This section of the FEDERAL REGISTER

contains notices to the public of the proposed

issuance of rules and regulations. The

purpose of these notices is to give interested

persons an opportunity to participate in the

rule making prior to the adoption of the final

rules.

Proposed Rules Federal Register

51744 

Vol. 73, No. 173 

Friday, September 5, 2008 

1 18 CFR 35.36(a)(9). 

2 Market-Based Rates for Wholesale Sales of 

Electric Energy, Capacity and Ancillary Services by 

Public Utilities, Order No. 697, FERC Stats. & Regs. 

¶ 31,252, clarified, 121 FERC ¶ 61,260 (2007), order 

on reh’g, Order No. 697-A, 73 FR 25832 (May 7, 

2008), FERC Stats. & Regs. ¶ 31,268, clarified, 124 

FERC ¶ 61,055 (2008). 

3Cross-Subsidization Restrictions on Affiliate 

Transactions, Order No. 707, 73 FR 11013 (Feb. 29, 

2008), FERC Stats. & Regs. ¶ 31,264 (Feb. 21, 2008) 

(Affiliate Transactions Final Rule), order on 

rehearing, Order No. 707–A, 73 FR 43072 (July 24, 

2008), FERC Stats. & Regs. ¶ 31,272 (2008). 

4Order No. 697–A, FERC Stats. & Regs. ¶ 31,268 

at P 182 (citing Morgan Stanley Capital Group, Inc., 

72 FERC ¶ 61,082, at 61,436–37 (1995) (Morgan 

Stanley)). 

5 Morgan Stanley, 72 FERC ¶ 61,082 at 61,436–37. 

6 Id. The Commission did this by adopting the 

definition of an affiliate found in its Standards of 

Conduct for Interstate Pipelines. 

7 15 U.S.C. 79a et seq. PUHCA 1935 defines an 

affiliate as: 

(a) Any person that directly or indirectly owns, 

controls or holds with the power to vote, 5 per 

centum or more of the outstanding voting securities 

of such specified company; 

(b) Any company 5 per centum or more of whose 

outstanding voting securities are owned, controlled, 

or held with the power to vote, directly or 

indirectly, by such specified company; 

(c) Any individual who is an officer or director 

of such specified company, or of any company 

which is an affiliate thereof under clause (a) of this 

paragraph; and 

(d) Any person or class of persons that the 

[Securities and Exchange Commission] determines, 

after appropriate notice and opportunity for 

hearing, to stand in such relation to such specified 

company that there is liable to be such an absence 

of arm’s-length bargaining in transactions between 

them as to make it necessary or appropriate in the 

public interest or for the protection of investors or 

consumers that such person be subject to the 

obligation, duties, and liabilities imposed in this 

title upon affiliates of a company. 

8EPAct 2005 at 1261 et seq. Prior to its 

amendment by the Energy Policy Act of 2005, 

section 214 of the FPA, 16 U.S.C. 824m, read as 

follows: 

No rate or charge received by an exempt 

wholesale generator for the sale of electric energy 

shall be lawful under section 824d of this title if, 

after notice and opportunity for hearing, the 

Commission finds that such rate or charge results 

DEPARTMENT OF ENERGY 

Federal Energy Regulatory 

Commission 

18 CFR Part 35 

[Docket No. RM04–7–005] 

Market-Based Rates for Wholesale 

Sales of Electric Energy, Capacity and 

Ancillary Services by Public Utilities; 

Order Requesting Supplemental 

Comments 

Issued August 29, 2008. 

AGENCY: Federal Energy Regulatory 

Commission. 

ACTION: Order Requesting Supplemental 

Comments. 

SUMMARY: The Federal Energy 

Regulatory Commission (Commission), 

in response to requests for rehearing of 

Order No. 697–A, intends to revise the 

definition of the term ‘‘affiliate’’ 

adopted in Order No. 697–A and 

codified in the Commission’s 

regulations, and seeks supplemental 

comments on this issue. 

DATES: Comments are due October 20, 

2008. 

