RM04-7-003, Order Clarifying Final Rule (as published in Fed. Reg. 12/20/2007)

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Federal Register / Vol. 72, No. 244 / Thursday, December 20, 2007 / Rules and Regulations
a subsidiary. A savings and loan holding
company seeking approval of an
acquisition under this section must file
an application under 12 CFR part 516,
subpart A. Applications filed under this
section are subject to the publication,
public comment, and meeting
provisions of 12 CFR part 516, subparts
B, C, and D. OTS will review
applications filed under this section
under the review standards set forth for
savings and loan holding company
applications in section 10(e)(2) of the
HOLA, § 574.7(c) of this chapter, and
§ 563e.29(a) of this chapter.
(b) Certain acquisitions by multiple
savings and loan holding companies.
No multiple savings and loan holding
company (other than a savings and loan
holding company described in
§ 584.2a(a)(1)(ii) of this part) may,
directly or indirectly, or through one or
more subsidiaries or through one or
more transactions, acquire or retain
more than five percent of the voting
shares of any company that is not a
subsidiary that is engaged in any
business activity other than those
specified in § 584.2(b) of this part.
(c)(1) Exception for certain
acquisitions of voting shares of savings
associations and savings and loan
holding companies. Paragraphs (a) and
(b) of this section do not apply to voting
shares of a savings association or of a
savings and loan holding company—
(i) Held as a bona fide fiduciary
(whether with or without the sole
discretion to vote such shares);
(ii) Held temporarily pursuant to an
underwriting commitment in the normal
course of an underwriting business;
(iii) Held in an account solely for
trading purposes or over which no
control is held other than control of
voting rights acquired in the normal
course of a proxy solicitation;
(iv) Acquired in securing or collecting
a debt previously contracted in good
faith, for two years after the date of
acquisition or for such additional time
(not exceeding three years) as the Office
may permit if, in the Office’s judgment,
such an extension would not be
detrimental to the public interest;
(v) Acquired under section
13(k)(1)(A)(i) of the Federal Deposit
Insurance Act (or section 408(m) of the
National Housing Act as in effect
immediately prior to the enactment of
the Financial Institutions Reform,
Recovery and Enforcement Act of 1989);
(vi) Held by any insurance companies
as defined in section 2(a)(17) of the
Investment Company Act of 1940:
Provided, That all shares held by all
insurance company affiliates of such
savings association or savings and loan
holding company may not, in the

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aggregate, exceed five percent of all
outstanding shares or of the voting
power of the savings association or
savings and loan holding company, and
such shares are not acquired or retained
with a view to acquiring, exercising, or
transferring control of the savings
association or savings and loan holding
company; and
(vii) Acquired pursuant to a qualified
stock issuance if such a purchase is
approved pursuant to § 574.8 of this
chapter.
(2) The aggregate amount of shares
held under this paragraph (c) (other
than pursuant to paragraphs (c)(1)(i)
through (iv) and (c)(1)(vi) may not
exceed 15 percent of all outstanding
shares or the voting power of a savings
association or savings and loan holding
company.
(d) Acquisitions of uninsured
institutions. No savings and loan
holding company may, directly or
indirectly, or through one or more
subsidiaries or through one or more
transactions, acquire control of an
uninsured institution or retain, for more
than one year after the date any savings
association subsidiary becomes
uninsured, control of such association.
Dated: December 14, 2007.
By the Office of Thrift Supervision
John M. Reich,
Director.
[FR Doc. E7–24676 Filed 12–19–07; 8:45 am]
BILLING CODE 6720–01–P

DEPARTMENT OF ENERGY
Federal Energy Regulatory
Commission
18 CFR Part 35
[Docket No. RM04–7–003; 121 FERC ¶
61,260]

Market-Based Rates for Wholesale
Sales of Electric Energy, Capacity, and
Ancillary Services by Public Utilities
Issued December 14, 2007.

