, between 9 a.m. and 4:30 p.m. on business days. FOR FURTHER INFORMATION CONCERNING THE SARC GUIDELINES CONTACT: Lisa K. Roy, Associate Director, Division of Supervision and Consumer Protection,

(202)898-3764; Christopher Bellotto, Counsel, Legal Division,

(202)898-3801, Federal Deposit Insurance Corporation, 550 17th St., NW., Washington, DC 20429. FOR FURTHER INFORMATION CONCERNING THE AAC GUIDELINES CONTACT: William V. Farrell, Chief, Assessment Management Section, Division of Finance,

(202)416-7156; Diane Ellis, Associate Director, Division of Insurance and Research,

(202)898-8978; Lisa K. Roy, Associate Director, Division of Supervision and Consumer Protection,

(202)898-3764; Christopher Bellotto, Counsel,

(202)898-3801, Legal Division, Federal Deposit Insurance Corporation, 550 17th Street, NW., Washington, DC 20429. SUPPLEMENTARY INFORMATION: The FDIC is publishing for notice and comment proposed revisions to the Guidelines for Appeals of Material Supervisory Determinations as well as proposed Guidelines for Appeals of Deposit Insurance Assessment Determinations. The FDIC considers it desirable in this instance to garner comments regarding these guidelines, although notice and comment rulemaking may not be employed in making future amendments. The proposed revised Guidelines for Appeals of Material Supervisory Determinations would be effective upon adoption and would supersede the FDIC's current Guidelines for Appeals of Material Supervisory Determinations that were adopted by the FDIC's Board of Directors on March 21, 1995. The proposed guidelines would incorporate changes to the composition of the SARC, reducing it from five to three voting members, and would make changes to the existing procedures governing SARC appeals. These amendments include new rules under which the FDIC's Division of Supervision and Consumer Protection (“DSC”) would issue written decisions if it denies requests for review of material supervisory determinations; if dissatisfied with the division's determination, institutions would decide for themselves whether to appeal to the SARC; and SARC decisions would be published, with exempt material redacted. The types of determinations that are eligible for review by the SARC and the standards by which such appeals are decided would remain unchanged. The AAC provides for FDIC appellate review of assessment payment computation and assessment risk classification determinations. The proposed Guidelines for Appeals of Deposit Insurance Assessment Determinations will change the composition of the AAC, reducing it from seven to five voting members, and will set forth procedures to be followed by insured depository institutions that choose to appeal adverse assessment determinations they have received from the appropriate FDIC division. As with the SARC, AAC decisions would be published, with exempt material redacted. The types of determinations that are eligible for review by the AAC and the standards by which such appeals are decided would remain unchanged. The FDIC has sought to conform the SARC and AAC structures and procedures to the extent appropriate, making both processes easier for institutions to navigate and the FDIC to administer. I. Proposed Revised Guidelines for Appeals of Material Supervisory Determinations Section 309(a) of the Riegle Community Development and Regulatory Improvement Act of 1994 (Public Law 103-325, 108 Stat. 2160) (“Riegle Act”) required the FDIC (as well as the other Federal banking agencies and the National Credit Union Administration Board) to establish an independent intra-agency appellate process to review material supervisory determinations. On March 21, 1995, the FDIC's Board of Directors adopted Guidelines for Appeals of Material Supervisory Determinations, which established and set forth procedures governing the SARC, whose purpose was to consider and decide appeals of material supervisory determinations as required by the Riegle Act. A. Membership As set forth in the original guidelines, the SARC consisted of the FDIC Vice Chairperson (as chair of the SARC), the Director of the Division of Supervision (“DOS”), the Director of the Division of Compliance and Consumer Affairs (“DCA”), the Ombudsman, and the General Counsel (or their designees). The SARC guidelines were amended to add the Director of the Division of Insurance (now the Director of the Division of Insurance and Research (“DIR”)) as a voting SARC member, to provide formally that the Directors of DOS and DCA (now the DSC Director) would not vote on cases brought before the SARC by their respective (now consolidated) divisions, to provide that designees would be limited to the most senior members of a SARC member's staff, and to include Truth-in-Lending (Regulation Z) restitution. In addition, the SARC was expressly authorized to consider appeals of denied filings as set forth in 12 CFR 303.11(f) for which a Request for Reconsideration has been granted, other than denials of a change in bank control, change in senior executive officer or board of directors, or denial of an application pursuant to section 19 of the Federal Deposit Insurance Act (“FDI Act”) (which are contained in 12 CFR 308, subparts D, L, and M, respectively), if the filing was originally denied by the Director, Deputy Director or Associate Director of DSC. While the current guidelines satisfy the Riegle Act's requirement to establish an independent appellate process for the review of material supervisory determinations, the proposed changes, based on eight years' experience since approval of the original 1995 guidelines, should serve to facilitate the disposition of SARC appeals and further underscore the perception of the SARC as a fair and independent high-level body for review of material supervisory determinations within the FDIC. The FDIC is proposing to modify its guidelines and change the composition of the SARC so that division directors and the Ombudsman no longer serve on the SARC, and new SARC members are drawn from the most senior levels of the Corporation. The Director of the DSC, who is responsible for the operations of two former divisions (DOS and DCA) and who represents the division that made the material supervisory determination under review, the Director of DIR, as well as the Ombudsman, would no longer be SARC members. As revised, the SARC membership would consist of three