FOR FURTHER INFORMATION CONTACT: 

Michelle Barnaby (Technical 

Information), Office of Energy Market 

Regulation, Federal Energy Regulatory 

Commission, 888 First Street, NE., 

Washington, DC 20426, (202) 502– 

8407. 

Paul Silverman (Legal Information), 

Office of the General Counsel, Federal 

Energy Regulatory Commission, 888 

First Street, NE., Washington, DC 

20426, (202) 502–8683. 

Paige Bullard (Legal Information), Office 

of the General Counsel, Federal 

Energy Regulatory Commission, 888 

First Street, NE., Washington, DC 

20426, (202) 502–6462. 

SUPPLEMENTARY INFORMATION: 

Before Commissioners: Joseph T. Kelliher, 

Chairman; Suedeen G. Kelly, Marc Spitzer, 

Philip D. Moeller, and Jon Wellinghoff. 

Order Requesting Supplemental 

Comments 

1. The Federal Energy Regulatory 

Commission (Commission) intends to 

revise the definition of the term 

‘‘affiliate’’ adopted in Order No. 697–A 

and codified in § 35.36(a)(9) of the 

Commission’s regulations,1 in response 

to issues raised in requests for rehearing 

of Order No. 697–A.2 To ensure a 

complete record and full opportunity of 

all parties to comment on a revised 

definition of ‘‘affiliate’’ in this docket, 

the Commission is seeking 

supplemental comments on this issue. 

I. Background 

2. In Order No. 697–A, the 

Commission clarified that it would 

define the term ‘‘affiliate’’ for purposes 

of Order No. 697 and the affiliate 

restrictions adopted in § 35.39 of its 

regulations as that term is used in the 

regulations adopted in the Affiliate 

Transactions Final Rule.3 The 

Commission stated that it was taking 

this action in light of its goal to have a 

more consistent definition of affiliate for 

purposes of both exempt wholesale 

generators (EWGs) and non-EWGs to the 

extent possible, as well as to strengthen 

the Commission’s ability to ensure that 

customers are protected. 

3. The Commission explained that in 

the Affiliate Transactions Final Rule, it 

considered the use of the term affiliate 

in the context of the Affiliate 

Transactions Notice of Proposed 

Rulemaking, the Commission’s 

Standards of Conduct for Transmission 

Providers, and other precedent.4 In 

particular, the Commission considered 

its order in the 1995 Morgan Stanley 

case, in which it adopted distinct 

definitions of affiliate for EWGs and 

non-EWGs. The Commission noted 

there that section 214 of the Federal 

Power Act (FPA) required use of the 

Public Utility Holding Company Act of 

1935 (PUHCA 1935) definition of 

affiliate to determine whether an 

electric utility is an affiliate of an EWG 

for purposes of evaluating EWG rates for 

wholesale sales of electric energy. The 

Commission thus stated in Morgan 

Stanley that the PUHCA 1935 definition 

of affiliate would apply to EWGs for 

matters arising under Part II of the FPA.5

For all other public utilities, the 

Commission adopted a definition that in 

essence treats all companies under the 

common control of another company, as 

well as that controlling company, as 

affiliates. The Commission also stated in 

Morgan Stanley that a ten percent or 

greater voting interest creates a 

rebuttable presumption of control.6

After reviewing the precedent 

established in Morgan Stanley, the 

Commission in the Affiliate 

Transactions Final Rule also reviewed 

FPA section 214 as revised by EPAct 

2005 as well as the affiliate definitions 

contained in both PUHCA 1935 7 and 

the Public Utility Holding Company Act 

of 2005 (PUHCA 2005).8


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from the receipt of any undue preference or 

advantage from an electric utility which is an 

associate company or an affiliate of the exempt 

wholesale generator. For purposes of this section, 

the terms ‘‘associate company’’ and ‘‘affiliate’’ shall 

have the same meaning as provided in section 2(a) 

of the Public Utility Holding Company Act of 1935. 

EPAct 2005 amended section 214 of the FPA by 

substituting the reference to the PUHCA 1935 

definition of affiliate with a reference to the PUHCA 

2005 definition. PUHCA 2005 defines an affiliate of 

a specified company as any company in which the 

specified company has a five percent or greater 

voting interest. Thus, as revised by EPAct 2005, the 

only EWG affiliate sales that are subject to FPA 

section 214 are sales by an EWG to a company in 

which it owns a five percent or greater voting 

interest. 