Federal Energy Regulatory
Commission, Department of Energy.
ACTION: Order Clarifying Final Rule.
AGENCY:

SUMMARY: The Federal Energy
Regulatory Commission (Commission) is
clarifying: the effective date for
compliance with the requirements of
Order No. 697; which entities are
required to file updated market power
analyses for the Commission’s regional
review; the data required for the
horizontal market power analyses; and
what constitute ‘‘seller-specific terms
and conditions’’ that sellers may list in

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72239

their market-based rate tariffs in
addition to the standard provisions
listed in Appendix C to Order No. 697.
FOR FURTHER INFORMATION CONTACT:
Paige C. Bullard, Office of the General
Counsel—Energy Markets, 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 Clarifying Final Rule
I. Introduction
1. On June 21, 2007, the Commission
issued Order No. 697,1 in which the
Commission revised and codified its
market-based rate policy for public
utilities. In the instant order, we make
several clarifications. First, we clarify
that, notwithstanding that Order No.
697 did not require market-based rate
sellers to make immediate compliance
filings amending their market-based rate
tariffs, the Commission intended that all
requirements and limitations applicable
to market-based rate sellers set forth in
Order No. 697 should become effective
on September 18, 2007. Second, we
clarify that transmission-owning
utilities with market-based rate
authority and their affiliates with
market-based rate authority must file
updated market power analyses for the
Commission’s regional review as
discussed herein. Third, we clarify the
data to be used in submitting the
horizontal market power indicative
screens and the Delivered Price Test
(DPT) analysis.
This requirement will apply to new
applications for market-based rate
authorization and updated market
power analyses, including the updated
market power analyses that must be
submitted for the Commission’s regional
review. As discussed below, for
purposes of the market power analyses
to be submitted in December 2007, we
will extend the date for filing such
analyses until 30 days after the date of
issuance of this order. Fourth, we clarify
that ‘‘seller-specific terms and
conditions’’ that go beyond the standard
provisions required in Appendix C of
Order No. 697, and that sellers are
permitted to list in their market-based
rate tariffs, are those tariff provisions
that are commonly found in power sales
agreements, such as creditworthiness,
force majeure, dispute resolution,
billing, and payment provisions.
1 Market-Based Rates for Wholesale Sales of
Electric Energy, Capacity and Ancillary Services by
Public Utilities, Order No. 697, 72 FR 39904 (July
20, 2007), FERC Stats. & Regs. ¶ 31,252 (2007).

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Federal Register / Vol. 72, No. 244 / Thursday, December 20, 2007 / Rules and Regulations

II. Background
2. In order to codify and revise its
market-based rate policy for wholesale
sellers of electric energy, capacity, and
ancillary services, as well as streamline
the administration of the market-based
rate program, the Commission in Order
No. 697 modified its regulations
governing market-based rate
authorization. Order No. 697 became
effective on September 18, 2007.
III. Discussion
3. In Order No. 697, the Commission
determined that continuing to allow
basic inconsistencies in market-based
rate tariffs due to the lack of consistent
form and content of certain key
provisions was unjust and unreasonable
under sections 205 and 206 of the
Federal Power Act (FPA). As such, the
Commission required that all marketbased rate sellers revise their respective
tariffs to contain standard required
provisions.2 Order No. 697 adopted two
standard required provisions that each
market-based rate seller must include in
its tariff: (1) A provision requiring
compliance with Commission
regulations at 18 CFR Part 35, Subpart
H; and (2) a provision identifying all
limitations and exemptions regarding
the seller’s market-based rate authority.3
Order No. 697 also adopted a set of
standard applicable provisions that
must be included in a seller’s marketbased rate tariff to the extent that they
are applicable based upon the services
that are provided by a seller.4