(3)voting members:

(1)One FDIC Board member, either the Chairperson, the Vice Chairperson, or the Director (Appointive), as designated by the FDIC Chairperson (this person would serve as the Chairperson of the SARC);

(2)and

(3)one deputy to each of the FDIC Board members who are not designated as the SARC Chairperson. The General Counsel would be the fourth, and non-voting, member of the SARC. The FDIC Chairperson would designate alternate member(s) to the SARC if vacancies occur so long as the alternate member was not directly or indirectly involved in making or affirming the material supervisory determination under review. In addition, a member of the SARC could designate and authorize the most senior member of his or her staff—within the substantive area—to act on his or her behalf in SARC matters. The DSC Director would retain the delegated authority formerly granted, respectively to the DOS and DCA Directors under the current SARC guidelines, to grant requests for review of material supervisory determinations in favor of banks dissatisfied with a decision made by their respective divisions. The current guidelines preclude the Ombudsman from considering the merits of any material supervisory determination for which an appeal had been initiated or a final decision made by the SARC, other than in the Ombudsman's role as a SARC member. Under the proposed guidelines, the subject matter of a material supervisory determination that has been appealed to the SARC or that has been resolved in a final SARC decision is similarly ineligible for consideration by the Ombudsman. Any other problems, however, that an institution may have in dealing with the FDIC are eligible for consideration by the Ombudsman. B. Appeal Under the current SARC guidelines, if the Director of DSC determines not to grant a request for review of a material supervisory determination, no written determination is issued. Instead, the Director must forward that request directly to the SARC for its appellate determination. In this sense, the institution's request for review is also its appeal to the SARC, if the DSC Director does not grant the request. This process of automatic appeal to the SARC differs from the AAC process, under which an institution must file an appeal to the AAC if it wishes to obtain further review of a determination received at the division level. Under the proposed SARC guidelines, an automatic appeal to the SARC is eliminated. Instead, institutions that wish to obtain SARC review of material supervisory determinations would be required to file an appeal—within 30 calendar days from the date of the division director's written determination—to the SARC. The FDIC believes that this procedural change will benefit both institutions seeking review of material supervisory determinations and the FDIC. Unlike the present process, institutions would receive a written determination issued by DSC within 30 days, setting forth the reasons for the division's denial. Based on DSC's determination, institutions could then decide for themselves whether to appeal to the SARC. Institutions may, for example, decide that the issue presented is not one that merits expending the time or effort of seeking a SARC determination. The SARC could also benefit from a diminished caseload since not every institution that receives a denial at the division level may choose to file a SARC appeal. Finally, the appeal requirement for SARC will bring that process closer in line with the AAC process, making both easier for institutions to navigate and the FDIC to administer. An appeal to the SARC would be considered filed if received by the FDIC within 30 calendar days from the date of the determination being appealed or if placed in the United States mail within 30 calendar days from the date of that determination. Institutions would include their name and address, the name and address of any representative, a copy of the determination being appealed, and all of the reasons, factual or legal, why the institution disagrees with the DSC Director's determination. FDIC staff would analyze the filing for the SARC. Any FDIC staff analysis would be considered part of the intra-agency deliberative process and would not be disclosed to insured institutions. The decision of the SARC would be provided to the institution and would set forth the rationale for the agency's determination. The original SARC guidelines permitted the institution to request an appearance before the SARC to present evidence or otherwise support its position, which the SARC may allow in its discretion. Under the proposed guidelines, the SARC would have the discretion, whether or not a request is made, to determine to allow an oral presentation. If an institution wishes to make an oral presentation, it should include in its appeal a