9Order No. 697–A, FERC Stats. & Regs. ¶ 31,268 

at P 182. 

10The Mirant Entities are Mirant California, LLC, 

Mirant Delta, LLC, Mirant Potrero, LLC, Mirant 

Canal, LLC, Mirant Kendal, LLC, Mirant Bowline, 

LLC, Mirant Lovett, LLC, Mirant Chalk Point, LLC, 

Mirant Mid-Atlantic, LLC, Mirant Potomac River, 

LLC, and Mirant Energy Trading, LLC. 

11Other issues have been raised on rehearing of 

Order No. 697–A and will be addressed in a 

subsequent order. 

12EPSA Rehearing Request at 5 (citing Order No. 

697–A, FERC Stats. & Regs. ¶ 31,268 at P 182–83); 

Mirant Rehearing Request at 6–7; Reliant Rehearing 

Request at 2–3. 

13EPSA Rehearing Request at 19. 

14 Id. at 5–6, 13–15 (citing 5 U.S.C. 553(b)(3)). 

15Reliant Rehearing Request at 13. 

16 Id. at 9. 

17 Id. at 11. 

18 Id. at 15. 

19 Id. at 17. 

4. In Order No. 697–A, the 

Commission explained that after taking 

into account these differing definitions, 

and recognizing the need to provide 

greater clarity and consistency in its 

rules, the Commission found in the 

Affiliate Transactions Final Rule that it 

was important to try to adopt a more 

consistent definition in its various rules 

and also one that is sufficiently broad to 

allow the Commission to protect 

customers adequately.9 The 

Commission further explained that on 

this basis, the definition of affiliate as 

adopted in the Affiliate Transactions 

Final Rule explicitly incorporated the 

PUHCA 1935 definition of an affiliate 

for EWGs, which uses a five percent 

voting interest threshold, rather than 

incorporate it by reference, as 

previously had been done. The 

definition in the Affiliate Transactions 

Final Rule also adopted a parallel 

definition of affiliate for non-EWGs, but 

with adjustments to reflect the ten 

percent voting interest threshold for 

non-EWGs that was utilized up to that 

time and to eliminate certain language 

not applicable or necessary in the 

context of the FPA. The Commission in 

Order No. 697–A then adopted in this 

rule the same definition of ‘‘affiliate’’

that it had adopted in the Affiliate 

Transactions Final Rule. 

II. Requests for Rehearing 

5. The Electric Power Supply 

Association (EPSA), the Mirant Entities 

(Mirant) 10 and Reliant Energy, Inc. 

(Reliant) (together, petitioners) 

submitted requests for rehearing of the 

Commission’s determination in Order 

No. 697–A to codify in its market-based 

rate regulations a definition of affiliate 

that distinguishes between EWGs and 

non-EWGs.11 They argue that the 

Commission erred in adopting a 

separate definition for EWGs.12

6. EPSA states that a five percent 

ownership threshold for EWGs imposes 

substantially greater burdens on EWGs 

and achieves no useful regulatory 

purpose. EPSA contends that the 

Commission has provided no reasoned 

explanation for using a definition 

derived from PUHCA 1935 that imposes 

greater burdens, including change in 

status reporting obligations, on EWGs 

than those imposed on other marketbased rate sellers. EPSA maintains that 

if the Commission is going to 

promulgate a definition of affiliate for 

market-based rate purposes, it should 

apply to EWGs the definition adopted in 

Order No. 697–A for non-EWGs, which 

uses a ten percent ownership 

threshold.13 EPSA also argues that the 

Commission’s promulgation of a 

separate definition of affiliate for EWGs 

was a violation of the notice 

requirements of the Administrative 

Procedure Act because the Commission 

did not signal any intent to do so either 

in the market-based rate notice of 

proposed rulemaking or in Order No. 

697 and did not afford interested parties 

an opportunity to comment on the 

regulatory text.14

7. Reliant similarly argues that 

placing disparate burdens on companies 

simply because they do or do not hold 

EWG status is arbitrary and capricious 

and not in the public interest. 