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A. Effective Date of Order No. 697
4. Rather than requiring sellers to
make immediate compliance filings
amending their market-based rate tariffs,
Order No. 697 instead required sellers to
amend their market-based rate tariffs to
include the required standard
provisions, as well as the required
applicable provisions, at the earliest of:
(1) The next time they file any other
amendment to their market-based rate
tariffs; (2) when they report a change in
status; or (3) when they file their
updated market power analyses.5
5. As the Commission stated in Order
No. 697, regardless of the date on which
market-based rate sellers make their
compliance filings, the tariff provision
providing that failure to abide by the
regulations will constitute a tariff
violation is considered part of each
seller’s current market-based rate tariff
as of the effective date of Order No. 697,
2 Order No. 697, FERC Stats. & Regs. ¶ 31,252 at
P 912–913.
3 Id. P 914–916.
4 Id. P 916.
5 Id. P 924.

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September 18, 2007.6 Notwithstanding
that Order No. 697 did not require
sellers to make immediate compliance
filings amending their market-based rate
tariffs,7 the Commission intended that
all requirements and limitations
applicable to market-based rate sellers
set forth in Order No. 697 should
become effective on September 18,
2007. To the extent that some sellers
may not be aware that, effective
September 18, 2007, provisions in their
market-based rate tariffs that are
inconsistent with the requirements of
Order No. 697 are no longer in effect, we
provide this clarification. While we do
not attempt in this order to provide an
exhaustive list of all of the applicable
requirements of Order No. 697, we do
provide a number of examples below for
illustrative purposes.
6. For example, the Commission
adopted in § 35.39(d) of the affiliate
restrictions codified in Order No. 697 a
two-way information sharing
restriction.8 The Commission
recognized that some sellers may need
to adjust their activities to comply with
the two-way information restriction.
The Commission stated that any sellers
whose activities had been governed by
a code of conduct with a one-way
information restriction will be deemed
to have adopted a two-way information
restriction as of the effective date of
Order No. 697.9
7. Similarly, in Order No. 697, the
Commission concluded that adequately
protecting customers from the potential
exercise of market power required that
it continue to apply mitigation to all of
a seller’s sales in the balancing authority
area in which a seller is found, or
presumed, to have market power.10 In
this regard, the Commission rejected
proposals that it limit mitigation to sales
that ‘‘sink’’ in the balancing authority
area where the mitigated seller is found,
or presumed, to have market power.11
Some mitigated sellers have tariff
language that is inconsistent with the
Commission’s current policy as set forth
in Order No. 697. These mitigated
sellers’ tariffs currently only prohibit
sales at market-based rates that ‘‘sink’’
in a balancing authority area in which
the mitigated seller has been found, or
6 Id.
7 Id.
8 18

CFR 35.39(d) (2007).
No. 697, FERC Stats. & Regs. ¶ 31,252 at

9 Order

P 588.
10 Id. P 817. Although the Commission used the
term ‘‘mitigated market’’ in Order No. 697, we
believe that ‘‘balancing authority area in which a
seller is found, or presumed, to have market power’’
is a more accurate way to describe the area in which
a seller is mitigated. Accordingly, we use that
phrase herein.
11 Id. P 818.