statement to that effect. Oral presentations would generally be granted only if the SARC determines in its discretion that the oral presentation would be helpful or would otherwise be in the public interest. At the oral presentation, the institution would present its position and respond to any questions the SARC might have. The SARC could also require that FDIC staff participate in the oral presentation as the SARC deems appropriate. Only matters previously reviewed at the division level, resulting either in a written determination or direct referral to the SARC, could be appealed to the SARC. Submission of new evidence not presented at the division level would be prohibited unless authorized by the SARC Chairperson. No discovery or other such rights would be created in the SARC process. C. Other Provisions The current guidelines also provide that while SARC decisions constitute the final supervisory determination of the FDIC, the SARC can reconsider its decision if new information is presented and good cause is shown why that information is material to the dispute. In practice, however, such new information has never been presented to the SARC, and therefore the FDIC proposes to eliminate this reconsideration provision. In doing so, the FDIC notes that both the SARC and the AAC have implicit authority to correct errors or omissions that may have occurred in the administrative process and to revise final decisions as necessary. The types of determinations that are eligible for review by the SARC and the standards by which SARC appeals are decided remain unchanged. II. Proposed Guidelines for Appeals of Deposit Insurance Assessment Determinations The FDIC Board of Directors created the AAC in 1999 to provide a high-level process for considering all deposit insurance assessment appeals brought from determinations made by the appropriate FDIC Divisions. Responsibility for deposit insurance assessments is shared by the Division of Finance (“DOF”), DIR and, in some respects, DSC. DOF is responsible for calculating the assessments owed by individual insured institutions based on assessment risk classifications assigned by DIR, which in turn uses supervisory information provided by DSC. To calculate an institution's assessment, DOF applies the assessment rate that corresponds to the institution's assessment risk classification to that institution's assessment base. DOF determines the assessment base from deposit and other data submitted in the institution's Report of Condition or Thrift Financial Report. An insured institution may request revision of its quarterly assessment payment by following the procedures set forth at 12 CFR 327.3(h); similarly, an insured institution may request review of its assessment risk classification by following the procedures set forth at 12 CFR 327.4(d). Having complied with those procedures and received a determination from the appropriate division, an institution dissatisfied with that division's determination may file an appeal with the AAC. After reviewing the determination made at the division level, the AAC will issue a final determination. A. Membership As presently constituted, the AAC membership consists of the Vice Chairperson of the Board (as Chairperson of the AAC), the Deputy to the Office of the Comptroller of the Currency's (“OCC”) member on the FDIC's Board of Directors, the Deputy to the Office of Thrift Supervision's (“OTS”) member on the FDIC's Board of Directors; the General Counsel, the Director of the Division of Supervision and Consumer Protection; the Deputy to the Chairperson and Chief Financial Officer or the DOF Director; and the DIR Director. Any member may designate the most senior members of his or her staff to act in the member's stead. If a member's division made the determination that is subject to appeal, that member or designee does not vote with respect to that appeal. Since its creation in 1999, the AAC membership has included individuals who are knowledgeable and experienced in matters related to the FDIC's assessment activities, bringing to the AAC the necessary experience and judgment to make well-informed decisions concerning determinations on appeal. The FDIC believes that the long-range interests of both the agency and the institutions it insures are best served by assuring that all assessment determinations are as fair and accurate as possible, both in practice and in perception. The FDIC is now proposing to modify the composition of the AAC by eliminating the division directors and drawing new members from the most senior levels of the Corporation. As revised, the AAC would consist of five

(5)voting members:

(1)One FDIC Board member, either the Vice Chairperson or the Director (Appointive), as designated by the FDIC Chairperson (this person would serve as Chairperson of the AAC);