According to Reliant, the Commission 

has provided no reasonable basis to 

maintain two different definitions for 

determining affiliates of EWGs and nonEWGs. Reliant asserts that the only 

reason that the Commission previously 

had adopted a narrower affiliate 

definition under the market-based rate 

program for EWG utilities was its prior 

belief that FPA section 214 did not 

provide sufficient discretion to the 

Commission to use a different 

definition.15 However, Reliant states 

that the Commission effectively 

recognized in Order No. 697–A that it is 

not required by statute to use the FPA 

section 214 definition of affiliate for 

purposes beyond the narrow scope of 

section 214 and that, for purposes 

outside of section 214, it has discretion 

to adopt an affiliate definition for EWGs 

that is different from that contained in 

section 214.16 Reliant argues that the 

Commission must not be arbitrary and 

capricious in the exercise of that 

discretion. 

8. Reliant states that it supports the 

Commission’s goal of using consistent 

affiliate definitions for all FPA public 

utilities, but it asserts that the use of 

different standards for EWGs and nonEWGs for FPA purposes (other than the 

narrow situations that might arise under 

section 214 of the FPA) does not achieve 

that consistency.17 Reliant submits that 

the Commission has consistently 

recognized in administering its marketbased rate program that the relevant 

inquiry with respect to affiliate relations 

pertains to control, i.e., whether a 

market-based rate seller is controlled by 

another entity or whether a marketbased rate seller and other sellers are 

under common control of the same 

entity. It notes that the Commission has 

consistently concluded that the starting 

point for assessing control is based on 

a standard that begins with the 

ownership of ten percent or more of a 

company’s voting securities.18

According to Reliant, a lower five 

percent standard for EWGs casts too 

broad a net, with the result being that 

EWG public utilities and their owners 

may be required to impute affiliation at 

thresholds significantly below the ten 

percent standard applicable to non-EWG 

utilities. Reliant submits that the 

Commission has not explained how this 

disparate treatment of EWGs is 

necessary or appropriate for assessing 

market power or other purposes under 

its market-based rate program. 

9. Reliant therefore argues that the 

Commission should grant rehearing and 

eliminate the PUHCA 1935 definition 

for EWG affiliates and use the same 

definition of affiliate for EWGs that it 

has adopted in Order No. 697–A for 

non-EWG utilities, which Reliant 

describes as based on a control 

standard.19

10. Mirant raises similar arguments. It 

maintains that the Commission 

provided no basis for adopting a five 

percent voting interest affiliate test for 

EWGs when the test for non-EWGs is 

ten percent. Mirant argues that the five 

percent voting interest standard that has 

its origin in FPA section 214 applies 

only to evaluation of EWG rates and has 

no relevance to an analysis of control 

over generation or the events that 

should trigger a change in status filing. 

Mirant contends that this rulemaking 


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51746 Federal Register / Vol. 73, No. 173 / Friday, September 5, 2008 / Proposed Rules 

20Mirant Rehearing Request at 9. 

21 Id. 

22 Id. at 8–9; Reliant Rehearing Request at 9, 11. 

23Section 214 uses a five percent affiliate 

threshold with respect to determining whether the 

jurisdictional rates of an EWG are the result of a 

preference or advantage of an affiliate of the EWG. 

While an analysis of market power relates to an 

EWG’s rates, it does not involve the specific issue 

of whether an EWG has received an undue 

preference or advantage with respect to a particular 

wholesale sale. 24 5 CFR 1320.12. 

25 5 U.S.C. 601–612. 