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presumed, to have market power. We
clarify that, although the Commission
may have previously accepted these
sellers’ provisions, effective September
18, 2007, all sellers are subject to the
requirements of Order No. 697 and thus
may not limit mitigation to sales that
‘‘sink’’ in the balancing authority area
where the mitigated seller has been
found, or presumed, to have market
power. Rather, such sellers are required
to comply with the mitigation policy as
stated in Order No. 697.
8. Accordingly, we clarify that,
effective September 18, 2007, provisions
in a seller’s previously-approved
market-based rate tariff that are
inconsistent with the requirements of
Order No. 697 are no longer in effect.
However, we will not pursue any
violations that resulted from the new
requirements in Order No. 697 that were
inconsistent with a seller’s previouslyapproved market-based rate tariff prior
to 30 days after the issuance of this
clarification order.
B. Entities Required To File Updated
Market Power Analyses for the
Commission’s Regional Review
9. In Order No. 697, the Commission
determined that it would conduct a
regional review of updated market
power analyses and set forth in
Appendix D the schedule for such
review.12 The first round of updated
market power analyses, for the
Northeast, are due in December 2007.
Order No. 697 states that ‘‘[t]he
transmission-owning utilities, which
have the information necessary to
perform [simultaneous import limit]
studies, will be required to file their
updated market power analyses first.’’ 13
Appendix D of Order No. 697 lists
‘‘Transmission Operators’’ as filing
updated market power analyses in the
regional reviews. Because there may be
confusion concerning which entities are
required to file updated market power
analyses as a result of the use of the
term ‘‘transmission operators’’ in
Appendix D of Order No. 697, we clarify
that transmission-owning utilities with
market-based rate authority and their
affiliates with market-based rate
authority must file the updated market
power analyses for the Commission’s
regional review. Accordingly, the term
‘‘Transmission Operators’’ in Appendix
D should instead be ‘‘Transmission
Owners.’’ A revised version of the
relevant table in Appendix D is
attached.
10. Further, we clarify that marketbased rate sellers that are affiliated with
12 Id.
13 Id.

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P 889.

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Federal Register / Vol. 72, No. 244 / Thursday, December 20, 2007 / Rules and Regulations
transmission-owning utilities and are
located in the same region 14 as their
transmission-owning utility affiliate
(either physically located in that region
such as a generation affiliate, or making
sales in that region such as an affiliated
power marketer) must file their updated
market power analyses during the same
review period as their transmissionowning utility affiliate. For example,
Order No. 697 stated that the first set of
updated market power analyses (for the
Northeast) would be filed in December
2007. This set of analyses should
include transmission-owning utilities
with market-based rate authority and all
of their affiliates with market-based rate
authority located in the same region
(either physically located in that region
such as a generation affiliate, or making
sales in that region). The second set of
updated market power analyses would
include all other sellers in the Northeast
and is due in June 2008.
C. Required Data for Horizontal Market
Power Analyses

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11. It has come to the Commission’s
attention that, for the purposes of the
horizontal market power analysis, there
may be confusion regarding whether
market shares calculated for the market
share screen and the DPT analysis
should be based on the four quarters of
the calendar year or the four seasons as
defined in the April 14 Order.15 As a
result, there may be confusion
concerning which data and market share
calculations must be submitted as part
of sellers’ updated horizontal market
power analyses. As we explained in
Order No. 697, the wholesale market
share analysis measures for each of the
four seasons whether a seller has a
dominant position in the market based
on the number of megawatts of
uncommitted capacity owned or
controlled by the seller as compared to
the uncommitted capacity of the entire
relevant market.16 Order No. 697 states
that the Commission will continue to
require the use of historical data for
both of the horizontal market power
indicative screens and the DPT analysis
in evaluating whether a seller may
possess market power, and states that
‘‘in light of adopting a regional
approach with regard to regularly
scheduled updated market power
14 In Order No. 697, the Commission identified
six regions (Northeast, Southeast, Central,
Southwest Power Pool, Southwest, and Northwest)
for purposes of the regional market power update
review process. Id. P 885.
15 AEP Power Marketing Inc., 107 FERC ¶ 61,018
at n.85 (April 14 Order), order on rehearing, 108
FERC ¶ 61,026 (2004).
16 Order No. 697, FERC Stats. & Regs. ¶ 31,252 at
P 34 (citing April 14 Order at P 100).