(2)a deputy to the FDIC Chairperson, to be designated by the FDIC Chairperson;

(3)a deputy to the OCC member on the FDIC's Board of Directors;

(4)a deputy to the OTS member on the FDIC's Board of Directors; and

(5)a deputy to either the Vice Chairperson or the FDIC Director (Appointive), whoever is not the AAC Chairperson. The General Counsel would be the sixth, and non-voting, member of the AAC. The FDIC Chairperson would designate alternate member(s) to the AAC if vacancies occur so long as the alternate member was not directly or indirectly involved in making or affirming the determination under review. A member of the AAC could designate and authorize the most senior member of his or her staff within the substantive area to act on his or her behalf in AAC matters. The proposed changes, which would eliminate division directors as AAC members, should serve to underscore the perception of the AAC as a fair and independent high-level body for review of assessment disputes. B. AAC Proceedings Under the FDIC's assessment regulations, institutions that dispute the computation of their quarterly assessment payments must comply with the filing requirements set forth at 12 CFR 327.3(h) and institutions that dispute their risk classification must comply with the filing requirements set forth at 12 CFR 327.4(d). Current § 327.3(h) provides that an institution may request revision of the computation of its quarterly assessment payment and sets out the procedures for doing so. Any such request must be made within 60 days of the quarterly assessment invoice for which a revision is requested, or within 60 days of detection of an error in the institution's quarterly Call Report and must include any supporting documentation. Assessment audit and assessment refund determinations are also subject to review under section 327.3(h), although not expressly mentioned in the rule. Any additional information requested by the FDIC must be provided within 21 days. Section 327.3(h) mandates that the FDIC respond within 60 days and provides that the response should include the FDIC's determination wherever feasible; otherwise, the FDIC's determination—rendered by the Chief Financial Officer or designee (usually DOF)—is to be made as promptly as possible. Under current § 327.4(d), an institution may request review of its assessment risk classification within 90 days from the date it receives notice of that classification by the FDIC. Supporting documentation must be included with the request. Any additional information requested by the FDIC must be provided within 21 days. The FDIC—through the appropriate division—either DIR or DSC—must promptly notify the institution of its determination. An insured depository institution that is dissatisfied with the determination made by the appropriate division pursuant to 12 CFR 327.3(h) or 327.4(d) may appeal that determination to the AAC. The AAC will review the determination being appealed and, unless the AAC determines to refer the matter to the FDIC Board of Directors for consideration, render a final determination which will constitute final agency action. FDIC staff would analyze the filing for the AAC. Any FDIC staff analysis would be considered part of the intra-agency deliberative process and would not be disclosed to insured institutions. The decision of the AAC would be provided to the institution and would set forth the rationale for the agency's determination. As with the SARC, the AAC would have the discretion, whether or not a request is made, to determine to allow an oral presentation. The institution's appeal should contain a statement regarding whether it wishes to make an oral presentation. Oral presentations would generally be granted only if the AAC determines in its discretion that oral presentation would be helpful or would otherwise be in the public interest. At the oral presentation, the institution would present its position and respond to any questions the AAC might have. The AAC could also require that FDIC staff participate as the AAC deems appropriate. Only matters previously reviewed at the division level would be subject to AAC review. Submission of new evidence not presented at the division level would be prohibited unless authorized by the AAC Chairperson. No discovery or other such rights would be created in the AAC process. Like the SARC, the AAC has implicit authority to correct errors that may have occurred in the administrative process and to revise final decisions as necessary. For the aforementioned reasons, the FDIC Board of Directors proposes the Guidelines for Appeals of Material Supervisory Determinations be revised as set forth below. The Board's proposed Guidelines for Appeals of Deposit Insurance Assessment Determinations immediately follow the proposed revisions to the Guidelines for Appeals of Material Supervisory Determinations. Proposed Revised Guidelines for Appeals of Material Supervisory Determinations A. Introduction Section 309(a) of the Riegle Community Development and Regulatory Improvement Act of 1994 (Public Law 103-325, 108 Stat. 2160) (“Riegle Act”) required the Federal Deposit Insurance Corporation (“FDIC”) to establish an independent intra-agency appellate process to review material supervisory determinations made at insured depository institutions that it supervises. The FDIC adopted its Guidelines for Appeals of Material Supervisory Determinations (“guidelines”) in 1995 and now proposes to revise them. The guidelines describe the types of determinations that are eligible for review and the process by which appeals will be considered and decided. The procedures set forth in these guidelines establish an appeals process for the review of material supervisory determinations by the Supervision Appeals Review Committee (“SARC”). B. SARC Membership The following individuals comprise the three