26 5 U.S.C. 601(3), citing to section 3 of the Small 

Business Act, 15 U.S.C. 632. Section 3 of the Small 

Business Act defines a ‘‘small business concern’’ as 

a business that is independently owned and 

operated and that is not dominant in its field of 

operation. The Small Business Size Standards 

component of the North American Industry 

Classification System defines a small electric utility 

as one that, including its affiliates, is primarily 

engaged in the generation, transmission, and/or 

distribution of electric energy for sale and whose 

total electric output for the preceding fiscal year did 

not exceed four million MWh. 13 CFR 121.201. 

concerns both the measure of a seller’s 

ability to exercise market power and the 

facts that warrant reporting of ‘‘changes 

in status’’ in a seller’s market-based rate 

docket.20 It states that the requirement 

that market-based rate sellers report 

changes in status is based not on the 

Commission’s concern for the rates and 

charges of the EWG, but on the 

Commission’s need to be informed of 

the potential exercise of market power 

through the ownership or control of 

generation or transmission. Mirant 

therefore requests that the Commission 

analyze the issue in light of the 

purposes behind change in status filings 

and find that there is no basis for 

distinguishing between EWGs and nonEWGs in this context.21

III. Discussion 

11. We have carefully considered the 

legal and policy arguments petitioners 

have raised on rehearing in opposition 

to a separate definition of affiliate for 

EWGs. Mirant and Reliant argue that, 

although section 214 of the FPA 

requires the Commission to apply a five 

percent standard to certain transactions 

involving EWGs, the Commission is not 

required to use a five percent standard 

in a definition of affiliate developed for 

the general task of assessing market 

concentration and market power.22

Petitioners argue instead that the 

Commission should apply the same 

standard in its market-based rate 

regulations to EWGs and non-EWGs for 

purposes of determining affiliation. 

Having again analyzed FPA section 214, 

and irrespective of any Commission 

precedent to the contrary, we agree that 

a reasonable interpretation of FPA 

section 214 is that it does not require 

the Commission to use a five percent 

threshold affiliate test for EWGs for all 

purposes under Part II of the FPA, and 

in particular for purposes of analyzing 

market concentration and market 

power.23 We also find the arguments in 

support of a single definition of affiliate, 

applicable to both EWGs and nonEWGs, to be persuasive. Upon 

reconsideration, therefore, we believe 

that using the same definition for EWGs 

as for non-EWGs is appropriate and that 

the definition the Commission adopted 

in Order No. 697–A for non-EWG 

utilities would not affect the substance 

of the Commission’s analysis of market 

power issues. This definition is based 

on the structure of the PUHCA 1935 

definition, but modified in several ways, 

including use of a ten percent threshold 

instead of five percent. 

12. Accordingly, the Commission 

intends to revise the definition of 

affiliate in § 35.36(a)(9) of its regulations 

to delete the separate definition for 

EWGs and to revise the non-EWG part 

of the definition to delete the phrase 

‘‘other than an exempt wholesale 

generator.’’ Specifically, the revised 

definition of affiliate in § 35.36(a)(9) 

would provide that an affiliate of a 

specified company means: (a) Any 

person that directly or indirectly owns, 

controls, or holds with power to vote, 10 

percent or more of the outstanding 

voting securities of the specified 

company; (b) Any company 10 percent 

or more of whose outstanding voting 

securities are owned, controlled, or held 

with power to vote, directly or 

indirectly, by the specified company; (c) 

Any person or class of persons that the 

Commission determines, after 

appropriate notice and opportunity for 

hearing, to stand in such relation to the 

specified company that there is liable to 

be an absence of arm’s-length bargaining 

in transactions between them as to make 

it necessary or appropriate in the public 

interest or for the protection of investors 

or consumers that the person be treated 

as an affiliate; and (d) Any person that 

is under common control with the 

specified company. For purposes of 

paragraph (a)(9)(i), owning, controlling 

or holding with power to vote, less than 

10 percent of the outstanding voting 

securities of a specified company 

creates a rebuttable presumption of lack 

of control. 

13. We believe this revision will 

result in fair and consistent treatment of 

jurisdictional sellers. Before taking final 

action in response to the rehearing 

comments, however, we seek 

supplemental comments on the 

proposed revised definition of affiliate 

in § 35.36(a)(9) as discussed above. 

IV. Information Collection Statement 

14. The Office of Management and 

Budget (OMB) regulations require that 

OMB approve certain reporting and 

recordkeeping (information collections) 

imposed by an agency.24 Order No. 