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analyses, we will require the use of the
actual historical data for the previous
calendar year.’’ 17 However, the
Commission’s April 14 Order, in
describing the seasons for the DPT,
defines the study periods (seasons) as:
Summer (June/July/August); Fall
(September/October/November); Winter
(December/January/February); and
Spring (March/April/May).18 We
understand that some have interpreted
Order No. 697 as revising the study
periods to be the four quarters of the
calendar year instead of the four
seasons. This was not the intention of
Order No. 697. Accordingly, we clarify
that market shares calculated for the
market share screen and the DPT
analysis should continue to be based on
the four seasons.19
12. In addition, we also clarify that, as
a general matter, the market share
studies performed in market-based rate
filings for both the preliminary screens
and the DPT analysis should be based
on the most recent available actual
historical data for each full season.
However, we recognize that it may be
appropriate to allow exceptions to this
general principle in certain limited
circumstances. We describe below how
this general principle should be applied
to applicants making various types of
market-based rate filings:
a. Updated market power analyses
(triennial reviews) for transmissionowning applicants: Transmissionowning applicants filing triennial
reviews in June or December should
base their market share analysis on the
actual historical data for the four
seasons (winter (December–February),
spring (March–May), summer (June–
August) and fall (September–
November)) ending November 30 of the
previous calendar year consistent with
Appendix D.20
b. Updated market power analyses for
applicants that do not own
transmission: Applicants that do not
own transmission should base their
market share analysis in their triennial
reviews on actual historical data using
the same seasons that were used in the
triennial reviews filed by the
transmission owners in their region
consistent with Appendix D. For
example, for transmission owners in the
Southeast filing triennial reviews in
June of 2008, the seasonal analysis
would be based on the following:
17 Id.

P 298.
14 Order at n.85.
19 Summer (June/July/August); Fall (September/
October/November); Winter (December/January/
February); and Spring (March/April/May).
20 The relevant tables in Appendix D to Order No.
697 have been revised to reflect this clarification
and are attached herewith.
18 April

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72241

December 2005, January 2006 and
February 2006 for winter; March 2006,
April 2006 and May 2006 for spring;
June 2006, July 2006 and August 2006
for summer; September 2006, October
2006 and November 2006 for fall
(because at the time of filing these
months had the most recently available
actual historical data for each of those
complete seasons). All other applicants
in the Southeast should base their
studies on these same seasons when
they file their triennials six months later
in December 2008.21
c. Transmission-owning applicants for
initial market-based rate authorization
or submission of a change in status
filing: Transmission-owning applicants
filing applications for initial marketbased rate authorization, or those
submitting a change in status filing,
should rely on the most recent available
actual historical data for each complete
season of: Winter (December–February),
spring (March–May), summer (June–
August) and fall (September–
November).
d. All other applicants: All other
applicants filing applications for initial
market-based rate authorization or
submitting change in status filings and,
which have to rely on other studies
because they do not have access to all
the needed data, should rely on the
same vintage data that were used in the
triennial reviews filed by the
transmission owners in their region
within the past year.22 If triennial
reviews were not filed by the
transmission owners in their region
within the past year, then the applicants
covered under this part may base their
market share analysis on either (i) the
most recently available actual historical
data for each complete season of: Winter
(December–February), spring (March–
May), summer (June–August) and fall
(September–November), or (ii) the same
seasons in their market share studies
that were used in the most recently filed
triennial studies submitted by the
transmission owners in their region,
provided that the non-transmission
owning applicant shows what its market
shares would have been in each season
21 As set forth in Order No. 697, Applicants that
do not own transmission are required to file their
triennials six months after the transmission owners
in that region filed their triennials. Order No. 697,
FERC Stats. & Regs. ¶ 31,252 at P 889.
22 Applicants in this category include those that
do not own transmission or do not have affiliates
that own transmission, as well as those that file a
market power study as part of their change in status
filing. Although applicants do not typically submit
market power studies as part of their change in
status filings, sometimes they do, and at other times
the Commission may require the submission of a
market power study at the time of a change in status
filing.