(3)voting members of the SARC:

(1)One FDIC Board member, either the Chairperson, the Vice Chairperson, or the FDIC Director (Appointive), as designated by the FDIC Chairperson (this person would serve as the Chairperson of the SARC);

(2)and

(3)one deputy to each of the FDIC Board members who are not designated as the SARC Chairperson. The General Counsel is a non-voting member of the SARC. The FDIC Chairperson may designate alternate member(s) to the SARC if there are vacancies so long as the alternate member was not involved in making or affirming the material supervisory determination under review. A member of the SARC may designate and authorize the most senior member of his or her staff within the substantive area of responsibility related to cases before the SARC to act on his or her behalf. C. Institutions Eligible To Appeal The guidelines apply to the insured depository institutions that the FDIC supervises ( *i.e.* , insured State nonmember banks (except District banks) and insured branches of foreign banks) and also to other insured depository institutions with respect to which the FDIC makes material supervisory determinations. D. Determinations Subject To Appeal An institution may appeal any material supervisory determination pursuant to the procedures set forth in these guidelines. Material supervisory determinations include:

(a)CAMELS ratings under the Uniform Financial Institutions Rating System;

(b)EDP ratings under the Uniform Interagency Rating System for Data Processing Operations;

(c)Trust ratings under the Uniform Interagency Trust Rating System;

(d)CRA ratings under the Revised Uniform Interagency Community Reinvestment Act Assessment Rating System;

(e)Consumer compliance ratings under the Uniform Interagency Consumer Compliance Rating System;

(f)Registered transfer agent examination ratings;

(g)Government securities dealer examination ratings;

(h)Municipal securities dealer examination ratings;

(i)Determinations relating to the adequacy of loan loss reserve provisions;

(j)Classifications of loans and other assets in dispute the amount of which, individually or in the aggregate, exceed 10 percent of an institution's total capital;

(k)Determinations relating to violations of a statute or regulation that may impact the capital, earnings, or operating flexibility of an institution, or otherwise affect the nature and level of supervisory oversight accorded an institution;

(l)Truth in Lending (Regulation Z) restitution;

(m)Filings made pursuant to 12 CFR 303.11(f), for which a Request for Reconsideration has been granted, other than denials of a change in bank control, change in senior executive officer or board of directors, or denial of an application pursuant to section 19 of the FDI Act (which are contained in 12 CFR 308, subparts D, L, and M, respectively), if the filing was originally denied by the DSC Director, Deputy Director or Associate Director; and

(n)Any other supervisory determination (unless otherwise not eligible for appeal) that may impact the capital, earnings, operating flexibility, or capital category for prompt corrective action purposes of an institution, or otherwise affect the nature and level of supervisory oversight accorded an institution. Material supervisory determinations do not include:

(a)Decisions to appoint a conservator or receiver for an insured depository institution;

(b)Decisions to take prompt corrective action pursuant to section 38 of the Federal Deposit Insurance Act, 12 U.S.C. 1831o;

(c)Determinations for which other appeals procedures exist (such as determinations of deposit insurance assessment risk classifications and payment calculations);

(d)Decisions to initiate formal enforcement actions under section 8 of the Federal Deposit Insurance Act, 12 U.S.C. 1818 (including assessment of civil money penalties) or under any other provisions of law or regulation; and