697’s revisions to the information 

collection requirements for marketbased rate sellers were approved under 

OMB Control Nos. 1902–0234. Order 

No. 697–A clarified aspects of the 

existing information collection 

requirements for the market-based rate 

program, but did not add to those 

requirements. While this order requests 

comments on the Commission’s 

proposal to revise the definition of 

affiliate in § 35.36(a)(9) of the 

Commission’s regulations, it does not 

add to the existing information 

collection requirements for the marketbased rate program. Accordingly, a copy 

of this order will be sent to OMB for 

informational purposes only. 

V. Regulatory Flexibility Act 

15. The Regulatory Flexibility Act of 

1980 25 generally requires either a 

description and analysis of a rule that 

will have a significant economic impact 

on a substantial number of small entities 

or a certification that the rule will not 

have a significant economic impact on 

a substantial number of small entities.26

In this order, the Commission seeks 

comment on a revised definition of 

affiliate in § 35.36(a)(9) of its 

regulations, which would apply to 

EWGs the definition based on a ten 

percent voting interest adopted in Order 

No. 697–A for non-EWGs, rather than 

using the definition adopted in Order 

No. 697–A for EWGs, which is based on 

a five percent voting interest. Public 

utilities seeking and currently 

possessing market-based rate authority 

are currently required to comply with 

the Commission’s regulations with 

regard to the definition of affiliate at 

§ 36.36(a)(9) and the revised definition 

would decrease the number of entities 

considered to be affiliates of EWG 

public utilities. The Commission 

therefore concludes that a revised 

definition of affiliate in § 35.36(a)(9) 

should not have a significant economic 

impact on a substantial number of small 

entities. 

VI. Document Availability 

16. In addition to publishing the full 

text of this document in the Federal 

Register, the Commission provides all 

interested persons an opportunity to 

view and/or print the contents of this 

document via the Internet through 

FERC’s Home Page (http://www.ferc.gov) 

and in FERC’s Public Reference Room 


jlentini on PROD1PC65 with PROPOSALS
Federal Register / Vol. 73, No. 173 / Friday, September 5, 2008 / Proposed Rules 51747 

during normal business hours (8:30 a.m. 

to 5 p.m. Eastern time) at 888 First 

Street, NE., Room 2A, Washington DC 

20426. 

17. From FERC’s Home Page on the 

Internet, this information is available on 

eLibrary. The full text of this document 

is available on eLibrary in PDF and 

Microsoft Word format for viewing, 

printing, and/or downloading. To access 

this document in eLibrary, type the 

docket number excluding the last three 

digits of this document in the docket 

number field. 

18. User assistance is available for 

eLibrary and the FERC’s Web site during 

normal business hours from FERC 

Online Support at 202–502–6652 (toll 

free at 1–866–208–3676) or e-mail at 

ferconlinesupport@ferc.gov, or the 

Public Reference Room at (202) 502–

8371, TTY (202) 502–8659. E-mail the 

Public Reference Room at 

public.referenceroom@ferc.gov. 

List of Subjects in 18 CFR Part 35 

Electric power rates, Electric utilities, 

Reporting and recordkeeping 

requirements. 

By the Commission. 

Kimberly D. Bose, 

Secretary. 

[FR Doc. E8–20546 Filed 9–4–08; 8:45 am] 

BILLING CODE 6717–01–P 

DEPARTMENT OF THE TREASURY 

Internal Revenue Service 

26 CFR Part 1 

[REG–161695–04] 

RIN 1545–BE23 

Farmer and Fisherman Income 

Averaging; Correction 

AGENCY: Internal Revenue Service (IRS), 

Treasury. 

ACTION: Correction to notice of proposed 

rulemaking by cross-reference to 

temporary regulations. 

SUMMARY: This document corrects a 

notice of proposed rulemaking by crossreference to temporary regulations 

(REG–161695–04) that was published in 

the Federal Register on Tuesday, July 

22, 2008 (73 FR 42538) relating to the 

averaging of farm and fishing income in 

computing income tax liability. 

FOR FURTHER INFORMATION CONTACT: 

Amy Pfalzgraf, (202) 622–4960 (not a 

toll-free number). 

SUPPLEMENTARY INFORMATION: 

Background 

The notice of proposed rulemaking by 

cross-reference to temporary regulations 

(REG–161695–04) that is the subject of 

this correction is under section 1301 of 

the Internal Revenue Code. 