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based on those studies, and states
whether there would be a significant
increase in the market shares during any
season if more recent data had been
used (as well as the basis for this
claim).23
13. In light of these clarifications, we
will extend the deadline for filing the
first set of regional triennial studies that
we directed in Order No. 697 from
December 2007 to 30 days after the date
of issuance of this order. Furthermore,
we will not require those entities that
have already submitted their updated
market power studies for the December
filing period to file revisions to those
studies if they were based on calendar
year quarters, rather than the approach
set forth in (a) above.
D. Seller-Specific Terms and Conditions
14. In Order No. 697, the Commission
required that all sellers include in their
respective market-based rate tariffs
certain standard required provisions
and standard applicable provisions to
the extent that they are applicable based
on the services provided by the seller.24
The Commission also explained that it
would permit sellers to list in their
market-based rate tariffs additional
terms and conditions that go beyond the
standard provisions set forth in
Appendix C.25 The Commission stated
that it recognized benefits to both sellers

and customers of having terms and
conditions relevant to the seller’s
market-based rate power sales available
in one document.
15. In order to ensure full compliance
with the tariff requirements set forth in
Order No. 697, we clarify that ‘‘sellerspecific terms and conditions’’ are those
provisions that are commonly found in
power sales agreements, such as
creditworthiness, force majeure, dispute
resolution, billing, and payment
provisions. As the Commission noted in
Order No. 697, it has been our practice
not to evaluate these types of terms and
conditions once the seller is authorized
to sell power at market-based rates, but
to allow them to be included in the
market-based rate tariff that is on file
with the Commission. We clarify,
however, that we did not intend that
‘‘seller-specific terms and conditions’’
include other ‘‘services’’ offered by the
seller beyond those set forth in
Appendix C.
IV. Conclusion
16. In sum, to the extent that it was
not clear in the Final Rule that all
requirements and limitations of Order
No. 697 became effective on September
18, 2007, we hereby clarify that sellers
are required to comply with all of the
requirements of Order No. 697 as of the
effective date of the Final Rule, even if

sellers have previously-approved tariff
provisions to the contrary. Thus, any
sales made after September 18, 2007 are
expected to be in compliance with the
requirements of Order No. 697. We also
clarify that both transmission-owning
utilities with market-based rate
authority and their affiliates with
market-based rate authority are required
to file updated market power analyses
for the Commission’s regional review as
discussed herein. We clarify that we
will require use of the actual historical
data through November of the previous
calendar year, including data from
December of the prior year, for both of
the horizontal market power screens
and the DPT analysis as discussed
herein. Additionally, we clarify that
‘‘seller-specific terms and conditions’’
are those tariff provisions that are
commonly found in power sales
agreements, such as creditworthiness,
force majeure, dispute resolution,
billing, and payment provisions.
‘‘Seller-specific terms and conditions’’
do not, however, include other
‘‘services’’ offered by the seller.
By the Commission.
Nathaniel J. Davis, Sr.,
Deputy Secretary.

Regional Review Schedule for Sellers
Filing Triennial Reviews

APPENDIX D
Filing period
(anytime during the month)

Entities required to file

Study period

Schedule for Transmission Owning Utilities With Market-Based Rate Authority and Their Affiliates in the Same Region
Northeast Transmission Owners ..............................................................
Southeast Transmission Owners ..............................................................
Central Transmission Owners ..................................................................
SPP Transmission Owners .......................................................................
Southwest Transmission Owners .............................................................
Northwest Transmission Owners ..............................................................
Northeast Transmission Owners ..............................................................
Southeast Transmission Owners ..............................................................
Central Transmission Owners ..................................................................
SPP Transmission Owners .......................................................................
Southwest Transmission Owners .............................................................
Northwest Transmission Owners ..............................................................

December, 2007 .............................
June, 2008 ......................................
December, 2008 .............................
June, 2009 ......................................
December, 2009 .............................
June, 2010 ......................................
December, 2010 .............................
June, 2011 ......................................
December, 2011 .............................
June, 2012 ......................................
December, 2012 .............................
June, 2013 ......................................