(e)Decisions to initiate informal enforcement actions (such as memoranda of understanding). The FDIC recognizes that, although determinations to take prompt corrective action or initiate formal or informal enforcement actions are not appealable, the determinations upon which such actions may be based ( *e.g.* , loan classifications) are appealable provided they otherwise qualify. E. Good Faith Resolution An institution should make a good faith effort to resolve any dispute concerning a material supervisory determination with the on-site examiner and/or the appropriate Regional Office. The on-site examiner and the Regional Office will promptly respond to any concerns raised by an institution regarding a material supervisory determination. Informal resolution of disputes with the on-site examiner and/or the appropriate Regional Office is encouraged, but seeking such a resolution is not a condition to filing a request for review with the Division of Supervision and Consumer Protection or an appeal to the SARC under these guidelines. F. Filing a Request for Review With the FDIC Division of Supervision and Consumer Protection An institution may file a request for review of a material supervisory determination with the Director, Division of Supervision and Consumer Protection, 550 17th Street NW., Room F-4076, Washington, DC 20429, within 60 calendar days following the institution's receipt of a report of examination containing a material supervisory determination or other written communication of a material supervisory determination. A request for review must be in writing and must include:

(a)A detailed description of the issues in dispute, the surrounding circumstances, the institution's position regarding the dispute and any arguments to support that position (including citation of any relevant statute, regulation, policy statement or other authority), how resolution of the dispute would materially affect the institution, and whether a good faith effort was made to resolve the dispute with the on-site examiner and the Regional Office; and