Need for Correction 

As published, REG–161695–04 

contains an error that may prove to be 

misleading and is in need of 

clarification. 

Correction of Publication 

Accordingly, the publication of the 

proposed rulemaking by cross-reference 

to temporary regulations (REG–161695–

04), which was the subject of FR Doc. 

E8–16664, is corrected as follows: 

On page 42538, column 2, in the 

preamble, under the caption ‘‘For 

Further Information Contact’’, line 2, the 

language ‘‘Amy Pfalzgraf, (202) 622–

4950 (not a‘‘ is corrected to read ‘‘Amy 

Pfalzgraf (202) 622–4960 (not a‘‘. 

LaNita Van Dyke, 

Chief, Publications and Regulations Branch, 

Legal Processing Division, Associate Chief 

Counsel, (Procedure and Administration). 

[FR Doc. E8–20552 Filed 9–4–08; 8:45 am] 

BILLING CODE 4830–01–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 226 

[Docket No. 0808061060–81062–01] 

RIN 0648–AW77 

Endangered and Threatened Species; 

Proposed Critical Habitat for the Gulf 

of Maine Distinct Population Segment 

of Atlantic Salmon 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Proposed rule; request for 

comments. 

SUMMARY: We, the National Marine 

Fisheries Service (NMFS), propose to 

designate critical habitat for the Gulf of 

Maine Distinct Population Segment 

(GOM DPS) of Atlantic salmon (Salmo 

salar). We previously determined that 

naturally spawned and several hatchery 

populations of Atlantic salmon which 

constituted the GOM DPS warrant 

listing as endangered under the 

Endangered Species Act of 1973, as 

amended (ESA). We are required to 

designate critical habitat for the GOM 

DPS as a result of this listing. We 

propose to designate as critical habitat 

45 specific areas occupied by Atlantic 

salmon at the time of listing that 

comprise approximately 203,781 km of 

perennial river, stream, and estuary 

habitat and 868 square km of lake 

habitat within the range of the GOM 

DPS and on which are found those 

physical and biological features 

essential to the conservation of the 

species. The entire occupied range of 

the GOM DPS in which critical habitat 

is being proposed is within the State of 

Maine. We propose to exclude 

approximately 1,463 km of river, stream, 

and estuary habitat and 115 square km 

of lake habitat from critical habitat 

pursuant to section 4(b)(2) of the ESA. 

DATES: Comments on this proposal must 

be received by November 4, 2008. Two 

public hearings on the proposed rule 

will be held in conjunction with the 

Atlantic salmon proposed listing rule 

(See the notice, Proposed Endangered 

Status for the Gulf of Maine Distinct 

Population Segment of Atlantic Salmon, 

published in the Proposed Rules section 

of the September 3, 2008, issue of the 

Federal Register) and we will alert the 

public of the locations and dates of 

those hearings in a subsequent Federal 

Register notice. 

ADDRESSES: You may submit comments, 

identified by RIN 0648–AW77, by any of 

the following methods: 

• Electronic Submission: Submit all 

electronic public comments via the 

Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• Mail: Assistant Regional 

Administrator, Protected Resources 

Division, NMFS, Northeast Regional 

Office, Protected Resources Division, 

One Blackburn Drive, Gloucester, MA 

01930. 

• Facsimile (fax) to: 207–866–7342, 

Attention: Dan Kircheis. 

Instructions: All comments received 

are a part of the public record and will 

generally be posted to http:// 

www.regulations.gov without change. 

All personal identifying information (for 

example, name, address, etc.) 

voluntarily submitted by the commenter 

may be publicly accessible. Do not 

submit confidential business 

information or otherwise sensitive or 

protected information. NMFS will 

accept anonymous comments (enter 

N/A in the required fields, if you wish 

to remain anonymous). Attachments to 

electronic comments will be accepted in 

Microsoft Word, Excel, Word Perfect, or 

Adobe PDF file formats only. 

The proposed rule, list of references 

and supporting documents, including 


jlentini on PROD1PC65 with PROPOSALS