Dec.
Dec.
Dec.
Dec.
Dec.
Dec.
Dec.
Dec.
Dec.
Dec.
Dec.
Dec.

1,
1,
1,
1,
1,
1,
1,
1,
1,
1,
1,
1,

2005–Nov.
2005–Nov.
2006–Nov.
2006–Nov.
2007–Nov.
2007–Nov.
2008–Nov.
2008–Nov.
2009–Nov.
2009–Nov.
2010–Nov.
2010–Nov.

30,
30,
30,
30,
30,
30,
30,
30,
30,
30,
30,
30,

2006.
2006.
2007.
2007.
2008.
2008.
2009.
2009.
2010.
2010.
2011.
2011.

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Schedule for All Other Entities
All others in Northeast that did not file in December including all power
marketers that sold in the Northeast.
All others in Southeast that did not file in June including all power marketers that sold in the Southeast and have not already been found to
be Category 1 sellers.
All others in Central that did not file in December including all power
marketers that sold in the Central and have not already been found
to be Category 1 sellers.
23 We note that the Commission reserves the right
to require an updated market power analysis at any
time and may request the applicant to use the most
recently available actual historical data for each

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Jkt 214001

June, 2008 ......................................

Dec. 1, 2005–Nov. 30, 2006.

December, 2008 .............................

Dec. 1, 2005–Nov. 30, 2006.

June, 2009 ......................................

Dec. 1, 2006–Nov. 30, 2007.

complete season of: Winter (December–February),
spring (March–May), summer (June–August) and
fall (September–November).

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24 Order No. 697, FERC Stats. & Regs. ¶ 31,252 at
P 914–917. These standard provisions are listed in
Appendix C to Order No. 697.
25 Id. P 919, 927.

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Federal Register / Vol. 72, No. 244 / Thursday, December 20, 2007 / Rules and Regulations

72243

APPENDIX D—Continued
Entities required to file

Filing period
(anytime during the month)

All others in SPP that did not file in June including all power marketers
that sold in SPP and have not already been found to be Category 1
sellers.
All others in Southwest that did not file in December including all power
marketers that sold in the Southwest and have not already been
found to be Category 1 sellers.
All others in Northwest that did not file in June including all power marketers that sold in the Northwest and have not already been found to
be Category 1 sellers.
Others in Northeast that did not file in December and have not been
found to be Category 1 sellers.
Others in Southeast that did not file in June and have not been found
to be Category 1 sellers.
Others in Central that did not file in December and have not been
found to be Category 1 sellers.
Others in SPP that did not file in June and have not been found to be
Category 1 sellers.
Others in Southwest that did not file in December and have not been
found to be Category 1 sellers.
Others in Northwest that did not file in June and have not been found
to be Category 1 sellers.

December, 2009 .............................

Dec. 1, 2006–Nov. 30, 2007.

June, 2010 ......................................

Dec. 1, 2007–Nov. 30, 2008.

December, 2010 .............................

Dec. 1, 2007–Nov. 30, 2008.

June, 2011 ......................................

Dec. 1, 2008–Nov. 30, 2009.

December, 2011 .............................

Dec. 1, 2008–Nov. 30, 2009.

June, 2012 ......................................

Dec. 1, 2009–Nov. 30, 2010.

December, 2012 .............................

Dec. 1, 2009–Nov. 30, 2010.

June, 2013 ......................................

Dec. 1, 2010–Nov. 30, 2011.

December, 2013 .............................

Dec. 1, 2010–Nov. 30, 2011.

[FR Doc. E7–24736 Filed 12–19–07; 8:45 am]
BILLING CODE 6717–01–P

DEPARTMENT OF STATE
22 CFR Part 22
RIN 1400–AC42
[Public Notice: 6035]

Schedule of Fees for Consular
Services, Department of State and
Overseas Embassies and Consulates
Department of State.
Interim final rule.