(b)A statement that the institution's board of directors has considered the merits of the request and authorized that it be filed. The Director, Division of Supervision and Consumer Protection, will issue a written determination of the request for review, setting forth the grounds for that determination, within 30 days of receipt of the request. No appeal to the SARC will be allowed unless an institution has first filed a request for review with the Division of Supervision and Consumer Protection. G. Appeal to the SARC An institution that does not agree with the written determination rendered by the Director of the Division of Supervision and Consumer Protection must appeal that determination to the SARC within 30 calendar days from the date of that determination. The Director's determination will inform the institution of the 30-day time period for filing with the SARC and will provide the mailing address for any appeal the institution may wish to file. Failure to file within the 30-day time limit may result in denial of the appeal by the SARC. If the Director of the Division of Supervision and Consumer Protection determines that an institution is entitled to relief that the Director lacks delegated authority to grant, the Director may, with the approval of the Chairperson of the SARC, transfer the matter directly to the SARC without issuing a determination. H. Filing With the SARC An appeal to the SARC will be considered filed if the written appeal is received by the FDIC within 30 calendar days from the date of the division director's written determination or if the written appeal is placed in the U.S. mail within that 30-day period. If the 30th day after the date of the division director's written determination is a Saturday, Sunday or Federal holiday, filing may be made on the next business day. The appeal should be sent to the address indicated on the determination being appealed. I. Contents of Appeal The appeal should be labeled to indicate that it is an appeal to the SARC and should contain the name, address, and telephone number of the institution and any representative, as well as a copy of the determination being appealed. Only matters previously reviewed at the division level, resulting in a written determination or direct referral to the SARC, may be appealed to the SARC. Evidence not presented at the division level may be submitted only if authorized by the SARC Chairperson. The institution should set forth all of the reasons, legal and factual, why it disagrees with the determination. Nothing in the SARC administrative process shall create any discovery or other such rights. J. Burden of Proof The burden of proof as to all matters at issue in the appeal, including timeliness of the appeal if timeliness is at issue, rests with the institution. K. Oral Presentation The SARC may, in its discretion, whether or not a request is made, determine to allow an oral presentation. The SARC generally grants a request for oral presentation only if it determines that oral presentation would be helpful or would otherwise be in the public interest. If oral presentation is held, the institution will be allowed to present its positions on the issues raised in the appeal and to respond to any questions from the SARC. The SARC may also require that FDIC staff participate as the SARC deems appropriate. L. Dismissal and Withdrawal An appeal may be dismissed by the SARC if it is not timely filed, if the basis for the appeal is not discernable from the appeal, or if the institution moves to withdraw the appeal. M. Scope of Review and Decision The SARC will review the appeal for consistency with the policies, practices and mission of the FDIC and the overall reasonableness of and the support offered for the positions advanced, and notify the institution, in writing, of its decision concerning the disputed material supervisory determination(s) within 60 days from the date the appeal is filed, or within 60 days from oral presentation, if held. SARC review will be limited to the facts and circumstances as they existed prior to or at the time the material supervisory determination was made, even if later discovered, and no consideration will be given to any facts or circumstances that occur or corrective action taken after the determination was made. N. Publication of Decisions SARC decisions will be published. Published SARC decisions will be redacted to avoid disclosure of exempt information. Published SARC decisions may be cited as precedent in appeals to the SARC. O. SARC Guidelines Generally Appeals to the SARC will be governed by these guidelines. The SARC will retain the discretion to waive any provision of the guidelines for good cause; the SARC may adopt supplemental rules governing SARC operations; the SARC may order that material be kept confidential; and the SARC may consolidate similar appeals. P. Limitation on Agency Ombudsman The subject matter of a material supervisory determination for which either an appeal to the SARC has been filed or a final SARC decision issued is not eligible for consideration by the Ombudsman. Q. Coordination With State Regulatory Authorities In the event that a material supervisory determination subject to a request for review is the joint product of the FDIC and a State regulatory authority, the Director, Division of Supervision and Consumer Protection, will promptly notify the appropriate State regulatory authority of the request, provide the regulatory authority with a copy of the institution's request for review and any other related materials, and solicit the regulatory authority's views regarding the merits of the request before making a determination. In the event that an appeal is subsequently filed with the SARC, the SARC will notify the institution and the State regulatory authority of its decision. Once the SARC has issued its determination, any other issues that may remain between the institution and the State authority will be left to those parties to resolve. R. Effect on Supervisory or Enforcement Actions The use of the procedures set forth in these guidelines by any institution will not affect, delay, or impede any formal or informal supervisory or enforcement action in progress or affect the FDIC's authority to take any supervisory or enforcement action against that institution. S. Effect on Applications or Requests for Approval Any application or request for approval made to the FDIC by an institution that has appealed a material supervisory determination which relates to or could affect the approval of the application or request will not be considered until a final decision concerning the appeal is made unless otherwise requested by the institution. T. Prohibition on Examiner Retaliation The FDIC has an experienced examination workforce and is proud of its professionalism and dedication. FDIC policy prohibits any retaliation, abuse, or retribution by an agency examiner or any FDIC personnel against an institution. Such behavior against an institution that appeals a material supervisory determination constitutes unprofessional conduct and will subject the examiner or other personnel to appropriate disciplinary or remedial action. Institutions that believe they have been retaliated against are encouraged to contact the Regional Director for the appropriate FDIC region. Any institution that believes or has any evidence that it has been subject to retaliation may file a complaint with the Director, Office of the Ombudsman, Federal Deposit Insurance Corporation, 550 17th Street, Washington, DC 20429, explaining the circumstances and the basis for such belief or evidence and requesting that the complaint be investigated and appropriate disciplinary or remedial action taken. The Office of the Ombudsman will work with the Division of Supervision and Consumer Protection to resolve the allegation of retaliation. Proposed Guidelines for Appeals of Deposit Insurance Assessment Determinations A. Introduction The Assessment Appeals Committee (“AAC”) was formed in 1999 and, pursuant to the direction of the FDIC Board of Directors, has been functioning as the appellate entity responsible for making final determinations pursuant to part 327 of the FDIC's regulations regarding the assessment risk classification and the assessment payment calculation of insured depository institutions. The AAC provides a process for considering all deposit insurance assessment appeals brought from determinations made by the appropriate FDIC divisions. The procedures set forth in these guidelines apply to all appeals to the AAC. B. AAC Membership The following individuals comprise the five

(5)voting members of the AAC, representing each member of the FDIC Board of Directors:

(1)One FDIC Board member, either the Vice Chairperson or the Director (Appointive), as designated by the FDIC Chairperson (this person would serve as Chairperson of the AAC);

(2)one of the deputies to the FDIC Chairperson, to be designated by the FDIC Chairperson;

(3)a deputy to the Office of the Comptroller of the Currency's member on the FDIC's Board of Directors;

(4)a deputy to the Office of the Office of Thrift Supervision's member on the FDIC's Board of Directors; and