AGENCY:
ACTION:

yshivers on PROD1PC62 with RULES

SUMMARY: This rule amends the
Schedule of Fees for Consular Services.
Specifically, it raises from $100 to $131
the fee charged for the processing of an
application for a nonimmigrant visa
(MRV) and Border Crossing Card (BCC)
and increases the immigrant visa fee by
$20.00. The Department of State is
adjusting the fees as an emergency
measure to ensure that sufficient
resources are available to meet the costs
of processing non-immigrant and
immigrant visas in light of increased
security measures put in place since
2004 and fee collection mandates on
behalf of the Federal Bureau of
Investigation.

Effective date: This interim final
rule becomes effective January 1, 2008.
Comment date: The Department of
State will accept written comments from
interested persons up to February 29,
2008.

DATES:

VerDate Aug<31>2005

15:40 Dec 19, 2007

Jkt 214001

Interested parties may
submit comments by any of the
following methods:
• Persons with access to the Internet
may view this notice and submit
comments by going to the
regulations.gov Web site at: http://
www.regulations.gov/index.cfm.
• Mail (paper, disk, or CD–ROM): U.S.
Department of State, Office of the
Executive Director, Bureau of Consular
Affairs, U.S. Department of State, Suite
H1004, 2401 E Street, NW., Washington,
DC 20520.
• E-mail: fees@state.gov. You must
include the RIN (1400–AC42) in the
subject line of your message.
FOR FURTHER INFORMATION CONTACT:
Suzanne Inzerillo, Office of the
Executive Director, Bureau of Consular
Affairs, Department of State; phone:
202–663–3923, telefax: 202–663–2499;
e-mail: fees@state.gov.
SUPPLEMENTARY INFORMATION:
ADDRESSES:

Background
What Is the Authority for This Action?
The majority of the Department of
State’s consular fees are established
pursuant to the general user charges
statute, 31 U.S.C. 9701 (which directs
that certain government services be selfsustaining to the extent possible), and/
or title 22 U.S.C. 4219, which as
implemented through Executive Order
10718 of June 27, 1957, authorizes the
Secretary of State to establish fees to be
charged for official services provided by
U.S. embassies and consulates. In
addition, a number of statutes address
specific fees. A cost-based,
nonimmigrant visa processing fee for

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Study period

the machine readable visa (MRV) and
for a combined border crossing and
nonimmigrant visa card (BCC) (see 22
CFR 41.32) is authorized by section
140(a) of the Foreign Relations
Authorization Act, Fiscal Years 1994
and 1995, Public Law 103–236 (April
30, 1994), as amended. Various statutes
permit the Department to retain some of
the consular fees it collects, including
the MRV and MRV/BCC fees. Section
103 of the Enhanced Border Security
and Visa Entry Reform Act of 2002,
Public Law 107–173 (May 14, 2002),
amended section 140(a) of Public Law
103–236 to permit the Department to
retain all MRV fees until they are
expended. Public Law 103–317 (FY 95
CJS Appropriation Act, 8 U.S.C. 1356
note) gives retention authority for an
increase to IV fees ‘‘caused by
processing an applicant’s fingerprints.’’
Consistent with OMB Circular A–25
guidelines, the Department conducted a
Cost of Service Study (COSS) from
January 2003 to June 2004 to update the
Schedule of Fees for Consular Services.
The results of that study were the
foundation of the current Schedule,
which was published as a final rule on
February 2, 2005, at Volume 70, No. 21
FR Doc. 05–1930. The Schedule went
into effect on March 8, 2005. The $100
MRV fee, however, was based on the
previous COSS completed in 2002 and
was not raised as a result of the 2004/
2005 COSS, which indicated that the
actual cost for MRV services was
$107.32. The Department intends to
initiate collection of the fee at the
increased rate on January 1, 2008.
Furthermore, on January 1, 2008, the

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