(5)a deputy to either the Vice Chairperson or the Director (Appointive), whoever is not the AAC Chairperson. The General Counsel is a non-voting member of the AAC. The FDIC Chairperson may designate alternative member(s) for the AAC if vacancies occur. A member of the AAC may designate and authorize the most senior member of his or her staff within the substantive area of responsibility related to cases before the AAC to act on his or her behalf. C. Institutions Eligible to Appeal These guidelines apply to all depository institutions insured by the FDIC. D. Determinations Subject to Appeal The AAC, upon appeal by an insured depository institution, reviews determinations of the Director of the Division of Insurance and Research or the Director of the Division of Supervision and Consumer Protection made pursuant to the procedures set forth at 12 CFR 327.4(d) regarding the assessment risk classification assigned by the FDIC to the institution and renders a final determination. The AAC also, upon appeal by an insured depository institution, reviews determinations made pursuant to 12 CFR 327.3(h) by the Chief Financial Officer (or the Director of the Division of Finance, as designee) regarding the computation of the institution's assessment payment and renders a final determination. E. Appeal to the AAC An institution that does not agree with the written determination rendered by the appropriate division director pursuant to 12 CFR 327.4(d) and 12 CFR 327.3(h) must appeal that determination to the AAC within 30 calendar days from the date of the determination. The division director's determination will inform the institution of the 30-day time limit for filing with the AAC and will provide the mailing address for any appeal the institution may wish to file. Failure to file within the 30-day time period may result in denial of the appeal by the AAC. If a division director determines that an institution is entitled to relief that the director lacks delegated authority to grant, the director may, with the approval of the Chairperson of the AAC, transfer the matter directly to the AAC without issuing a determination. F. Filing With the AAC An appeal to the AAC will be considered filed if the written appeal is received by the FDIC within 30 calendar days from the date of the division director's written determination or if the written appeal is placed in the U.S. mail within that 30-day period. If the 30th day after the date of the division director's written determination is a Saturday, Sunday or Federal holiday, filing may be made on the next business day. The appeal should be sent to the address indicated on the determination being appealed. G. Contents of Appeal The appeal should be labeled to indicate that it is an appeal to the AAC and should contain the name, address, and telephone number of the institution and any representative, as well as a copy of the determination being appealed. Only matters previously reviewed at the division level, resulting in either a written determination or a direct referral to the AAC, may be appealed to the AAC. Evidence not presented at the division level may be submitted only if authorized by the AAC Chairperson. The institution should set forth all of the reasons, legal and factual, why it disagrees with the determination. Nothing in the AAC administrative process shall create any discovery or other such rights. H. Burden of Proof The burden of proof as to all matters at issue in the appeal, including timeliness of the appeal if timeliness is at issue, rests with the institution. I. Oral Presentation The AAC may, in its discretion, whether or not a request is made, determine to allow an oral presentation. The AAC generally grants a request for oral presentation only if it determines that oral presentation would be helpful or would otherwise be in the public interest. If oral presentation is held, the institution will be allowed to present its position on the issues raised in the appeal and to respond to any questions from the AAC. The AAC may also require that FDIC staff participate as the AAC deems appropriate. J. Dismissal and Withdrawal An appeal may be dismissed by the AAC if it is not timely filed, if the legal or factual basis for the appeal is not discernable from the appeal, or if the institution moves to withdraw the appeal. K. Scope of Review and Decision The AAC will review all submissions concerning an appeal, review the final determination being appealed, consider any other matters it deems in its discretion to be appropriate, and issue a written decision within 60 days from the date the appeal is filed, or within 60 days from oral presentation, if held. L. Publication of Decisions AAC decisions will be published. Published AAC decisions will be redacted to avoid disclosure of exempt information. Published decisions of the AAC may be cited as precedent in appeals to the AAC. M. AAC Guidelines Generally Appeals to the AAC will be governed by these guidelines. The AAC will retain the discretion to waive any provision of the guidelines for good cause; the AAC may adopt supplemental rules governing AAC operations; the AAC may order that material be kept confidential; and the AAC may consolidate similar appeals. N. Effect on Deposit Insurance Assessment Payments The use of the procedures set forth in these guidelines by an insured institution will not affect, delay, or impede the obligation of that institution to make timely payment of any deposit insurance assessment. Dated at Washington, DC, this 10th day of March, 2004. By order of the Board of Directors. Federal Deposit Insurance Corporation. Robert E. Feldman, Executive Secretary. [FR Doc. 04-6112 Filed 3-17-04; 8:45 am]

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